S NALINI Vs. STATE OF TAMIL NADU; ADDITIONAL DIRECTOR GENERAL OF POLICE & INSPECTOR GENERAL OF PRISONS; SUPERINTENDENT OF PRISON, SPECIAL PRISON FOR WOMEN

JUDGEMENT

(1.) The petitioner is a life convict and she would state that she was convicted and sentenced to death in Rajiv Gandhi Assassination Case and her conviction and sentence of death, awarded by the Trial Court for the offence under Section 120-B read with Section 302 IPC, was confirmed by the Hon'ble Supreme Court of India, vide order dated 11.05.1999 in Death Reference Case No.1 of 1998 etc. The sentence of death awarded to the petitioner was commuted to rigorous imprisonment for life by the first respondent under Article 161 of the Constitution of India on 24.04.2000. The petitioner would further state that the date of conviction was 28.01.1998 and her death sentence was commuted to life imprisonment on 24.04.2000 and she had completed the sentence of imprisonment for more than 22 years.

(2.) The grievance expressed by the petitioner is that though about 2200 life convicts who had served ten years of imprisonment and less were released by the first respondent in exercise of powers under Article 161 of the Constitution of India, her case has not been considered on the ground that it falls under Section 435 of the Code of Criminal Procedure, 1973. The petitioner also placed reliance upon Letter (FS)No.1358, Home dated 10.11.1994 of the first respondent, wherein the Government of Tamil Nadu, Home Department directed the Inspector General of Prisons, Madras-2 to forward necessary proposals in respect of such convicts who come within the purview of G.O.Ms.No.1762, Home dated 20.07.1987 for consideration under Article 161 of the Constitution of India and her case falls within the ambit of the said letter. It is also stated by the petitioner that in respect of a life convict, namely Raju @ Subburaj, who was convicted by the Trial Court for the commission of offences under Sections 302, 376 and 417 IPC and sentenced to death by the Trial Court, on appeal the sentence of death was modified to one of life imprisonment and though his request for premature release was rejected, later on positively considered and accordingly, he was released prematurely on humanitarian ground under Article 161 of the Constitution of India, vide G.O.(Ms)No.428, Home (Prison-IV) Department dated 29.07.2011 and in the light of the said fact also, the petitioner is eligible to be considered for premature release. The petitioner, in this regard, has submitted a representation dated 22.02.2014 to the first respondent through proper channel and since no orders have been passed, came forward to file this writ petition.

(3.) Mr.M.Radhakrishnan, learned counsel appearing for the petitioner has drawn the attention of this Court to the materials placed and typed of documents and would submit that even in respect of a worst case of convict, who was convicted for the offences under Sections 302, 376 and 417 IPC was favourably considered for premature release under Article 161 of the Constitution of India and whereas the request of the petitioner, who is languishing in prison for more than 22 years have not been considered at all despite the representation dated 22.02.2014. The learned counsel appearing for the petitioner has drawn the attention of this Court to the Constitution Bench Judgment of the Hon'ble Supreme Court of India in Union of India v. V.Sriharan @ Murugan & Others, 2015 13 Scale 165 and would submit that the Supreme Court, while answering Question Nos.52.1 to 52.5 had observed that the right to claim remission, commutation, reprieve etc. as provided under Article 72 or Article 161 of the Constitution will always be available being Constitutional Remedies untouchable by the Court and that the powers under Sections 432 and 433 CrPC are to be exercised by the Appropriate Government statutorily and it is always left to be decided by the Appropriate Government and the cases which fall within the four corners of Section 432(7)(a) CrPC by virtue of specific Executive Power conferred on the Centre, the same will clothe the Union Government the primacy with the status of Appropriate Government and barring the said provision, in all other cases where the offender is sentenced or the sentence order is passed within the territorial jurisdiction of the concerned State, the State Government would be the Appropriate Government and in the light of the said authoritative pronouncement, there cannot be any impediment on the part of the first respondent to consider and dispose of the petitioner's representation for premature release positively and appropriate directions may be given to the first respondent to pass orders on the representation of the petitioner at the earliest.