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The detenu has a right to challenge a reasoned order but would not be a writ of habeas corpus but wo

The Home Secretary (Prison) and Ors. Vs. H. Nilofer Nisha, Criminal Appeal No(s). 144 of 2020, @ Special Leave Petition (Crl) Nos. 626 of 2020, @ Special Leave petition (Crl) D. No. 18046 of 2019 – January 23, 2020

The Supreme Court Bench comprising of Justice Abdul Nazeer and Justice Deepak Gupta disposed of the appeal.

Issue: Whether writ of habeas corpus would lie, for securing release of a person who is undergoing a sentence of imprisonment imposed by court of competent jurisdiction praying that he be released in terms of some Government orders/ Rules providing for pre-mature release of prisoners?

The Governor of Tamil Nadu has powers under Article 161 of the Constitution of India through the Home (Prison) Department to release some of the pre mature accused on commemoration of MGR’s birth centenary. A State level committee, a district level committee headed by the Superintendent of Prisons and other officials and Range Deputy Inspector General of Prisons. Under the scheme, the district committee will make a list of prisoners who were life convicts and have completed 10 years in prisons, who are aged 60 years and above and have completed 5 years of actual imprisonment and those who were originally sentenced to death but are modified to life sentence by the Appellate Court may be considered for pre-mature releases.

In the present case, the petitioners have referred for the premature release but the state has not given any benefit. The High Court found that there is life threat for the convicts but this cannot be a ground for detaining them in the prison. The High Court directed the detenu be informed about the threat and allowed the petitions. These orders are under challenge.

The State contended that the High Court has transgressed the jurisdiction under art.226 of the Constitution. It is further submitted that the High court should have directed the detenus for consideration in the Supreme Court and should not have itself directed release of the detenus.

The counsel for the petitioners argued that there have been many orders passed in the same nature by the Madras High Court. It is also urged that the petitioners have been in prison for a very long time and should be released in terms of remission.

A writ of habeas corpus can be issued when the detention or confinement of a person is without the authority of law. One must be deprived of the right of liberty only in accordance with the procedure established by law. The court is also responsible to ensure that such a person though under incarceration is not denied of the fundamental rights which he is entitled to.The Court stated that  once a reasoned order   is   passed   then   obviously the detenu  has a right  to challenge that order but that again would not be a writ of habeas corpus but would be more in the nature of a writ of certiorari.

In the present case, the Court points out that the grant of remission is not a right vested with the petitioner but is a privilege available to the prisoner on fulfilling certain conditions. There are various appeals made by various persons in the case. One of it being the prisoner has studied many degrees and as he has committed murder of a person in another community, his release may be a threat to his life. But the court ordered for the release of the respondent. Another prisoner has also completed many courses in the jail and his jail performance is satisfactory and has been in jail for more than the incarceration period, he has been to his place and has no life threats, therefore can be released from the jail. Similarly, the other prisoners, whose performance is satisfactory and do not have any danger for life are directed to be released from the jail under article 142 of the Constitution.

The Court held that the prisoners should be released and should be allowed to live their life without any interruptions and they also should be informed about the threats they have. Therefore, the appeals are disposed of in the aforesaid terms.

–  Vydurya Selvi Baskaran



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