High Court of KeralaSingle JudgeW.P.(C) No.15495 of 2021 is dismissed as infruc...

Shyamala M.K. v. State of Kerala

Case / Petition Number:W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Bechu Kurian Thomas
Judgment Date
2023-07-20
Court Decision / Holding
In the result, W.P.(C) No.15495 of 2021 is dismissed as infructuous, while W.P.(Crl.) No.284 of 2023 is dismissed on merits.
Final Disposition
W.P.(C) No.15495 of 2021 is dismissed as infructuous; W.P.(Crl.) No.284 of 2023 is dismissed on merits.

Parties to the Case

Appellants / Petitioners

  • Shyamala M.K.
  • Vinu S. @ Vinod S.

Respondents

  • State of Kerala
  • Director General of Prison and Correctional Services, Head Office, Jail Department, Government of Kerala
  • Superintendent, Central Prison and Correctional Home, Poojappura, Thiruvananthapuram
  • State Level Advisory Committee (Additional Chief Secretary), Home and Vigilance, Government Secretariat

Legal Representation & Advocates

Counsels for Petitioners

  • • K.S. Madhusoodanan
  • • M.M. Vinod Kumar
  • • P.K. Rakesh Kumar
  • • K.S. Mizver
  • • M.J. Kirankumar

Counsels for Respondents

  • • K. A. Noushad (Public Prosecutor)

Case Synopsis & Summary

This is a Kerala High Court judgment delivering a consolidated decision on W.P.(C) No.15495 of 2021 and W.P.(Crl.) No.284 of 2023, arising from life-convict Shyamala M.K. and the convict (convict No.3860) challenging orders denying premature release/commutation under Article 161 of the Constitution and CrPC 432-433. The petitioner-convict had undergone extensive imprisonment (more than 16 years in actual confinement) and is reported to be suffering from tongue cancer (squamous cell carcinoma) with treatment at RCC, Thiruvananthapuram. The Jail Advisory Board did not recommend release, but the State Level Advisory Committee recommended premature release on 26.09.2022. Following interim directions, the Government issued a fresh rejection on 24.12.2022 and 09.03.2023, prompting the petitions. The court held that life sentences are effectively lifelong, and remission alone does not vest a right to premature release; the Government retains discretion, and the recommendatory bodies’ opinions are not binding, though to be considered with adequate reasoning. The court discussed the constitutional scheme: Article 161 orders must reflect ministerial advice and be issued by the Government, not the Governor in isolation; judicial review is narrow and cannot substitute the Government’s decision. Citing Laxman Naskar, Samsher Singh, Maru Ram, and distinguishing A.G. Perarivalan, the court concluded there is no right to release and declined to interfere.

Provisions of Law Cited

Article 161 of the Constitution of IndiaSections 432 and 433 of the Code of Criminal Procedure, 1973Section 433A of CrPC, 1973Rule 457 of the Kerala Prisons and Correctional Services (Management) Rules, 2014Kerala Prisons and Correctional Services (Management) (Amendment) Rules, 2021Article 226 of the Constitution of India

Legal Doctrines & Maxims

  • No convict has a right to claim premature release.
  • Governor acts on aid and advice of the Council of Ministers; the Governor is the shorthand expression for the State Government.
  • Life sentence means lifelong imprisonment; remission does not automatically confer a right to release.
  • Recommendations of Jail Advisory Board and State Level Advisory Committee are advisory, not binding on the Government.
  • Judicial review under Article 226 is limited to the decision-making process rather than substituting the Government’s decision.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the convict has undergone 24 years of imprisonment including remission and suffers from cancer of the tongue, being treated at the RCC. They pointed to the State Level Advisory Committee’s 26.09.2022 recommendation for premature release and the Government’s subsequent orders (24.12.2022 and 09.03.2023) rejecting relief. They argued that proper consideration of medical reports, rehabilitation prospects, and mitigating factors necessitates release under Article 161/CrPC 432-433. They sought quashing of the Government orders and asserted that the Government must issue a speaking order addressing the various reports and minutes, and that the convict is not divested of his rights by mere illness when other convicts with lesser crimes have been released. They pressed the principle that life sentences are exceptional and subject to due, reasoned exercise of power by the Government; court intervention is limited to process rather than substitution of its own decision.

Contentions of Respondents

The Government argued that life imprisonment is of indefinite duration and remission does not create a right to premature release. It contended that though Section 433A contemplates consideration after 14 years, the Government retains discretion. Reports showed the convict’s health is stable; but the gravity of the crime and public interest weighed against release. The State Level Advisory Committee’s recommendation is only advisory; the Government must weigh all factors, including societal impact, discipline inside prison, and post-release rehabilitation prospects. The impugned order dated 09.03.2023 is argued to be in line with legal standards, and the decision-maker can differ from advisory bodies while providing reasons.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Laxman Naskar v. Union of India and OthersAIR 2000 SC 986PositiveCited to support the proposition that life imprisonment is lifelong and remission does not create a right to premature release.
Samsher Singh v. State of Punjab and Another(1974) 2 SCC 831PositiveCited to reinforce that the Governor must act on aid and advice of Ministers; Government is the decision-maker.
Maru Ram v. Union of India and Others(1981) 1 SCC 107PositiveCited to reinforce Governor’s duty to act on ministerial advice.
A.G Perarivalan v. State, through Superintendent of Police and Another(2022) SCC Online SC 635Mentioned OnlyCited to illustrate a different context where the Court directed release, not controlling the present case.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Shyamala M.K. v. State of Kerala and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 20[TH] DAY OF JULY 2023 / 29TH ASHADHA, 1945** **WP(C) NO. 15495 OF 2021** ## **PETITIONERS :** **1 SHYAMALA.M.K., AGED 69 YEARS, W/O.LATE P.K.SASI, MEVAKKADU HOUSE, MUZHOOR P.O., MANJAMATTOM, KOTTAYAM.** - **2 VINU S. @ VINOJ.S., S/O.LATE P.K.SASI, CONVICT NO.3860, CENTRAL PRISON, THIRUVANANTHAPURAM.** **BY ADVS. K.S.MADHUSOODANAN M.M.VINOD KUMAR P.K.RAKESH KUMAR K.S.MIZVER M.J.KIRANKUMAR** ## **RESPONDENTS :** **1 STATE OF KERALA, TO BE REPRESENTED BY SECRETARY, HOME DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN-695 001.** - **2 DIRECTOR GENRAL OF PRISON AND CORRECTIONAL SERVICES, HEAD OFFICE, JAIL DEPARTMENT, GOVERNMENT OF KERALA, POOJAPPURA, THIRUVANANTHAUPRAM, PIN-695 012.** - **3 SUPERINTENDENT, CENTRAL PRISON AND CORRECTIONAL HOME, POOJAPPURA, THIRUVANANTHAPURAM, PIN-695 012.** - *** ADDL.R4. IS IMPLEADED** **4. MEMBER SECRETARY, STATE LEVEL ADVISORY COMMITTEE(ADDITIONAL CHIEF SECRETARY), HOME AND VIGILANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 2 *** ADDL.R4 IS SUO MOTU IMPLEADED AS PER ORDER DATED 23-08-2022 IN WP(C).** **SRI.K.A.NOUSHAD, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION HAVING COME UP FOR ADMISSION ON 03.07.2023, ALONG WITH WP(Crl.).284/2023, THE COURT ON 20.07.2023 DELIVERED THE FOLLOWING:** W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 20[TH] DAY OF JULY 2023 / 29TH ASHADHA, 1945** **WP(CRL.) NO. 284 OF 2023** ## **PETITIONER :** **SHYAMALA.M.K., AGED 71 YEARS, W/O. LATE P.K. SASI, MEVAKKADU HOUSE, MUZHOOR P.O, MANJAMATTOM, KOTTAYAM, PIN – 686 502 BY ADVS.** **K.S.MADHUSOODANAN M.M.VINOD KUMAR P.K.RAKESH KUMAR K.S.MIZVER M.J.KIRANKUMAR** ## **RESPONDENTS :** **1 STATE OF KERALA, REPRESENTED BY SECRETARY, HOME DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN – 695001** - **2 DIRECTOR GENERAL OF PRISON AND CORRECTIONAL SERVICE HEAD OFFICE, JAIL DEPARTMENT, GOVERNMENT OF KERALA, POOJAPPURA, THIRUVANANTHAPURAM, PIN – 695 012** - **3 SUPERINTENDENT, CENTRAL PRISON AND CORRECTIONAL HOME, POOJAPPURA, THIRUVANANTHAPURAM, PIN – 695 012** - **4 STATE LEVEL ADVISORY COMMITTEE, REPRESENTED BY MEMBER SECRETARY, (ADDITIONAL CHIEF SECRETARY), HOME AND VIGILANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001** **BY SRI.NOUSHAD K.A., PUBLIC PROSECUTOR** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 03.07.2023, ALONG WITH WP(C).15495/2021, THE COURT ON 20.07.2023 DELIVERED THE FOLLOWING:** W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 4 ## **BECHU KURIAN THOMAS, J.** =-=-=-=-=-=-=-=-=-=-=-=-= ## **W.P.(C) No.15495 of 2021 &** **W.P.(Crl.) No.284 of 2023** =-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 20[th] day of July, 2023** ## **JUDGMENT** A life convict's request for commutation of sentence was declined. While the said convict was on parole, he, along with his mother, filed W.P.(C) No.15495 of 2021 seeking to quash the orders rejecting his request for commutation of his sentence and also for a declaration that he is entitled to have his sentence commuted under Article 161 of the Constitution of India or under Sections 432 and 433 of the Code of Criminal Procedure, 1973. During the pendency of the said writ petition, pursuant to a direction of this Court, another decision was taken by the Government, again rejecting his request for commutation. Thus, a second writ petition i.e. W.P.(Crl.) No.284 of 2023 was filed by the mother of the convict to quash the order rejecting the commutation of sentence and also for ancillary reliefs. Both those writ petitions are considered together. 2. The second petitioner in W.P.(C) No.15495 of 2021 is the convict. His is convict No.3860 of Central Prison, Thiruvananthapuram. He W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 **==> picture [7 x 9] intentionally omitted <==** was the 2[nd] accused in S.C.No.145 of 2005 on the files of the Sessions Court, Kottayam. By judgment dated 03.01.2006, two accused were convicted and sentenced to undergo life imprisonment for the offence under Section 302 of the Indian Penal Code, 1860 apart from other offences. Crl.A.193 of 2006 filed before this Court was also dismissed by judgment dated 10.12.2009. 3. Petitioners in W.P.(C) No.15495 of 2021 have pleaded that the convict has undergone 24 years of imprisonment already, including the period of remission and that the convict is suffering from cancer of his tongue (squamous cell carcinoma), and undergoing treatment at the Regional Cancer Centre, Thiruvananthapuram. Petitioners further pleaded that despite completing actual imprisonment of more than 16 years, the convict's application for premature release was not considered. It was also alleged that discriminatory treatment was being meted out to the convict since the information obtained under the Right to Information Act, 2005 revealed that eight life convicts who committed murder of women and children were prematurely released, including a person who was released after completing 11 years and six months. Petitioner also alleged that persons who had completed 14 to 17 years have also been released, despite them committing murder of women and children and also notwithstanding the adverse recommendation of the probation officers. Reference was also made to the case of one Mundi Gopalan, who, in spite of life sentences for two separate murders, was directed to be W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 6 released on completing an actual sentence of just 13 years and 10 months. 4. Though the Jail Advisory Board had rejected the request of the convict, as per Ext.P3 which was challenged in the writ petition, during the pendency of the case, the State Level Advisory Committee had, on 26.09.2022, recommended the premature release of the convict. After the recommendation, the matter was placed before the Government for a decision. On 22.10.2022, by an interim order, the learned Single Judge directed the Government to take a decision on the recommendation of the State Level Advisory Committee. On 06.01.2023, a memo was filed in the said writ petition along with a Government Order dated 24.12.2022 rejecting the petitioners' request for remission of sentence. After perusing the said order, the learned Single Judge noticed that, despite all the authorities recommending the convict’s release, the Government had, without considering any of those recommendations and without any application of mind issued the order rejecting the request for commutation. Therefore, the learned Single Judge directed the State Government to take a fresh decision within a period of one month by issuing a speaking order specifically adverting to the contents of the reports. 5. Pursuant to the above direction, the Government issued a fresh order on 09.03.2023, again rejecting the request of the convict for premature release. W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 7 6. W.P.(Crl.) No.284 of 2023 is filed challenging the order dated 09.03.2023 rejecting the request for premature release. The said writ petition has been filed, as mentioned earlier, by the mother of the convict, as by that time, the convict had completed his parole and went back to prison. 7. Since the main reliefs claimed in both these writ petitions are similar in nature, i.e. release of Convict No.3860 of Central Prison, Thiruvananthapuram, prematurely, they are considered and disposed of by this judgment. 8. A statement was filed by the 3[rd] respondent in W.P.(C) No.15495 of 2021, alleging that the sentence of imprisonment for life is of indefinite duration and the question of remission of lifetime sentence is exclusively within the province of the appropriate Government. Even though in accordance with Section 433A of the Cr.P.C., the cases of life convicts who have completed 14 years are considered for premature release from time to time, commutation of sentence cannot be claimed as a matter of right and it is immaterial whether the petitioner had spent 17 years or more under one conviction or the other. The convicts who are critically ill are considered for release as per Rule 457 of the Kerala Prisons and Correctional Services Management Rules, 2014, (for short, the Rules) as per which the Government may consider the release on the certificate of the jail medical officer that (i) convict is critically ill and that his condition W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 **==> picture [7 x 9] intentionally omitted <==** has not been caused or worsened by him on purpose, (ii) further incarceration would cause his early demise and, (iii) releasing the prisoner may increase the probability of his recovery from illness. It was averred that as per the medical report of convict No.3860, though he was suffering from cancer of the tongue, his condition was stable. Thus his medical condition did not fulfil the criteria for considering him for premature release. 9. The statement also mentioned that petitioner's son was involved in the sensational Praveen murder case (2005), and that he was sentenced to life imprisonment along with Sri. Shaji, the then Deputy Superintendent of Police. It was alleged that the accused were convicted of criminal conspiracy, murder by dismembering the body of the deceased and discarding it in three different areas of the backwaters of the Thanneermukkom, Kochi and Cheepumkal thereby causing the disappearance of the evidence. Petitioner is also alleged to have abducted the deceased Praveen and assisted the first accused, a law enforcement official to murder him and dispose of the body and therefore, the Prison Advisory Board did not recommend the convict for premature release. The appeal petition filed by the convict was placed before the State Level Advisory Board for premature release, who had recommended his release. 10. I have heard Sri.K.S.Madhusoodhanan, the learned counsel for the petitioners as well as Sri.K.A.Noushad, the learned Government Pleader and have considered the rival contentions. W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 9 11. In W.P.(C) No.15495 of 2021, petitioner challenges Ext.P3 which is an order of the Director General of Prisons and Correctional Services intimating the refusal of the Jail Advisory Committee to recommend the petitioner's son for premature release dated 07.04.2021. Subsequent to Ext.P3, the State Level Advisory Committee by decision dated 26.09.2022 recommended for the premature release of the petitioner. However, pursuant to the interim direction dated 20.10.2022, a decision was taken by the Government on 24.12.2022 by G.O.(M.S) No.267/2022/Home refusing to accept the recommendations of the State Level Advisory Committee and rejecting the request of the petitioner for premature release. By an interim order dated 06.01.2023, the Government was directed to reconsider the case of the petitioner for premature release and directed the issuance of a speaking order specifically adverting to the contents of the minutes of the State Level Advisory Committee as well as the other reports in favour of the petitioner. 12. Pursuant to the above interim order dated 06.01.2023, the Government passed fresh orders on 09.03.2023. The said order now governs the field and is challenged in W.P(Crl.) No.284 of 2023. Since the order dated 09.03.2023 is already subjected to a challenge, the earlier writ petition filed as W.P.(C) No.15495 of 2021 has practically W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 10 become infructuous and therefore the consideration need only be confined to W.P.(Crl.) No.284 of 2023. 13. The State Level Advisory Board was constituted to consider appeals against the recommendations of the Prison Advisory Boards. The Board consists of a retired Judge of this Court, the Additional Chief Secretary of the Home Department as its Member Secretary, the Law Secretary, Social Welfare Department Secretary and a known official person as members. The State Level Advisory Committee had on 26.09.2022 recommended the release of the petitioner. However, by the order dated 09.03.2023, impugned in W.P.(Crl.) No.284 of 2023 the Government rejected the recommendation. Paragraph 10 of the order impugned is relevant for the purpose of proper consideration and it is extracted as below : _10. Government have examined the matter in detail with respect to the aforesaid reports, medical condition and the recommendation of the State Level Advisory Committee. The decision made by the State Level Advisory Committee constituted as per rule 469(a) of the Kerala Prisons and Correctional Services (Management) (Amendment) Rules, 2021 is recommendatory in nature. Government is entrusted with the power of finding its eligibility after evaluating the circumstances in accordance with the adopted policy/ stand if any. The earlier stand taken by the State while filing appeal for enhancement of sentence is that Sri.Vinu and the other accused deserve capital punishment. The satisfactory conduct, possessed by the prisoner inside the prison, reported by the Superintendent cannot be relied upon entirely as it is difficult to assess the extent of reformation undergone by him because majority of the prisoners lead a disciplined life inside the prison. The_ W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 11 _District Probation officer reported his social and familial acceptance received by the prisoner while he was released on leave and the possible post release rehabilitation, which forms only a part of correctional and rehabilitation procedure. District Police Chief reported that there exists threat to his life and his release may cause law and order issues in the area. There is objection from the relatives of the victim as they are afraid of his release. The medical report dated 23.09.2022 concluded that his health condition is stable now and has been advised to follow up at RCC. He is being provided with ample medical treatment by the Prison Department and treatment can be continued in RCC. Government is of the view that the sentence undergone by Sri.Vinu is not sufficient to be considered for premature release as he had involved in one of the most cruel murders. The incident had rocked the whole State and that the act of the accused (Vinu and other) was abhorrent and gruesome. Sri.Vinu was hand in glove with the first accused to commit such a brutal murder. The deep impact of the brutal murder made in society still reverberates and granting him release will surely convey wrong message to the society. Further this is not a fit case to invoke the authority vested in the Government to exercise its powers of premature release of convicts in view of the reasons enumerated above. Such powers are to be exercised reasonably and rationally keeping in view of the mitigating circumstances and the factors like interest of the society and public interest. All the mitigating factors mentioned by various reporting agents in the present case are not adequate for granting premature release to Sri.Vinu and hence the proposal for premature release of C.No.3860 Sri.Vinu, Central Prison and Correctional Home, Thiruvananthapuram is hereby rejected._ 14. The settled position of law dealing with life sentences stipulates that such a sentence means nothing less than lifelong imprisonment. By earning remissions, a life convict does not acquire a right to be released W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 12 prematurely. Reference in this regard can be made to the decision in **Laxman Naskar v. Union of India and Others [AIR 2000 SC 986]** . in this context, it is apposite to mention that no parallel can be drawn with respect to the release of other convicts, as each case has to be considered independent and based upon the circumstances arising in the case. Merely because there were releases of convicts earlier, even in respect of similar crimes, that by itself will not confer any right to other convicts to be released prematurely. Various factors need to be appreciated to arrive at the conclusion as to whether a convict must be released or not. The decision in that regard rests purely within the realm of authority of the Government. 15. It is also relevant to bear in mind that the report of the Jail Advisory Committee and even that of the State Level Advisory Committee are only recommendations which can be borne in mind by the Government. Those recommendations are not required to be necessarily heeded by the Government. The decision-making authority continues to be the Government, despite the creation of the recommendatory bodies. The decision maker can arrive at a different conclusion from that of the recommendatory bodies. Merely because the State Level Advisory Committee recommended the release of a convict, the Government is not bound by such a recommendation. As the name itself suggest, it is only in the nature of a recommendation. Of course, sufficient weightage has to be given to the recommendation of the State Level Advisory Committee W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 13 and weighty reasons ought to be provided to take a different stance from that of the State Level Advisory Committee. 16. In the instant case, the Jail Advisory Committee did not recommend the release of the convict, but the State Level Advisory Committee recommended the release of the convict, noticing various aspects, including the convict’s illness. However, after referring to the background of the case, which included the dismemberment of the body of the deceased and destruction of the evidence by throwing the body parts into three different rivers, the accused were stated to have committed a heinous offence. Petitioner had conspired with the first accused to commit the crime, and no leniency was shown by the Court except to avoid death penalty. 17. While considering the scope of challenge against the order dated 09.03.2023, this Court reminds itself that the power of judicial review under Article 226 of the Constitution of India is limited. Merely because a different conclusion could be arrived at by the Court is not a ground to interfere with the impugned order under judicial review. The proposition that it is only the decision-making process that can be reviewed by the Court and not the decision itself looms large in the instant case. It is appropriate to reiterate that no convict has a right to claim premature release, and the decision rests squarely with the Government. W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 **==> picture [15 x 9] intentionally omitted <==** 18. In the impugned order, the Government came to the conclusion that the satisfactory conduct of a prisoner inside the prison, as recorded by the Superintendent, cannot by itself be a reason for assessing the extent of reformation of the convict since majority of the prisoners lead a disciplined life inside the prison. The medical report revealed that the health condition of the convict is stable and that ample medical treatment is provided by the prison department itself. Taking note of the cruel nature of the crime committed by the convict, the Government felt it to be not proper to prematurely release the convict as he had been involved in one of the most cruel murders which had rocked the whole State. The impact of the brutal murder still reverberates in society and releasing such an accused prematurely would send a wrong message to society is also cited as a reason for declining the request of the petitioner. Reckoning the mitigating circumstances for premature release, the Government felt that the interest of the society as well as that of the public, would be prejudiced by releasing the convict prematurely. 19. On a perusal of the impugned order, it is evident that every facet of the power of premature release of a convict was considered by the Government and a decision thereon was taken referring to the reports and also the circumstances in favour of the accused. Despite the recommendation of the State Level Advisory Committee, the Government felt it appropriate not to release the petitioner's son prematurely. The said W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 15 decision cannot be regarded as perverse or irregular or even improper, warranting an interference under Article 226 of the Constitution of India. 20. One of the contentions advanced by the learned Counsel for the petitioner was about the impropriety of the person who signed the Government Order. The impugned order was signed by Dr. V. Venu “By order of the Governor”. The said person was, by virtue of his office as Additional Chief Secretary, the Member-Secretary of the State Level Advisory Board that had unanimously recommended the release of the petitioner. Though the Additional Chief Secretary had, as a member of the Committee recommended the release of the convict, the subsequent order of the Government, rejecting the recommendation cannot become perverse or illegal merely because the very same officer had signed the Government Order, on behalf of the Governor. On both occasions, the officer had acted in different capacities. In the order recommending the release of the convict, he was expressing his personal views as a member of the Committee while in the impugned order, he had only expressed the views of the Government. By virtue of his Office, he may have to perform duties in dual capacities and one function cannot bind the other. 21. The impugned order is issued under Article 161 of the Constitution of India. As held in **Samsher Singh v. State of Punjab and Another [(1974) 2 SCC 831]** and in **Maru Ram v. Union of India and Others [(1981) 1 SCC 107]** while exercising the powers under Article 161 of the Constitution, the highest functionary of the State in the ## W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 **==> picture [15 x 9] intentionally omitted <==** constitutional scheme of our country should not act on his own judgement, but on the aid and advise of the Council of Ministers. The Governor was held to be the shorthand expression for the State Government. Thus, the impugned order is an order of the State Government and not that of the Governor or even that of the signatory to that order. ## 22. In the decision in **A.G Perarivalan v. State, through Superintendent of Police and Another [(2022) SCC Online SC** **635]** , the Supreme Court directed the release of a convict who was languishing in jail for 31 years. In the said case, despite the State Cabinet taking a decision to release the convict, the Governor refrained from issuing any order. Instead of taking a decision based on the recommendation of the State Cabinet, the Governor forwarded the recommendation to the President of India for a decision. In such a scenario, the Supreme Court directed the release of the convict. The said decision was rendered in a different context and cannot be relied upon to direct release of the convict in the present case. 23. In view of the above discussion, this Court is of the view that the impugned order dated 09.03.2023 was issued in accordance with law and the reasonings given in the impugned order are substantial and weighty, and there is no merit in the challenge against the order. Therefore, interference under Article 226 of the Constitution of India is only to be declined. W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 **==> picture [15 x 9] intentionally omitted <==** In the result, W.P.(C) No.15495 of 2021 is dismissed as infructuous, while W.P.(Crl.) No.284 of 2023 is dismissed on merits. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 18 ## **APPENDIX OF WP(C) 15495/2021** ## **PETITIONER'S EXHIBITS :** |**Exhibit P1**|**PHOTOCOPY OF THE MEDICAL CERTIFICATE DATED**| |---|---| ||**24.02.20 BEARING NO.CPS/HPL/283/20-21**| ||**ISSUED BY MEDICAL OFFICER, CENTRAL PRISON**| ||**& CORRECTIONAL HOME, THIRUVANANTHAPURAM.**| |**Exhibit P2**|**PHOTOCOPY OF THE LETTER BEARING**| ||**NO.B1/191/2020/HOME DATED 29.12.2020.**| |**Exhibit P3**|**PHOTOCOPY OF THE REPLY OF THE 2ND**| ||**RESPONDENT BEARING NO.WP1-13743/2020-PR.HQ**| ||**DATED 07.04.21.**| |**Exhibit P4**|**PHOTOCOPY OF THE MERCY PETITION SUBMITTED**| ||**BY 1ST PETITIONER UNDER ART 161 OF**| ||**CONSTITUTION OF INDIA TO HIS EXCELLENCY**| ||**GOVERNOR OF KERALA.**| |**Exhibit P5**|**PHOTOCOPY OF THE REPLY BEARING NO.CP-12-**| ||**1511/2021/CP TVM DATED 12.04.2021.**| |**Exhibit P6**|**PHOTOCOPY OF THE ORDER IN CRL.APPEAL**| ||**276/2010 DATED 11.10.2018 OF SUPREME COURT**| ||**OF INDIA.**| |**Exhibit P7**|**PHOTOCOPY OF THE REPLY GIVEN TO**| ||**ADV.D.B.BINU, UNDER RIGHT TO INFORMATION**| ||**ACT BEARING NO.C.V.V-R 15/13 DATED**| ||**26.02.2013.**| |**Exhibit P8**|**PHOTOCOPY OF THE REPLY UNDER RTI TO**| ||**ADV.D.B.BINU FROM CENTRAL PRISON,**| ||**THIRUVANANTHAPURAM.**| |**Exhibit P9**|**PHOTOCOPY OF THE APPLCIATION DATED**| ||**24.12.15 SUBMITTED BY P.K.AZEEZ TO THE**| ||**PUBLIC INFORMATION OFFICER OF CENTRAL**| ||**PRISON, POOJAPPURA.**| |**Exhibit P10**|**PHOTOCOPY OF THE REPLY FROM PUBLIC**| ||**INFORMATION OFFICER, CENTRAL PRISON,**| ||**THIRUVANANTHAPURAM.**| |**Exhibit P11**|**PHOTOCOPY OF THE INTERIM ORDER IN WPC**| ||**NO.32078/2010 DATED 22.03.2011 OF THE**| ||**HON'BLE HIGH COURT OF KERALA.**| W.P.(C) No.15495 of 2021 & W.P.(Crl.) No.284 of 2023 19 ## **APPENDIX OF WP(CRL.) 284/2023** ## **PETITIONER'S EXHIBITS :** **Exhibit P1 PHOTOCOPY OF THE ORDER BEARING G.O(P) NO. 17/2021/ HOME DATED 12-02-2021 OF THE 1ST RESPONDENT Exhibit P2 PHOTOCOPY OF THE ORDER BEARING G.O.(MS) NO. 267/2022 /HOME DATED 24-12-2022 OF THE 1ST RESPONDENT Exhibit P3 PHOTOCOPY OF THE ORDER IN W.P(C) NO. 15495 /2021 DATED 06-01-2023 OF THE HON`BLE HIGH COURT OF KERALA Exhibit P4 PHOTOCOPY OF THE G.O (MS) NO. 74/2023/HOME DATED 09-03-2023 OF THE 1ST RESPONDENT**