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 :

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, to call for the records pertaining to the impugned order G.O.(D).No.559/2024, dated 08.05.2024, issued by the 1st respondent and to quash the same and consecutively direct the 1st respondent to release the detenu, John David, S/o. David Marimuthu, Life Convict No.4897, aged about 46 years, now confined at Central Prison, Puzhal - 1, prematurely as per the G.O.(Ms).No.430/2023 dated 11.08.2023.

Under assail is the order of the Government issued in G.O.(D).No.559 of 2024, Home (Prison - IV) Department dated 08.05.2024.

2. The petitioner is the mother of the detenu viz., John David, son of David Marimuthu, Life Convict Prisoner No.4897, confined at Central Prison - I, Puzhal.

3. The prisoner was convicted in S.C.No.63 of 1997 dated 11.03.1998 and sentenced to undergo Life Imprisonment under Section 302 of Indian Penal Code, Life Imprisonment under Section 364 of Indian Penal Code, Rigorous Imprisonment for 1 year under Section 342 of Indian Penal Code and Rigorous Imprisonment for 7 years and a fine of Rs.1,00,000/- in default Rigorous Imprisonment for 21 months under Section 201 of Indian Penal Code.

4. The petitioner submitted an application seeking premature release of the prisoner under the Scheme issued by the Government in G.O.(Ms).No.430, Home (Prison - IV) Department dated 11.08.2023.

5. It is not in dispute that the State Committee recommended the case of the prisoner for grant of premature release, since the prisoner has undergone actual imprisonment for a period of more than 16 years.

6. The recommendations of the State Committee was approved by the Chief Secretary to Government, Secretary, Legal Affairs and the Chief Secretary to Government of Tamil Nadu. Thereafter, it was circulated for approval of the State Cabinet and it was approved and signed by the Hon'ble Minister for Law and the Hon'ble Chief Minister. Finally, file was circulated to the Hon'ble Governor, who in turn disagreed the recommendations of the State Committee as approved by the State Cabinet and made a finding that it is a brutal murder of a medical student in the most heinous manner. Therefore, the convict prisoner is not entitled for premature release.

7. In view of the descending note made by the Hon'ble Governor, the Government issued the impugned order.

8. We have perused the original files produced by the respondents. File reveals that the State Cabinet approved the recommendations of the State Committee, which was duly signed by the Hon'ble Minister for Law and the Hon'ble Chief Minister.

9. In this backdrop, we would like to consider the implications of the descending 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 in the case of A.G.Perarivalan /vs/ State through Superintendent of Police, CBI/SIT/MMDA, Chennai reported in (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 provides that there shall be a Council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercis