Ramesh K.S v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942** **WP(C).No.2377 OF 2021(V)** ## **PETITIONER/S:** **RAMESH K.S AGED 52 YEARS SHANKUNNI, KALLARIKKAL HOUSE, OLLARIKKARA, PULLAZHI P.O.THRISSUR-680 012.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.V.C.SARATH SRI.VIPIN NARAYAN SRI.AJEESH K.SASI SMT.POOJA PANKAJ SRUTHY N. BHAT** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2 STATE LEVEL COMMITTEE, CONSTITUTED FOR EXAMINING THE PREMATURE, RELEASE OF LIFE CONVICTS, REPRESENTED BY ITS CHAIRMAN AND CONVENER, (ADDL CHIEF SECRETARY VIGILANCE), KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3 THE STATION HOUSE OFFICER, THRISSUR TOWN WEST POLICE STATION, THRISSUR-680 009.** ## **OTHER PRESENT:** ## **SR.PP.SUMAN CHAKRAVARTHY FOR DGP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-** **02-2021, THE COURT ON 05-02-2021 DELIVERED THE FOLLOWING:** **WP(C)No.2377 OF 2021(V)** 2 ## **JUDGMENT** **Dated this the 5[th] day of February, 2021** **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** **WP(C)No.2377 OF 2021(V)** 3 **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**_ _**[ILR 2019 (1) 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** **WP(C)No.2377 OF 2021(V)** 4 **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** **WP(C)No.2377 OF 2021(V)** 5 **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:** **“** _**(i) Issue a writ of Certiorari or any other appropriate writ, order or direction quashing Exhibit P2 and P3.**_ _**(ii) Issue a Writ of Mandamus or any other appropriate Writ, Order or direction declaring the petitioner to be entitled for probation.”**_ **3. Heard Sri.M.Revikrishnan, learned Counsel** **WP(C)No.2377 OF 2021(V)** 6 **for the petitioner and Sri.Suman Chakravarthy, learned Senior Public Prosecutor.** **4. The learned Counsel for the petitioner relied on Ext.P6 interim order of this Court, which according to him was rendered in a similar writ petition, and submitted that the petitioner is entitled for an identical order. It is contended that having released the petitioner as per Ext.P1, the Government could not have ordered his re-incarceration without even affording an opportunity of hearing. According to the learned Counsel, quashing of Ext.P1 by the Full Bench of this Court does not absolve the Government from complying with the fundamental principles of natural justice and fair play. The further contention is that the reason for re-incarceration being not discernible from Annexure 2, is indicative absolute non-application of mind.** **WP(C)No.2377 OF 2021(V)** 7 **5. To counter the contentions, the learned Senior Public Prosecutor relied on the findings of the Full Bench in** _**Suo Motu and others v. State of Kerala and others [ILR 2019 (1) Ker.227]**_ **, particularly paragraph 25 of the judgment, which** ## **is extracted hereunder:-** **“** _**We are mindful of the fact that the 209 prisoners covered by the impugned Government Order have since been released and, during the pendency of these writ petitions, have been living as free persons in society. While the natural legal consequence of our quashing the Government Order that led to their premature release would have been to subject them to immediate re-incarceration pending a fresh decision of the Governor, we refrain from issuing such a direction solely because many of them are not parties in the writ petitions before us. That apart, we are of the view that their conduct subsequent to their release, over the last seven years and more, should also be taken into consideration by the State Government/Governor while reconsidering their case for pre-mature release from prison. The State Government/Governor shall, at the time of reconsideration of the matter, proceed with the clear understanding that, in the case of prisoners who would otherwise fall within the ambit of Section 433A of the Cr.PC, their pre-mature release, before the expiry of the period of fourteen**_ **WP(C)No.2377 OF 2021(V)** 8 _**years of actual imprisonment, should only be in exceptional cases where a perusal of the police report, probationary officers report and other facts brought to their notice, read with the relevant guidelines framed by the State Government for exercise of the power under Article 161 of the Constitution, warrant a deviation from the statutory prescription under Section 433A of the Cr.PC. We make it clear that if no decision is taken by the functionaries under Article 161 within the said period of six months, then it will be deemed that there is no exercise of the power under Article 161 in favour of the prisoners concerned and steps shall be taken to re-incarcerate such prisoners for serving out the remainder of their sentence. Issues (I) and (II) are accordingly answered in the affirmative, and W.P.(C).Nos.14628/2011, 8959/2011 and 9463/2011 disposed on that basis.”**_ **It is argued that the Full Bench having specifically directed the Government to consider premature release of the prisoners only in exceptional cases, where the police report, probationary officer's report and other facts, read along with the relevant the guidelines framed by the State Government, warrant a deviation from the statutory prescription under Section 433A.** **WP(C)No.2377 OF 2021(V)** 9 **Hence, there was no requirement of hearing the prisoners, who did not satisfy the conditions highlighted in the judgment. It is pointed out that the petitioner got involved in two crimes after his release and therefore, did not satisfy the parameters set out by the Full Bench. It is submitted that the petitioner had completed only 7 years 3 months and 20 days of imprisonment as on 18.02.2011 and therefore, even with remission, he was not entitled for release under Ext.P1.** **6. In reply, the learned Counsel for the petitioner contended that even if the petitioner did not satisfy the conditions, he ought to have been put on notice regarding that fact, as the thread of reasonableness is bound to run through every administrative action. Strong objection is taken against the submission that the petitioner did not satisfy the requirement under Ext.P1. It** **WP(C)No.2377 OF 2021(V)** 10 **is argued that such reason having not been stated in Ext.P2, submission to that effect should not be entertained.** **7. Ext.P1 order under which the petitioner was released having been set aside by this Court, the short question to be considered is whether the petitioner was entitled to be heard before ordering his re-incarceration as per Ext.P2. The answer to this question is available from paragraph 25 of the Full Bench judgment extracted above. After quashing Ext.P1, it was observed that the natural legal consequence of quashing the Government order would have been to subject the prisoners to immediate re-incarceration, pending** **fresh decision of the Governor. The court refrained from issuing such direction, since many of the prisoners were not parties to the writ petitions. It was directed that, while re-** **WP(C)No.2377 OF 2021(V)** 11 **considering the case of the prisoners for premature release, their conduct subsequent to the release should also be taken into consideration. It was made clear that such premature release, before expiry of the period of actual imprisonment, should only be in exceptional cases where perusal of the police report, probationary officer's report and other facts read with the relevant guidelines framed by the State Government for exercise of the power under Article 161 of the Constitution, warrant a deviation from the statutory prescription under Section 433A of the Cr.P.C. It is pertinent to note the observation of the Full Bench that in case of the Government failing to take a decision within six months, it will be deemed that there is no exercise of power under Article 161 in favour of the prisoners concerned and steps shall be taken to re-** **WP(C)No.2377 OF 2021(V)** 12 **incarcerate such prisoners for serving out the remainder of their sentence. It is hence clear that by virtue of the Fill Bench judgment, all 209 prisoners were liable to be re-incarcertaed, but, on humanitarian consideration, the Full Bench allowed the Government to consider the cases of prisoners who could be granted exemption from reincarceration based on their exceptional conduct and favourable reports from all authorities. Therefore, the consideration was with respect to the prisoners who could be exempted and not about those who were to be re-incarcerated. Being so, the principle of** _**audi alteram partem**_ **has no application. As is evident from Ext.P2, the petitioner did not satisfy the strict conditions imposed for being exempted from re-incarceration, since the State Police Chief did not recommend the petitioner's case, for reason of the petitioner's** **WP(C)No.2377 OF 2021(V)** 13 ## **involvement in two crimes after his release.** **8. As regards the contention based on Ext.P6 interim order, it needs no reiteration that interim orders, unlike judgments, do not have any persuasive effect. For the reasons aforementioned, the challenge against Ext.P2 and consequent action fails.** **In the result, the writ petition is** **dismissed.** **sd/V.G.ARUN JUDGE** **Scl/** **WP(C)No.2377 OF 2021(V)** 14 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE GO(MS) NO 47/2011/HOME ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE GO (MS) NO 202/202/HOME DATED 28.10.2020 ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 18.12.2020 ISSUED BY THE ADDITIONAL SESSIONS COURT-1 THRISSUR** **EXHIBIT P4 TRUE COPY OF THE RTI ISSUED BY STATE PUBLIC INFORMATION OFFICER, RIGHT TO INFORMATION ACT AND INSPECTOR THRISSUR WEST POLICE STATION** **EXHIBIT P5 TRUE COPY OF THE BOND DATED 18.2.2011** **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 18.12.2020 IN WPC NO 26179/2020 OF THIS HON'BL COURT**