DURAIRAJ Vs. STATE

JUDGEMENT

(1.) THE Government of Tamil Nadu passed an order of premature release in respect of prisoners who are serving life sentence, in connection with the 100th Birthday Celebrations of the former Chief Minister of Tamil Nadu, Arignar Anna. THEse three writ petitions have been filed seeking writ of habeas corpus, praying to release the petitioners in the respective writ petitions in terms of the said Government Order, alleging violations of their fundamental right to life and liberty. H.C.P. Nos.1283 and 1303 of 2008 stand on the same footing and H.C.P. No.985 of 2008 stands on a different footing.

(2.) WE will take up H.C.P. No.985 of 2008 first. This petition was originally filed for consideration of the petitioner-s case by the State Advisory Board. That relief was granted pending the H.C.P. Thereafter, an additional affidavit has been filed alleging discrimination. The petitioners were tried for the offences under Section 302 read with 34 Sections 394 and 397 read with 34 of the Indian Penal Code. They were convicted and sentenced to undergo life imprisonment and rigorous imprisonment for seven years the sentences were ordered to run concurrently. The appeals were dismissed. The petitioners had undergone approximately 17 years in prison. In the additional affidavit filed, they have referred to one Haja Mohideen and one Karnan who have also been convicted under the same sections as the petitioners and had been released prematurely. The denial of the same relief is a gross violation of their fundamental rights.

(3.) THE learned senior counsel appearing on behalf of the petitioners submitted, in answer to the preliminary objection raised by the learned Additional Public Prosecutor regarding the maintainability of the petitions, that when the question relating to the fundamental rights of prisoners is raised, then notwithstanding the fact that they are in prison serving a sentence imposed in accordance with law, a habeas corpus petition is maintainable. He relied on several judgments to support his case. He also submitted that the State cannot discriminate between prisoners similarly placed and exercise the power of remission to some and deny it to others. As regards the petitioners in H.C.P. Nos.1283 and 1303 of 2008, he submitted that the Court had no power to trespass into what is exclusively the domain of the Executive for grant of remission, and by a judicial order, foreclose the right of the prisoner to be set free forever. THE Learned senior counsel submitted that in Antulay-s case, the Supreme Court had categorically stated that when the judicial order is without jurisdiction, then the petitioner has no other resort but to approach the Court for relief and for this purpose, he relied on several decisions.