RAMESH K. S. SHANKUNNI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, while undergoing imprisonment at the Open Prison, Cheemeni, pursuant to his conviction for the offence under Section 302 IPC, was released on 18.2.2011. The petitioner s release was based on G.O.(MS)No.47/2011/HOME dated 18.02.2011 (Ext.P1), by which the Government ordered premature release of 209 prisoners who had completed imprisonment of 10 years (with remission) and above and in whose cases, favourable reports, either from the police or probation officer or both, had been received. Later, the release of 209 prisoners, including the petitioner, in terms of Ext.P1 was subjected to challenge before this Court in a series of writ petitions. The writ petitions were referred to the Full Bench and the question whether, Ext.P1 is liable to be interfered with on the ground that the order was the result of arbitrary exercise of power under Article 161 of the Constitution, was decided by the Full Bench as per the decision in Suo Motu and others v. State of Kerala and others , 2019 1 ILR(Ker) 227. After careful consideration of the question, it was found that the power under Article 161 had been exercised without the Government applying its mind to the individual cases, before determining whether there were exceptional circumstances warranting departure from the restriction, on the power of remission and commutation, imposed by Section 433A of the Cr.P.C. The Full Bench held that the lapse on the part of the State Government had vitiated the order and the approval granted by the Governor. Consequently, Ext.P1 was quashed and the Government was directed to examine the proposal for premature release of the 209 prisoners, afresh. Accordingly, the Government constituted a State Level Committee to examine the case of each prisoner individually, in order to ascertain whether a departure from the statutory prescription under Section 433A Cr.P.C is required.

(2.) The State Level Committee, after analysing each case, observed that among the 209 prisoners, 22 had expired, 27 had involved in criminal cases after release and the remaining 160 were not involved in any criminal activity and had lived with good conduct, as per the reports received from the Police and Probation Officers. After considering the report of the Committee, the Government issued G.O.(MS) No.202/2020/HOME dated 28.10.2020 directing 30 persons from among the 209 to be re-incarcerated, for completing the remaining period of their sentence, as they had either been involved in criminal cases after release or the Police/Probation report in their case being negative. The remaining 157 persons were allowed to continue in release after remitting their remaining period of sentence. The petitioner being one among the 30 ordered to be re-incarcerated, was issued with Ext.P3 summons from the trial court. Aggrieved by Ext.P2, to the extend it orders re-incarceration of the petitioner, this writ petition is filed, seeking the following reliefs:

(3.) Heard Sri.M.Revikrishnan, learned Counsel for the petitioner and Sri.Suman Chakravarthy, learned Senior Public Prosecutor.