ORDER

(Order of the Court was made by G.R.SWAMINATHAN, J.)

The writ petitioner is a life convict incarcerated in Central Prison, Madurai. He applied for premature release in terms of G.O (Ms) No. 488, Home (Prison – IV) Department dated 15.11.2021. His case was recommended by the State Level Committee as he had completed ten years of actual imprisonment as on 15.09.2021. However, rejection order was passed vide G.O (D) No.1249, Home (Prison – IV) Department dated 30.10.2023. Questioning the same, this writ petition has been filed.

2.The learned counsel for the petitioner submitted that the only issue raised in this writ petition is whether the Hon'ble Governor in exercise of his power of remission under Article 161 of the Constitution of India can act according to his discretion or whether he is bound by the recommendation made by the State Cabinet. He pointed out that this issue is no longer res integra and is covered by the decision of the Hon'ble Supreme Court reported in (2023) 8 SCC 257 ( A.G.Perarivalan v. State through Superintendent of Police, CBI/SIT/MMDA, Chennai) and the order dated 17.10.2024 made in WP No.14908 of 2024 (Veera Bharathi v. the State of Tamil Nadu and ors) passed by the Hon'ble Division Bench of Madras High Court. It has been held therein that the recommendation made by the council of ministers is binding on the Hon'ble Governor. Since the impugned rejection order runs counter to the ratio laid down in the aforesaid decisions, he called upon this Court to set aside the same.

3.The respondents have filed a detailed counter affidavit and the learned Additional Public Prosecutor took us through its contents. The stand of the respondents is that the facts that led to the conviction of the petitioner cannot be lost sight of.

4.We carefully considered the rival contentions and went through the materials on record. The case against the petitioner was that he trespassed into the house of one Ramasamy on 18.11.2010 at 07.45 P.M and inflicted multiple stab injuries on the wife of Ramasamy (Annalakshmi) ; he hit her with a grinder stone and killed her ; he then robbed the gold chain weighing six sovereigns worn by the deceased. In this regard, Crime No.453 of 2010 was registered on the file of the Thalavaipuram Police Station, Virudhunagar District for the offences under Sections 450, 302 and 392 of IPC. Charge sheet was laid and taken on file in P.R.C No.11 of 2011 on the file of the Judicial Magistrate, Rajapalayam. The petitioner was found guilty of the offences with which he was charged vide judgment dated 23.06.2014 in S.C.No.48 of 2011 on the file of the Principal District and Sessions Judge, Virudhunagar, Srivilliputhur and sentenced to undergo life imprisonment for the offence under Section 302 of IPC and 7 years rigorous imprisonment for the offence under Section 392 of IPC. Questioning the same, the petitioner filed Crl.A.(MD) No.21 of 2016 before this Court. The appeal was dismissed on 22.11.2016 and the Judgment of conviction and sentence passed by the trial Court was confirmed.

5.Though the petitioner was convicted for the offences under Sections 392 and 302 of IPC, actually he should have been charged and convicted rather for the offences under Sections 392 r/w.397 and 302 of IPC. Section 390 of IPC deals with robbery. Section 391 defines dacoity. Section 392 sets out the punishment for robbery while Section 395 sets out the punishment for dacoity. Section 397 dealing with robbery or dacoity would come into play if the offender uses any deadly weapon. In other words, use of deadly weapon would be an aggravating circumstance and bring the offence of robbery/dacoity simpliciter under Section 397 of IPC. In the case on hand, the petitioner had used knife and inflicted multiple stab injuries on the victim. He had also used the grinder stone to hit her head. It is thus obvious that the petitioner should have been charged not only under Section 392 of IPC but also under Section 397 of IPC along with Sectio