The Governor's dissent on premature release is not binding on the State Cabinet's recommendation, which must adhere to statutory eligibility criteria.

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, call for the records of G.O.(D).No.305 dated 11.03.2024 of the 1st respondent and quash the same and consequently direct the respondent no.1 premature release of the petitioner.)

Under assail is the order of the Government issued in G.O.(D).No.305, Home (Prison-IV) Department dated 11.03.2024.

2. The prisoner was convicted by the Additional Sessions and Fast Track Court, Trichy on 15.03.2012 for offence under Section 302 of Indian Penal Code (IPC) for which he was sentenced to life. Further convicted for offence under Section 392 IPC read with 397 IPC for which sentenced to seven years rigorous imprisonment. Both the sentences were directed to run concurrently and the prisoner had completed seven years of sentence for the offence under Section 392 IPC read with 397 IPC. The judgment of the Trial Court was confirmed by the High Court in Crl.A.(MD).No.565 of 2019 on 25.08.2022.

3. The prisoner submitted an application seeking premature release by virtue of the scheme implemented in G.O.Ms.No.430, Home (Prison-IV) Department dated 11.08.2023. The said application was scrutinised and processed by the Government. Thereafter, the Government passed a rejection order in G.O.(D).No.305, Home (Prison-IV) Department dated 11.03.2024 and hence the present writ petition came to be instituted.

4. It is not in dispute between the parties that the application for premature release was scrutinised by the Government and duly recommended by the State Committee. The recommendation of the State Committee was approved by the Principal Secretary, Home Department, Secretary (Legal Affairs) and Chief Secretary to the Government of Tamil Nadu. Thereafter, it was circulated to State Cabinet decision and the State Cabinet approved the recommendations of the State Committee and consequently the Hon'ble Minister for Law and the Hon'ble Chief Minister approved the recommendations. Finally, the file was circulated to the Hon'ble Governor. The Hon'ble Governor has disagreed with the decision of the State Cabinet and opined that “It is a heinous crime. Remission would be premature and prejudicial to the justice”. Pursuant to the dissent note made by the Hon'ble Governor the impugned Government order has been issued.

5. 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?

6. 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.

7. 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