The advice of the State Cabinet is binding on the Governor regarding premature release under Article 161, and such decisions are subject to judicial review.

ORDER :

[Order of the Court is made by S.M.SUBRAMANIAM, J.]

Under assail is the order of rejection seeking premature release of the convict prisoner in G.O.(D).No.1225, Home (Prison-IVA) Department dated 25.10.2023.

2. The petitioner / convict prisoner was convicted under Sections 364 and 302 of Indian Penal Code (IPC) for life imprisonment and also convicted under Section 302 read with 201 of IPC for a period of seven years imprisonment. The petitioner is in actual imprisonment for about 14 years. The application seeking premature release was submitted under the scheme approved by the Government in G.O.Ms.No.488, Home (Prison-IV) Department dated 15.11.2021. Under the scheme for premature release in G.O.Ms.No.488 dated 15.11.2021, completion of ten years imprisonment is fixed as criteria. The application submitted was placed before the State Committee for scrutinisation. The State Committee recommended the case of the petitioner for premature release. The State Cabinet approved the recommendation of the State Committee, but the Hon'ble Governor disagreed with the decision of the State Cabinet approving the recommendations made by the State Committee. Thus, the impugned order came to be passed and the present writ petition filed.

3. The Additional Public Prosecutor appearing on behalf of the respondents produced the original files relating to the application filed by the prisoner seeking premature release. The file reveals that the State Level Committee recommended the case of the prisoner for premature release. The recommendation was approved by the Additional Chief Secretary, Home Department and Secretary Legal Affairs and the Chief Secretary to Government of Tamil Nadu. It was placed before the State Cabinet and the recommendation was approved and accordingly, the Hon'ble Minister for Law and the Hon'ble Chief Minister approved the recommendation.

However, the Hon'ble Governor dissented, citing that the convict prisoner abducted and murdered a minor boy for ransom. The Governor noted that the prisoner had not completed 14 years of imprisonment, making premature release prejudicial to justice.

4. Question arises, whether such general opinion formed by the Hon'ble Governor would be binding on the decision of the State Cabinet, which is otherwise taken pursuant to the recommendations made by the State Committee under the scheme of remission which is statutory in nature?

5. The reasons stated by the Hon'ble Governor that it is premature, would not arise, since the scheme itself prescribed eligibility and the petitioner is otherwise eligible under the scheme for submission of application seeking premature release. While so, the opinion that the application or premature release is premature, is not in consonance with the terms and eligibility criteria stipulated under the scheme. That apart, the decision of the State Cabinet is binding on the Hon'ble Governor.

6. In this backdrop, we would like to consider the implications of the dissenting opinion of the Hon'ble Governor counter to the decision taken by State Committee as approved by the State Cabinet. The Law regarding the powers of the Hon'ble Governor with reference to the decision taken by the State Cabinet in the matter of premature release/remission has been settled by the Three Judges Bench of the Hon'ble Supreme Court of India in the case of A.G.Perarivalan vs. State through Superintendent of Police, CBI/SIT/ MMDA, Chennai, (2023) 8 SCC 257. The relevant paragraphs are extracted hereunder;

“18. The power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of an offence against any law related to which the executive power of the State extends is vested in the Governor under Article 161 of the Constitution. Article 162 makes it clear that the executive power of the State shall extend to matters with respect to which the legislature of the State has power to make laws. Article 163 of the Constitution