# INDU BAI & ORS v. STATE OF TELANGANA & ORS

- **Citation:** [2020] 1 S.C.R. 453
- **Court:** Supreme Court of India
- **Decided:** 2020-01-21
- **Case number:** Civil Appeal No. 483 of 2020
- **Bench:** L. Nageswara Rao, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indu-bai-ors-v-state-of-telangana-ors-34223
- **Pages:** 31

## Headnote

Tenancy:
Allotment of land in question - To persons displaced after
partition of India-Pakistan - Challenged by State Government -
Also challenged by appellants claiming to be pre-partition tenants
- High Court upheld the challenge by the State Appeal to Supreme
Court - Held: The challenge in the writ petition of the appellants
before High Court was not to seek establishment of any right of the
appellant being pre-partition tenants - Therefore, the matter is
remitted to High Court to decide the writ petitions in accordance
with law.

## Text

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INDU BAI & ORS.
v.
STATE OF TELANGANA & ORS.
(Civil Appeal No. 483 of 2020)
JANUARY 21, 2020
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Tenancy:
Allotment of land in question - To persons displaced after
partition of India-Pakistan - Challenged by State Government -
Also challenged by appellants claiming to be pre-partition tenants
- High Court upheld the challenge by the State Appeal to Supreme
Court - Held: The challenge in the writ petition of the appellants
before High Court was not to seek establishment of any right of the
appellant being pre-partition tenants - Therefore, the matter is
remitted to High Court to decide the writ petitions in accordance
with law.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 483 of
2010.
From the Judgment and Order dated 12.02.2016 of the High Court
of Judicature at Hyderabad for the State of Telangana and the State of
Andhra Pradesh in Writ Petition No. 14066 of 2006.
With
Civil Appeal Nos. 477-478, 486-487, 492-493, 568, 569-570,
571-572, 573, 479-480, 481 of 2020.
Guru Krishna Kumar, Pallav Sishodia, Ranjit Kumar, C.S.
Vaidyanathan, V. Giri, Sr. Advs., Mullapudi Rambabu, N. Eswara Rao,
Ms. Prity Kumari, Ms. Vijayshree Pattanaik, B.K. Prasad, M/S. M.
Rambabu And Co., Saurabh Mishra, Abhishek Singh, Ms. Samridhi Pal,
Ms. Aashna Bhatia, Srinivasa Rao Putluri, Varun Thakur, Tripurari Roy,
Ms. Shraddha Saran, Varinder Kumar Sharma, Hitendra Nath Rath, Dr.
E. Seshagiri Rao, G.V.R. Choudary, K. Shivraj Choudhuri, Harsh Singhal,
Hitesh Kumar Sharma, A. Sudhakar Rao, Kakra Venkata Rao, Tanmaya
Agarwal, T. V. Ratnam, P. Venkat Reddy, Prashant Kr. Tyagi, P. Srinivas
 [2020] 1 S.C.R. 453
453
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SUPREME COURT REPORTS
[2020] 1 S.C.R.
Reddy, Raja Ram, M/s. Venkat Palwai Law Associates, Prashant Singh,
A.K. Kaul, Raj Bahadur Yadav, Venkateshwar Rao Anumolu, Advs. for
the appearing parties.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The present appeals are directed against a common order passed
by the High Court of Judicature for the States of Telangana and Andhra
Pradesh at Hyderabad on 12th February, 2016 whereby the writ petitions
filed by the State of Telangana were allowed.
2. Civil Appeal No. 7477 of 2019 (Ramesh Parsram Malani &
Ors. v. The State of Telangana & Ors.) arising out of the said order
stands dismissed by this Court on 22nd October, 2019 wherein it has been
held that the Central Government has transferred land to the State
Government and that the State can allot land for settlement of displaced
persons.
3. The appellants claim themselves to be pre-partition tenants on
the land situated in Village Poppalguda, District Ranga Reddy. The
grievance of the appellants is that their right to continue in possession
has been put in jeopardy when the State issued an auction notice on 25th
April, 2016.
4. This Court in its judgment dated 22nd October, 2019 has not
examined the claim of the alleged pre-partition tenants. This Court in
Ramesh Parsram Malani's case set aside the finding of the High Court
wherein it was held that transfer of land to the State Government takes
such transferred land out of compensation pool. The observations of this
Court in the following para are in the context of the finding recorded by
the High Court, which reads as under:
"31. However, we are unable to agree with the High Court that
transfer of land to the State Government takes such transferred
land out of compensation pool. The land transferred to the State
Government continues to be part of compensation pool but it is
required to be disposed of by the Officers of the State who have
been conferred the powers of the Managing Officer or of the
Settlement Commissioner for the settlement of the displaced
persons alone. It is only after the displaced persons are settled,
the State Government may utilize the land for other purposes."
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5. In Civil Appeals arising out of Special Leave Petition (Civil)
Nos. 23613-23614 of 2016, the order of the High Court in Writ Petition
Nos. 29274 of 2014 and 29436 of 2014 is subject matter of challenge.
Before the High Court, the appellants have challenged the allotment of
land to Ramesh Parsram Malani (the appellant in Civil Appeal No. 7477
of 2019) and also claimed Patta being pre-partition tenants. The
appellants have claimed, inter alia, the following relief:
"...direct the respondents No. 1 to 5 to grant patta rights in respect
of the subject lands admeasuring Ac.18.00 Gts in Sy. No. 301,
303, 327, situated at Poppalguda Village, Rajendra Nagar Mandal,
Ranga Reddy District, in favour of the petitioners herein."
6. In Civil Appeals arising out of Special Leave Petitions (CC
Nos. 15550-15551 of 2016), the appellants have filed miscellaneous
application for claiming interim directions not to interfere with the
possession and enjoyment of the appellants over the land comprising in
Survey No. 331 of Poppalguda Village, Rajendra Nagar Mandal, Ranga
Reddy District. Therefore, the challenge in the writ petitions was not to
seek establishment of any right of the appellants being pre-partition
tenants.
7.In other appeals, the appellants have not invoked the writ
jurisdiction or any other competent forum for redressal of their grievances
in relation to vesting of land in them.
8. In view of the above, the order dated 12th February, 2016 passed
by the High Court in Writ Petition Nos. 29274 of 2014 and 29436 of
2014 is set aside and the matter is remitted to the High Court to decide
the writ petitions in accordance with law. All other appellants are at
liberty to invoke such other jurisdiction as may be available to them for
redressal of their grievances in accordance with law.
9. All the appeals stand disposed of accordingly.
Kalpana K. Tripathy
Appeals disposed of.
INDU BAI & ORS. v. STATE OF TELANGANA & ORS.
[HEMANT GUPTA, J.]
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THE HOME SECRETARY (PRISON) & ORS.
v.
H. NILOFER NISHA
(Criminal Appeal No. 144 of 2020)
JANUARY 23, 2020
[S. ABDUL NAZEER AND DEEPAK GUPTA, JJ]
Writs:
Writ of Habeas Corpus - Whether maintainable - For
premature release of person, in terms of a scheme for premature
release by a Government orders/ Rules, who is undergoing sentence
of imprisonment imposed by a Court of competent jurisdiction -
Held: Writ of Habeas Corpus is a processual writ to secure liberty of
the citizen from unlawful and unjustified detention by the State or
by a private person - Such writ will not lie where detention is in
accordance with the decision of a court of law or by an authority in
accordance with law - In the present case, the detenus having been
imprisoned for life, their detention cannot be said to be illegal -
The court cannot exercise power to grant remission or parole which
is descretion exercised by the authorities concerned - Rules framed
by High court cannot confer jurisdiction which is not conferred by
the Constitution - Rules cannot override the Constitution - It was
not correct for the High Court to direct release of the petitioners
under the Government order without first directing the competent
authority to take decision in the matter - In respect of 2 detenus
State/ Competent Authority is directed to consider their representation
- Other detenus in the facts of their respective cases, are directed
to be released forthwith, in exercise of power under Article 142 of
the Constitution.
Disposing of the appeals, the Court
HELD : 1.1 A writ of habeas corpus is available as a remedy
in all cases where a person is deprived of his/her personal liberty.
It is processual writ to secure liberty of the citizen from unlawful
or unjustified detention whether a person is detained by the State
or is in private detention. A writ of habeas corpus will not lie
where detention or imprisonment of the person whose release is
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sought is in accordance with the decision rendered by a court
of law or by an authority in accordance with law. [Para 14]
[468-A-C]
1.2 A writ of habeas corpus can only be issued when the
detention or confinement of a person is without the authority of
law. Though the literal meaning of the Latin phrase habeas corpus
is 'to produce the body', over a period of time production of the
body is more often than not insisted upon but legally it is to be
decided whether the body is under illegal detention or not.
Habeas corpus is often used as a remedy in cases of preventive
detention because in such cases the validity of the order detaining
the detenu is not subject to challenge in any other court and it is
only writ jurisdiction which is available to the aggrieved party.
The scope of the petition of habeas corpus has over a period of
time been expanded and this writ is commonly used when a
spouse claims that his/her spouse has been illegally detained by
the parents. This writ is many times used even in cases of custody
of children. Even though, the scope may have expanded, there
are certain limitations to this writ and the most basic of such
limitation is that the Court, before issuing any writ of habeas corpus
must come to the conclusion that the detenu is under detention
without any authority of law. [Para 17] [468-E-G; 469-A]
1.3 In the present cases, the detenus have been sentenced
to imprisonment for life and as such their detention cannot be
said to be illegal. It is not for the writ court to decide whether a
prisoner is entitled to parole or remission and these matters lie
squarely in the domain of the Govenment. [Para 18] [469-B]
Maru Ram v. Union of India (1981) 1 SCC 107 : [1981]
1 SCR 1196 - followed.
Col. Dr. B. Ramachandra Rao v. The State of Orissa &
Ors. (1972) 3 SCC 256 ; Kanu Sanyal v. District
Magistrate, Darjeeling (1973) 2 SCC 674 : [1974] 1
SCR 621 ; Manubhai Ratilal Patel v. State of Gujarat
and Others (2013) 1 SCC 314 : [2012] 8 SCR 993 ;
Saurabh Kumar v. Jailor, Koneila Jail (2014) 13 SCC
436 : [2014] 8 SCR 909 ; State of Maharashtra
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and Others v. Tasneem Rizwan Siddiquee (2018) 9 SCC
745 : [2018] 11 SCR 374 ; Gopal Vinayak Godse v.
The State of Maharashtra and Others [1961] 3 SCR
440 - relied on.
Sunil Batra (II) v. Delhi Administration (1980) 3 SCC
488 : [1980] 2 SCR 557 ; Mohd. Ikram v. State of U.P.
AIR 1964 SC 1625 : [1964] SCR 86 ; Ranjit Singh v.
State of Pepsu AIR 1959 SC 843 : [1959] Suppl. SCR
727 ; Ummu Sabeena v. State of Kerala (2011) 10 SCC
781 : [2011] 13 SCR 185 ; In the matter of-Madhu
Limaye and Others (1969) 1 SCC 292 : [1969] 3
SCR 154 ; Talib Hussain v. State of Jammu & Kashmir
(1971) 3 SCC 118 ; Sanjay Dutt v. State (II) (1994) 5
SCC 410 : [1994] 3 Suppl. SCR 263 - referred to.
Introduction to the Study of the Law of the Constitution
by A.V. Dicey, Macmillan and Co., Limited, p. 215
(1915); Halsbury's Laws of England, (4th Edn.) Vol. 11;
V.G. Ramachandran's Law of Writs, revised by Justice
C.K. Thakker & M.C. Thakker, 6th Edn. (2006) -
referred to.
2. The grant of remission or parole is not a right vested
with the prisoner. It is a privilege available to the prisoner on
fulfilling certain conditions. This is a discretionary power which
has to be exercised by the authorities conferred with such powers
under the relevant rules/regulations. The court cannot exercise
these powers though once the powers are exercised, the Court
may hold that the exercise of powers is not in accordance with
rules. [Para 27] [473-D-E]
3.1 The High Courts are empowered to frame rules in terms
of Article 225 of the Constitution of India but this power is subject
to the provisions of the Constitution of India and to the provisions
of any law of the appropriate legislature. What description has to
be given to a writ is for the High Court to decide. But the Rules
cannot confer jurisdiction which is not conferred by the
Constitution. The Rules obviously deal with cases of detention/
preventive detention where the detenu is under custody. If that
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custody is legal then obviously no writ of habeas corpus can be
issued for release of the detenu. Merely because the Rules
provide that in the petition details of the detention order, prison
etc., have to be given, does not mean that the writ of habeas
corpus cannot be issued where the Rules are silent. The Rules
cannot override the Constitution. [Paras 28 & 29] [475-B, F-H;
476-A]
3.2 If the Rules are to be the masters and not the
Constitution, then, probably in the Madras High Court no writ of
habeas corpus would be entertained in the case of private
detention. This would be against the spirit of the Constitution of
India. Therefore, reference to the Rules is of no aid whatsoever.
[Para 30] [476-B]
4.1 The High Court cannot direct the release of a petitioner
under G.O.(Ms.) No.64 dated 01.02.2018. In the present cases,
the representations made by the detenus had not been decided.
The proper course for the Court was to direct that the
representations of the detenus be decided within a short period.
Keeping in view the fact that the Scheme envisages a report of
the Probation Officer, a reference by the District Level Committee
and thereafter the matter has to be placed before the concerned
Range Deputy Inspector General and before Regional Probation
Officer and thereafter before the State Level Committee, it would
be reasonable to grant 2-3 months depending on the time when
the representation was filed for the State to deal with them. When
the petition is filed just a few days before filing the representation
then the Court may be justified in granting up to 3 months' time
to consider the same. However, if the representation is filed a
couple of months earlier and the report of the Probation Officer
is already available then lesser time can be granted. No hard and
fast timelines can be laid down but the Court must give reasonable
time to the State to decide the representation. The Court itself
cannot examine the eligibility of the detenu to be granted release
under the Scheme at this stage. [Para 31] [476-C-G]
4.2 There are various factors which have to be considered
by the committees. The report of the Probation Officer is only
one of them. After that, the District Committee has to make a
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recommendation and finally it is the State Level Committee which
takes a final call on the matter. the High Court erred in directing
the release of the detenus forthwith without first directing the
competent authority to take a decision in the matter. Merely
because a practice has been followed in the Madras High Court
of issuing such type of writs for a long time, cannot clothe these
orders with legality if the orders are without jurisdiction.
Past practice or the fact that the State has not challenged some of
the orders is not sufficient to hold that these orders are legal.
[Para 31] [476-G; 477-A-B]
4.3 In case, a petition is filed without any decision(s) of the
State Level Committee in terms of Para 5(I) of the G.O. in question,
the Court should direct the concerned Committee/authority to
take decision within a reasonable period. Obviously, too much
time cannot be given because the liberty of a person is at stake.
This order would be more in the nature of a writ of mandamus
directing the State to perform its duty under the Scheme. The
authorities must pass a reasoned order in case they refuse to
grant benefit under the Scheme. Once a reasoned order is passed
then obviously the detenu has a right to challenge that order but
that again would not be a writ of habeas corpus but would be more
in the nature of a writ of certiorari. In such cases, where reasoned
orders have been passed, the High Court may call for the record
of the case, examine the same and after examining the same in
the context of the parameters of the Scheme decide whether the
order rejecting the prayer for premature release is justified or
not. If it comes to the conclusion that the order is not a proper
order then obviously it can direct the release of the prisoner by
giving him the benefit of the Scheme. There may be cases where
the State may not pass any order on the representation of the
petitioner for releasing him in terms of the G.O.(Ms) No.64 dated
01.02.2018 despite the orders of the Court. If no orders have
been passed and there is no explanation for the delay then the
Court would be justified in again calling for the record of the case
and examining the same in terms of the policy and then passing
the orders. [Para 32] [477-B-F]
5. So far as the present cases are concerned, the High Court
though it had the report of the Probation Officer before it, has
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only noted one line of the order of the Probation Officer and not
the entire report(s). [Para 33] [477-G]
6. The detenu has in Criminal Appeal No. 144 of 2020
obtained various degrees and various other Vocational Diplomas.
The learning which he has obtained in jail must be put to use
outside. The jail record shows that his behaviour in jail has been
satisfactory. The only ground against him is that he had murdered
a person from another community and, therefore, it is said that
some religious enmity may still prevail. It has come on record
that on various occasions, he has gone back to his native place
though under police escort. In these circumstances this is a fit
case where this respondent should not be sent to another round
of litigation. Therefore, in exercise of power under Article 142
of the Constitution release of the respondent/ detenu is directed.
[Para 35] [480-A-C]
7. The detenu in Criminal Appeal No. 145 of 2020 is about
43 years of age now and that during the period of incarceration in
jail, he has completed the eleven educational courses. He had
gone on emergency leave 42 times (89 days) and by Court order,
he has been granted leave 2 (37 days) times and during the said
occasions, neither life threat to him nor was there any law and
order problem. In these circumstances this is a fit case where he
should not be sent to another round of litigation. Therefore, in
exercise of power under Article 142 of the Constitution his release
is directed. [Paras 36 & 37] [480-E; 481-C-D]
8. The detenu in Criminal Appeal No. 146 of 2020 is about
38 years of age now and during the period of incarceration in jail,
has completed three educational courses. In these circumstances
this is a fit case where this respondent should not be sent to
another round of litigation. Therefore, in exercise of power under
Article 142 of the Constitution his release is directed. [Paras 38
& 39] [481-D-G]
9. The detenu in Criminal Appeal No. 148 of 2020 is about
39 years of age now and during the period of incarceration in jail,
he has completed seven educational courses. In these
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circumstances this is a fit case where the Court should not send
this respondent to another round of litigation. Therefore, in
exercise of power under Article 142 of the Constitution his release
is directed. [Paras 40 & 41] [481-G-H; 482-A-D]
10. The detenu in Criminal Appeal No. 147 of 2020 is about
46 years of age and during the period of incarceration in jail, he
has completed the seven educational courses. The detenu in
this case was convicted in another case under Section 120(B) of
the Indian Penal Code, 1860 and sentenced to imprisonment for
5 years and was convicted under Section 4(a) and 4(b) of the
Explosives Substances Act, 1908 and was awarded 5 years
imprisonment and 4 years imprisonment under each of these
sections vide judgment dated 28.12.2018. This judgment of
conviction and sentence is after the date of the G.O.(Ms.) No. 64
dated 01.02.2018 in question and this will also have to be taken
into consideration. Therefore, as far as this case is concerned,
the competent authority is directed to consider the representation
of the detenu keeping in view the facts and circumstances of the
case and decide the same within 6 weeks. In case the State rejects
the plea of the detenu then a reasoned order has to be passed
and, in that eventuality, the detenu shall be at liberty to challenge
the order before the High Court. The State is directed to consider
and decide the representation of the detenu within 6 weeks from
the date of this judgment. [Paras 42, 43 and 45] [482-E-H;
483-A-C, F]
Case Law Reference
[1964] SCR 86
referred to
Para 14
[1980] 2 SCR 557
referred to
Para 19
(1972) 3 SCC 256
relied on
Para 21
[1974] 1 SCR 621
relied on
Para 22
[2012] 8 SCR 993
relied on
Para 23
[2014] 8 SCR 909
relied on
Para 24
[1959] Suppl. SCR 727
referred to
Para 23
[2011] 13 SCR 185
referred to
Para 23
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[1969] 3 SCR 154
referred to
Para 23
(1971) 3 SCC 188
referred to
Para 23
[1994] 3 Suppl. SCR 263
referred to
Para 23
[2018] 11 SCR 374
relied on
Para 25
[1961] 3 SCR 440
relied on
Para 26
[1981] 1 SCR 1196
followed
Para 26
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 144 of 2010.
From the Judgment and Order dated 04.01.2019 of the High Court
of Judicature at Madras in H.C.P. No. 2956 of 2018.
With
Criminal Appeal Nos. 145, 146, 147 and 148 of 2020.
Mukul Rohatgi, V. Giri, S.Nagamuthu, Ratnakar Dash, Sr. Advs.,
M. Yogesh Kanna, M. Thanga Thurai, S. Raja Rajeshwaran, Karthihk
R., Ms. Uma Prasuna Bachu, Muthu Chharan, Ms. Suvetha Shankar,
Rishabh Sancheti, Suyash Rawat, Anchit Bhandari, Vishnu Unnikrishnan,
K. Paari Vendhan, P. A. Noor Muhamed, Mokamed Yusuff, S.A.S
Alaudeen, Abdul Rahman, Shereef K.A., Sheik Moulali Basha, Mr. Ansar
Ul Haq, Hardik Gautham, G. Sivabalamurugan, Selvaraj Mahendran,
M. Vivek Bharathi, T. Harish Kumar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DEEPAK GUPTA, J. 1. Delay condoned.
2. Leave granted.
3. The main issue which arises for decision is as follows:
"Whether a writ of habeas corpus would lie, for securing release
of a person who is undergoing a sentence of imprisonment imposed by
court of competent jurisdiction praying that he be released in terms of
some Government orders / Rules providing for pre-mature release of
prisoners?"
4. At the outset, we may mention that on 17.10.2019 we had
framed two issues. We have reframed the first issue and on closer
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examination we are of the view that the second issue does not arise for
decision in this case.
5. The Governor of Tamil Nadu exercising powers under Article
161 of the Constitution of India got issued G.O.(Ms.) No.64 dated
01.02.2018 through the Home (Prison-IV) Department, Government of
Tamil Nadu wherein a Scheme was framed for considering the cases of
pre-mature release of convicted prisoners on the occasion of the Birth
Centenary of Shri M.G. Ramachandran, former Chief Minister of Tamil
Nadu. The relevant portion of the Scheme reads as follows:-
"5.The Government after careful examination have decided to
frame the following guidelines for considering the cases of life
convict prisoners for releasing them prematurely under Article
161 of the Constitution of India, in commemoration of the
Birthday Centenary of 'Bharat Ratna', Puratchi Thalaivar Dr.
M. G. Ramachandran, former Chief Minister of Tamil Nadu,
based on the announcement of Hon'ble Chief Minister:-
(I) The following committees are constituted for examining
the premature release of the life convict prisoners, case to
case basis, on the above lines.
(i) the State level committee headed by the Inspector General
of Prisons and the Deputy Inspector General of Prisons (Hqrs),
Legal officer, Administrative officer (Hqrs) shall be members
of the committee.
(ii) the Second level/District committee wherein the Central
Prisons/Special Prisons for Women located, headed by the
Superintendent of Prisons of the concerned Central Prison and
the Additional Superintendent of Prison, Jailor, Administrative
Officer and Probation Officer shall be members of the
committee.
(iii) the concerned Range Deputy Inspector General of Prisons
and Regional Probation officer of the concerned region shall
examine the proposal of the second level committee and send
the same to State Level committee along with recommendation.
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6. Under the Scheme, a State level committee and District
committees were constituted. The District committees were to consider
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the cases of the prisoners and send their recommendations to the Range
Deputy Inspector General of Prisons and Regional Probation Officer
who, after examination of the same, were to send the same to the State
level committee along with the recommendations. The Scheme further
provided as follows:-
(II) The life convicts who have completed 10 years of actual
imprisonment as on 25.02.2018 and the life convicts who are
aged 60 years and above and who have completed 5 years
of actual imprisonment on 25.02.2018 including those who
were originally sentenced to death by the Trial Court and
modified to life sentence by the Appellate Court (other than
those whose convictions have been commuted), may be
considered for premature release subject to satisfaction of
the following conditions:-
1) The prisoner's behaviour should be satisfactory.
2) Prisoners convicted for the following offences are
ineligible for consideration for premature release irrespective
of the nature and tenure of the sentence and irrespective of
the fact as to whether or not they have undergone the
sentence in respect of the said offence namely:"
Thereafter, the Scheme provides that prisoners convicted for
certain offences or for offences under certain Acts would not be eligible
for benefit under the Scheme. The Scheme also lays down the following
amongst other conditions:-
4) That there is safety for the prisoner's life, if released.
5) That the prisoner will be accepted by the members of
their family.
6) That there is safety of life of the family which was
affected by the prisoner, if released.
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8) The life imprisonment prisoners cannot claim premature
release as a matter of right."
7. As far as the present cases are concerned, the detenus whose
release were sought were convicted for various offences including the
offences under Section 302 of the Indian Penal Code, 1860. In all cases,
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they have been sentenced for life and their conviction and sentences
have been upheld till this Court. The petitions for habeas corpus were
filed on the ground that the State has not given benefit of the premature
release referred to above to the petitioners whereas many others have
been given the benefit.
8. In all the cases representations were made by the petitioners a
few months before filing the petitions in the High Court praying that they
be released in terms of G.O.(Ms) No.64 dated 01.02.2018. These
representations were pending but the High Court in almost identical terms
has held in all the cases that "There is no dispute over the fact that
the convict prisoner would be entitled to release under G.O.(Ms).
No.64, Home [Prison-IV] Department dated 01.02.2018. However,
he has been denied the benefit thereof, since the Probation Officer's
report informs danger to the life of the Convicts Prisoner, if he be
let at large." Thereafter, the High Court was of the opinion that the
detenu could not be denied release on the ground that life of the detenu
was in danger. However, it directed that the detenu be informed that his
life may be in danger while releasing him. In all the cases, reference
has been made to the report of the Probation Officer. These petitions
have been allowed by the High Court of Madras and allowing the writ of
habeas corpus, the detenus have been ordered to be released forthwith
in terms of G.O.(Ms) No. 64 dated 01.02.2018 unless their presence is
required in any other case.
9. These orders are under challenge before us. We have heard
Shri Mukul Rohatgi and Shri V. Giri, learned senior counsel for the
appellants, Shri Yogesh Kanna, learned counsel for the State of Tamil
Nadu and Shri S. Nagamuthu and Shri Ratnakar Dash, learned senior
counsel for the private respondents.
10. It has been urged on behalf of the State that the High Court
has transgressed the jurisdiction conferred upon it under Article 226 of
the Constitution of India while issuing the writ of habeas corpus. It is
contended that in all the cases the petitioners were convicted of the
offences of murder which conviction was upheld till this Court and,
therefore, by no stretch of imagination, can it be urged that the detention
of the detenus was illegal. It is further submitted that the High Court
could have at best directed consideration of the cases of the detenus by
the authorities under the G.O.(Ms) No.64 dated 01.02.2018 but could
not itself have directed release of the detenus. It is also submitted that
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the High Court has only noted one portion of the report of the Probation
Officer and ignored many other relevant considerations.
11. On the other hand, it is contended by learned senior counsel
appearing on behalf of the detenus that the High Court of Madras has
passed hundreds of orders of this nature but the State has selectively
chosen to challenge only a few of them. As far as jurisdiction is concerned,
it is submitted by learned senior counsel for the detenus that in terms of
the Rules to Regulate the Proceedings under Article 226 of the
Constitution of India framed by the High Court of Madras, the writs of
this type are described as habeas corpus writs and a writ of this nature
would not be entertained unless it is described as a writ of habeas
corpus under the Rules. It is further submitted that a writ of habeas
corpus would lie in such circumstances and it is also urged that in the
peculiar facts and circumstances of the case, this Court should not
interfere with the discretion exercised by the High Court. It was lastly
urged by learned senior counsel for the detenus that the prisoners have
been behind the bars for a very long period of time and even under the
normal rules of remission, they would be entitled to be released. It has
also been urged that many other detenus who were similarly situate
have already been released. He has brought to our notice a number of
orders passed by this Court in this regard. We may note that in many of
these orders this Court has not approved of the manner in which the
Madras High Court has ordered the release of prisoners but has upheld
the order of release on account of the long incarceration of the detenu.
12. We feel that a quietus has to be given to this matter and the
legal issue must be decided. As far as the objection of selective filing of
petitions by the State against orders of release by the High Court is
concerned, that objection is meaningless. We are not aware of the other
orders and, in any event, there can be no claim of negative discrimination
under Article 14 of the Constitution of India.
13. Article 226 of the Constitution of India empowers the High
Courts to issue certain writs including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari for the
enforcement of any right conferred under Part III of the Constitution
dealing with the fundamental rights. In this case, we are concerned
with the scope and ambit of the jurisdiction of the High Court while
dealing with the writ of habeas corpus.
THE HOME SECRETARY (PRISON) v. H. NILOFER NISHA
[DEEPAK GUPTA, J.]
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14. It is a settled principle of law that a writ of habeas corpus is
available as a remedy in all cases where a person is deprived of his/her
personal liberty. It is processual writ to secure liberty of the citizen from
unlawful or unjustified detention whether a person is detained by the
State or is in private detention. As Justice Hidayatullah (as he then was)
held; "The writ of habeas corpus issues not only for release from
detention by the State but also for release from private detention"1.
At the same time, the law is well established that a writ of habeas
corpus will not lie and such a prayer should be rejected by the Court
where detention or imprisonment of the person whose release is sought
is in accordance with the decision rendered by a court of law or by an
authority in accordance with law.
15. According to Dicey, -"if, in short, any man, woman, or child is,
or is asserted on apparently good grounds to be, deprived of liberty, the
Court will always issue a writ of habeas corpus to anyone who has the
aggrieved person in his custody to have such person brought before the
Court, and if he is suffering restraint without lawful cause, set him free."2
16. In Halsburry's Laws of England, a writ of habeas corpus is
described as "a remedy available to the lowliest subject against the most
powerful."3 It is a writ of such a sovereign and transcendent authority
that no privilege of person or place can stand against it4.
17. A writ of habeas corpus can only be issued when the detention
or confinement of a person is without the authority of law. Though the
literal meaning of the Latin phrase habeas corpus is 'to produce the
body', over a period of time production of the body is more often than
not insisted upon but legally it is to be decided whether the body is under
illegal detention or not. Habeas corpus is often used as a remedy in
cases of preventive detention because in such cases the validity of the
order detaining the detenu is not subject to challenge in any other court
and it is only writ jurisdiction which is available to the aggrieved party.
The scope of the petition of habeas corpus has over a period of time
been expanded and this writ is commonly used when a spouse claims
that his/her spouse has been illegally detained by the parents. This writ
1 Mohd. Ikram v. State of U.P., AIR 1964 SC 1625
2 A.V. Dicey, Introduction to the Study of the Law of the Constitution, Macmillan And
Co., Limited, p. 215 (1915)
3 Halsbury's Laws of England, (4th Edn.) Vol. 11, para 1454 p. 769
4 V.G. Ramachandran's Law of Writs, revised by Justice C.K. Thakker & M.C. Thakker,
Eastern Book Company, , p.1036, 6th Edn. (2006)
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is many times used even in cases of custody of children. Even though,
the scope may have expanded, there are certain limitations to this writ
and the most basic of such limitation is that the Court, before issuing any
writ of habeas corpus must come to the conclusion that the detenu is
under detention without any authority of law.
18. In these cases, the detenus have been sentenced to
imprisonment for life and as such their detention cannot be said to be
illegal. It is not for the writ court to decide whether a prisoner is entitled
to parole or remission and these matters lie squarely in the domain of the
Government.
19. Reliance has been placed by learned senior counsel for the
detenus on the judgment of this Court in the case of Sunil Batra (II) v.
Delhi Administration5, wherein Justice Krishna Iyer in his inimitable
style has dealt with the expanding scope of habeas corpus jurisdiction.
However, before referring to his views on the scope of habeas corpus,
one has to refer to the factual situation which led to the filing of the
case. Sunil Batra came to know that some other prisoners were being
tortured by the Head Warder Jail Superintendent to extract money from
the visiting relatives. He brought this to the notice of this Court and this
Court entertained his petition under Article 32 of the Constitution holding
that ''these proceedings which, though not strictly traditional, are
clearly in the nature of habeas corpus writs and, therefore, within
the widest sweep of Article 32''. The Court dealt with the very sensitive
issue of the manner in which prisoners in jail were deprived of their
basic human rights and it is in this context that the Court held as follows:-
"5....Prison houses are part of Indian earth and the Indian
Constitution cannot be held at bay by jail officials 'dressed in a
little, brief authority', when Part III is invoked by a convict. For
when a prisoner is traumatized, the Constitution suffers a shock.
And when the court takes cognizance of such violence and violation,
it does, like the Hound of Heaven, 'But with unhurrying chase,
and unperturbed pace, Deliberate speed and Majestic instancy'
follow the official offender and frown down the outlaw adventure."
20. This Court referred to the development of law in the United
States of America and held that the writ in the nature of habeas corpus
could be issued going beyond the conventional blinkers and the Court
5 (1980) 3 SCC 488
THE HOME SECRETARY (PRISON) v. H. NILOFER NISHA
[DEEPAK GUPTA, J.]
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must examine the manner in which the inmate is held and treated during
the currency of a sentence. One must remember that any person can
be deprived of his liberty only in accordance with the procedure
established by law. Therefore, when a person is sent to prison; whether
during the investigation under an order of remand, issued under Section
167 of the Code of Criminal Procedure,1973, or as an undertrial by denying
him the facility of bail, or after conviction; he is behind bars because of
the orders of the Court. The Court which deprives a person of his
liberty in accordance with law also has the responsibility to ensure that
such a person though under incarceration is not denied the other
fundamental rights which he is entitled to. Therefore, there can be no
dispute with the proposition that anybody who is behind bars and is illtreated or is deprived of his liberties, may approach the Court for a writ
of habeas corpus. In the apposite words of Justice Krishna Iyer:-
"26. Where injustice, verging on inhumanity, emerges from hacking
human rights guaranteed in Part III and the victim beseeches the
court to intervene and relieve, this Court will be a functional futility
as a constitutional instrumentality if its guns do not go into action
until the wrong is righted. The court is not a distant abstraction
omnipotent in the books but an activist institution which is the
cynosure of public hope. We hold that the court can issue writs to
meet the new challenges. Lord Scarman's similar admonition, in
his ENGLISH LAW - THE NEW DIMENSIONS, is an
encouraging omen. The objection, if any, is obsolete because in a
prison situation, a Constitution Bench of this Court [Sunil Batra v.
Delhi Admn., (1978) 4 SCC 494 and Sobraj (1978) 4 SCC 494]
did imprison the powers of prison officials, to put an under trial
under iron fetters or confine in solitary cells convicts with death
sentences under appeal.
27. Once jurisdiction is granted - and we affirm in unmistakable
terms that the court has, under Article 32 and so too under Article
226, a clear power and, therefore, a public duty to give relief to
sentences in prison settings - the next question is the
jurisprudential backing for the play of that jurisdiction. Here again,
Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 has blazed a trail,
and it binds.
28. Are prisoners persons? Yes, of course. To answer in the
negative is to convict the nation and the Constitution of
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dehumanization and to repudiate the world legal order, which now
recognises rights of prisoners in the International Covenant on
Prisoners' Rights to which our country has signed assent. In Sunil
Batra v. Delhi Admn., (1978) 4 SCC 494, this Court has rejected
the hands-off doctrine and it has been ruled that fundamental rights
do not flee the person as he enters the prison although they may
suffer shrinkage necessitated by incarceration.