J. PAUL JOSEPH Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE prayer in the writ petition is as follows:

(2.) IT is alleged in the affidavit filed in support of the writ petition that the Petitioner is the eldest son of a farmer's family. He along with his father was involved in a criminal offence under Section 302 read with Section 34,I.P.C. and both of them were convicted and sentenced to undergo imprisonment for life by the learned First Additional Sessions Judge, Tirunelveli on 25.9.1981 and the said sentence was confirmed by this Court in C.A. No. 612 of 1981 on 21.12.1983. While undergoing imprisonment, the Petitioner passed M. Sc.,(Maths) in first class as a private candidate of Madurai Kamaraj University during 1982 -84. It seems that the Petitioner was selected for 3 years B.L. Degree Course (Regular) at Government Law College, Tiruchirapalli and he was transferred to Central Prison, Tiruchirapalli from the Central Prison, Palayamkottai and permitted to attend the Law College daily from the prison without any escort and this was done in 1985. The Petitioner passed the law examination in the first rank of Bharathidasan University during 1984 -87. It seems that the Petitioner, apart from his academic and legal interest, was an active member of the National Service Scheme with the spirit of service mind and he was selected as the N.S.S. Best Volunteer, 1987 and was honoured with a shield to that effect and the Principal of the Law College certified him of an exemplary character. On successful completion of the law course, the Petitioner for his re -transfer of Central Prison, Palayamkottai. The Supreme Court recommended to the State of Tamil Nadu for the release of the Petitioner in S.L.P. (Crl.) No. 891/86 on 13.3.1988 observed as follows:

(3.) NOTICE of motion was ordered by me on 12.10.1990. Mr. P. Gunaraj, Additional Government Pleader (Writs) appears for the Respondents. A counter affidavit has been filed by the State wherein it is stated that the first Respondent considered the recommendation of the Supreme Court of India with reference to the provisions under Article 161 of the Constitution of India and it was considered that there are no sufficient grounds to release the Petitioner who has been found guilty of a grave offence of murder and the Petitioner was convicted and sentenced to imprisonment for life only on 25.9.1981 and therefore he is eligible for consideration for premature release under Advisory Board Scheme only on completion of 14 years of actual sentence as per Section 433A, Code of Criminal Procedure and R. 341 of the Tamil Nadu Prison Manual, Volume II. It is also stated that as per Section 433A, Code of Criminal Procedure prisoners sentenced to imprisonment for life on or after 18.12.1978 should not be released before completion of 14 years of imprisonment and this was enunciated by the Supreme Court in the decision Maruram v. Union of India and Ors. ( : AIR 1980 SC 2147) and that the Petitioner had undergone eight years, ten months and nine days of actual sentence as on 30.11.1990. It is stated that it is not correct to state that the conduct of the prisoner in the prison is exemplary as contended by him and he has committed two prison offences. In paragraph 6 of the counter affidavit, the allegations made in paragraph 7 of the affidavit filed in support of the writ petition are denied. It is stated that the Supreme Court of India in Special Leave Petition (Criminal) 891/86 dated 14.3.1988 made a recommendation to the State of Tamil Nadu to consider the Petitioner's claim for remission of the balance of sentence and the recommendation was considered in right earnest by the State and it was found that there was no sufficient ground for remitting the unexpired portion of the sentence of the Petitioner. It is also stated that the allegation that the discretionary power under Article 161 of the Constitution of India was arbitrarily and unreasonably exercised is not correct. It is further stated in the counter affidavit that the Petitioner's father had expired on 20.3.1989 due to Myocardial infection. It is also submitted in the counter affidavit that the Supreme Court has held that Section 433A will not affect the constitutional power of Article 161 of the Constitution and in the opinion of the Governor of Tamil Nadu there were no special grounds to consider the Petitioner's case under the said Article, and the power to remit the unexpired portion of sentence of a prisoner under Article 161 of the Constitution is a prerogative power of the President of India/Governor. It is also submitted that "all are equal before law" irrespective of the status of the individual and merely because the Petitioner had passed M. Sc., and B.L., while undergoing sentence, it does not confer any special right and special privilege in the eye of law to get him released automatically by remitting the unexpired portion of his sentence, and if the Petitioner is prematurely released automatically under remission of sentence without considering the demerits of his case, it will lead to similar claims by all the prisoners who have passed M.A. or other Post Graduate Course etc., and also who acquired academic excellence. It is stated that the Petitioner has undergone 8 years, 10 months and 9 days of actual sentence and 11 year 4 months and 3 days including remission as on 30.11.1990.