Sriranga Thevar vs The State of Tamilnadu

Honourable Mr. Justice M.M. Sundresh

The petitioner is a life convict. An order of conviction was recorded against the petitioner for the offences u/s 302 r/w 34 and 341 IPC in S.C.

No. 42 of 1996 by the learned Additional Sessions Judge cum Chief Judicial Magistrate, Thoothukudi on 30.11.2001. Pursuant to the life

imprisonment imposed on him, the petitioner was confined to the Central Prison, Palayamkottai on 30.11.2001. The appeal filed by the petitioner

along with his son was also dismissed on Crl. A. No. 66 of 2002. Thereafter, the petitioner filed an application in Crl. O.P. (MD) No. 8015 of

2008 before the Madurai Bench of Madras High Court and this Court by order dated 02.09.2008 was pleased to allow the application with a

direction to the jurisdictional Court to set off the period of detention undergone by the petitioner with the life imprisonment imposed u/s 433A of

Cr. P.C. In pursuant to the said direction, the Chief Judicial Magistrate, Thoothukudi, in an by the order dated 06.09.2008 allowed the period of

remand during trial to be set off against the sentence imposed.

The first respondent by the Government Order passed in G.O. Ms. No. 1155 Home (PRI. IV) Department dated 11.09.2008, released life

convicts who have completed seven years of life imprisonment as on 15.09.2008. Accordingly, about 1405 life imprisonment were found eligible

for release. The eligible persons were released subject to the undertaking given by the first respondent in a writ petition filed challenging the

Government Order which paved way for the release. The undertaking given by the first respondent is to the effect that in the event of writ petition

having been allowed, the life convicts who are released pursuant to the Government Order passed in G.O. Ms. No. 1155 dated 11.09.2008

would be taken into custody and thereafter placed under detention as per the sentence imposed on them. The petitioner was not included in the

said Government Order as he was not found to be eligible at the time of sending the list by the Respondent No. 2 to the Respondent No. 1.

Even though the date of preparation of list is not available before this Court, it can be inferred that on the date of preparation of the list by the

second respondent, the petitioner did not get the benefit of the order passed u/s 433A of Cr. P.C. That is the reason why the petitioner''s name

was not found in the list of eligible life convicts who were made entitled for the release. However, a perusal of the order impugned and the counter

affidavit would show that the petitioner became eligible on 06.09.2008 and his case was also recommended thereafter, as he had completed seven

years of imprisonment as on 15.09.2008 which is the cut off date in the Government Order in G.O. Ms. 1155 dated 11.09.2008. The first

respondent has rejected the case of the petitioner on two grounds. The first ground is that the petitioner did not obtain orders and made himself

available for remission at the time of preparation of list by the second respondent. The second ground is that a writ petition has been filed

challenging the order of release. It has been further stated that in the subsequent years, no such decision has been made. Accordingly, the

petitioner''s request was rejected.

Admittedly, the petitioner has completed seven years of imprisonment as on 15.09.2008. He has completed seven years at the time of passing

of the Government Order in G.O. Ms. No. 1155 dated 11.09.2008. That is the reason why the recommendation has been made to consider the

case of the petitioner. Now, the petitioner has completed nearly eleven years in imprisonment. He is 60 years old. This Court is of the view that the

objections raised in the order impugned are technical in nature. The question for consideration is as to whether as on 15.09.2008, the petitioner

has completed seven years of imprisonment or not. When an order is passed by this Court in Crl. O.P. (MD) No. 8015 of 2008 dated

02.09.2008 and the same has been given effect on 06.09.2009 by the learned Chief Judicial Magistrate, Thoothukudi and in pursuant to the same,

recommendation has also made, the first respondent cannot deny the benefit to the petitioner. Further, the order dated 11.09.2008 passed in G.O.

Ms. No. 1155 dated 11.09.2008 was given effect to the other life convicts based upon the undertakings given by the respondents before this

Court. Therefore, until and unless the said order is set aside, the petitioner cannot be denied the relief as given to similarly placed persons.

It is no doubt true that if the writ petition is allowed and the Government Order passed in G.O. Ms. No. 1155 dated 11.09.2008 is set aside,

the benefits given to the petitioner would automatically vanish and he will have to once again spend his time in prison. But till such time, the

petitioner cannot be denied the benefit of the Government Order passed in G.O. Ms. No. 1155 dated 11.09.2008. It is not as if the petitioner is

seeking relief on the ground that he became eligible subsequently but his specific case is that inasmuch as he has completed seven years as on

15.09.2008 and even at the time of passing the Government Order in G.O. Ms. No. 1155 dated 11.09.2008, he is entitled to be released, of

course subject tot he final orders to be passed by this Court in the writ petition challenging the said Government order dated 11.09.2008.

The learned counsel appearing for the petitioner would submit that the petitioner would surrender before the second respondent in the event of

the writ petition challenging G.O. Ms. 1155 dated 11.09.2008 is allowed.

Taking into consideration of the above said facts and in the light of the discussion made above, this Court is of the view that the order impugned

passed by the 1st respondent in G.O. (Ms.) No. 684 dated 19.08.2009 is liable to be set aside. Accordingly, the same is set aside and

consequently, a direction is issued to the third respondent to extend the benefits of G.O. Ms. 1155 dated 11.09.2008 and release the petitioner

within a period of eight (8) weeks from the date of receipt of a copy of this order. It is made clear that the order passed by this Court is subject to

the orders to be passed in the writ petition filed challenging the Government Order passed in G.O. Ms. No. 1155 dated 11.09.2008 and any

decision made is binding on the writ petition. It is also made clear that if at the time of release of the petitioner, the writ petition challenging the

Government Order is already allowed, then the writ petitioner shall not be released. The writ petition is allowed setting aside the impugned order

passed by the 1st respondent in G.O. (Ms.) No. 684 dated 19.08.2009. No costs.