Bechu Kurian Thomas, J
1. Petitioner's husband, Sri. Rajan, Convict No.2761, is presently lodged at the Open Prison & Correctional Home at Nettukaltheri, Thiruvananthapuram. Petitioner has preferred this writ petition seeking to quash Ext.P4 order dated 11.01.2024, refusing to exercise the power of the Government to release the convict prematurely. The petitioner also seeks a direction to release her husband prematurely from imprisonment.
2. Petitioner's husband was convicted in S.C. No.117/1999 by the Additional Sessions Court, North Paravur and was sentenced to undergo life imprisonment under section 302 of the Indian Penal Code, 1860. His conviction was confirmed by this Court as per the judgment in Crl. Appeal No.51/2002 and the Special Leave Petition filed before the Supreme Court was also dismissed.
3. Petitioner's husband is alleged to have murdered a lady named Geetha, who was his relative and with whom he was having an illicit relationship. Petitioner's husband was found to have poured kerosene over the deceased and set her ablaze after locking the doors and windows of the house thereby committing the murder. According to the petitioner, despite the recommendation of the Jail Advisory Board for the premature release of her husband, the Government has refused to release him stating that a large number of criminal attacks against women nowadays show that the punitive measures imposed at present are not sufficient to deter and curb such offences.
4. In the counter affidavit filed on behalf of the second respondent it is stated that though petitioner's husband became eligible for consideration for premature release from 08.01.2016 onwards, after completion of 14 years of actual sentence, on seven occasions, his application was placed before the Jail Advisory Board. It was further stated that though on four occasions he was recommended, the Government rejected his request for premature release, despite the Probation Officer’s recommendation. According to the counter affidavit, petitioner's husband has completed more than 21 years of imprisonment and he is now over 62 years of age and releasing persons guilty of murdering women prematurely would be sending a wrong message to society and even may facilitate offences against women and also that the police report is adverse for releasing the convict.
5. I have heard Smt. Deepa K. Payyanur, the learned counsel for the petitioner, and Sri. P. Narayanan, the learned Public Prosecutor.
6. During the course of arguments, it was submitted by the respondents, that the petitioner has, as on 10.06.2024 undergone 22 years 3 months and 19 days of imprisonment and has also earned a remission of 6 years, 3 months and 22 days. Apart from the above, it was informed that petitioner's husband had availed 1653 days of parole that too on 60 occasions including special leave and that he is being regularly granted ordinary leave.
7. In the decision in Joseph v. State of Kerala [2023 SCC OnLine SC 1211], on which heavy reliance was placed by the learned counsel for the petitioner, it was observed that guidelines which do not have any statutory flavour are merely advisory in nature and they cannot have the force of a statute as they are subservient to the legislative act and the statutory rules. It was further observed that the practical impact of a guideline which bars consideration of a premature release request by a convict who has served over 20 or 25 years, based entirely on the nature of crime committed in the distant past, would be to crush the life force out of such individual, altogether.
8. However in a recent decision in Bilkis Yakub Rasool v. Union of India and Others (2024) 5 SCC 481, the Supreme Court had, after considering various decisions on premature release held that a convict undergoing life imprisonment is expected to remain in custody till the end of his life subject to any remission granted by the appropriate Government under section 432 Cr.P.C, which in turn is subject to the procedural checks in that section and the substantive check in section 433 Cr.P.C. Pursuant to the judgment in Sangeet and Another v. State of Haryana (2013) 2 SCC 452, the Central Government had requested the State Governments to scrupulously comply with the directions of the Supreme Court.
9. In this context it must be observed that the power of premature release or pardoning is an act of grace and has to be exercised considering various factors including the age of the accused at the time of commission of the offence, the period of imprisonment already undergone, nature of reformation that has come up on the convict etc. A blanket stance that all persons who have murdered a woman or a child shall not be prematurely released, dehors any other circumstances is not conducive to a welfare State and such a stand will be contrary to the principles that govern the commutation of imprisonment. Commutation is based on the principles of reformation of the individual intended to bring the convict back to society as a useful member.
10. Though the learned counsel vehemently contended that compassion and sympathy must be shown, the Supreme Court had, in the decision in Bilkis Yakub Rasool's case (supra), observed that the manner of functioning of the court has to be in accordance with the rule of law and courts should be dispassionate, objective and analytical. It has also been observed that the rule of law does not mean protection to a fortunate few and the very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples of killing others if it suits their ends.
11. Considering the aforesaid principles, this Court notices that the petitioner has, in the last 22 years of his imprisonment, been on leave for more than 1653 days, which equals to about 5½ years. The power to grant remission is ultimately an exercise of discretion by the Government. The question in a judicial review is whether the Government had considered and exercised the discretion in accordance with the law or whether there was any abuse in such exercise or whether the decision is a malafide act based on irrelevant considerations.
12. As noticed from the impugned order, the Government had considered various aspects of the case and refused to exercise its jurisdiction. No one has a right to demand that he should be released prematurely from imprisonment as that would be the antithesis of the rule of law. While considering the claim for remission or premature release, courts cannot ignore the victim who has also suffered immeasurably. In view of the above, this Court is of the opinion that the impugned order does not warrant any interference.
Accordingly, this writ petition is dismissed.
