The advice of the State Cabinet is binding on the Governor regarding premature release under Article 161, and judicial review is permissible if the Governor's decision lacks application of mind.

ORDER :

(S.M. Subramaniam, J.)

(Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, calling for the records in the order bearing No. in with order in G.O.(D).No.907 Home (Prison-IVA) Department dated 18.07.2024 passed by respondent No.1, and quash the same and directing the respondents to release the petitioner's father namely Sekar @ Gunasekar, son of Chachithananadam aged 59 years, life convict, Convict No.21210, now confined in the Central Prison, Vellore, immediately under G.O.Ms.No.488, Home (Prison-IV) Department dated 15.11.2021.)

Under assail is the order of the Government issued in G.O.(D).No.907, Home (Prison-IV) Department dated 18.07.2024.

2. The prisoner was convicted by the Trial Court under Section 302 Indian Penal Code (IPC) and sentenced to undergo imprisonment for life. The conviction and sentence was confirmed in C.A.No.145 of 2005 dated 07.07.2009. The Special Leave Petition (SLP) filed before the Hon'ble Supreme Court of India was also dismissed in S.L.P.(Crl).No.7794 of 2009 dated 16.11.2009. The prisoner completed 14 years of his life imprisonment. An application was submitted seeking premature release which was recommended by the Government under the scheme implemented in G.O.Ms.No.488, Home (Prison-IV) Department dated 15.11.2021. The said application was scrutinised and processed by the Government. Thereafter, the Government passed a rejection order in G.O.(D).No.907, Home (Prison-IVA) Department dated 18.07.2024 and hence, the present writ petition came to be instituted.

3. It is not in dispute between the parties that the recommendation of the State Committee was approved by the Home Department, Law Secretary and the Chief Secretary. The file was circulated to State Cabinet's decision and the State Cabinet approved the recommendation. The original files produced before this Court would reveal that the Hon'ble Minister for Law and the Hon'ble Chief Minister have approved the decision of the State Committee. Finally it was circulated for the approval of the Hon'ble Governor. The Hon'ble Governor made a dissenting note by stating that this is a case of brutal murder, where the husband poured kerosene and set his wife on fire for failing to provide jewellery. The heinous nature of the offence committed is taken as a reason for rejecting the recommendation made by the State Cabinet.

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 t