The Supreme Court is to examine whether a Habeas Corpus writ petition will be maintainable seeking premature release of a convicted prisoner in terms of some Government orders / Rule.
Another issue that will be considered in this case, titled as Home Secretary (Prisons) vs. H. Nilofer Nisha, is whether the state, on its own, provide for release of prisoners who have been directed to undergo life imprisonment in cases where the offence is also punishable by death prior to their serving 14 years of incarceration?
H. Abuthahir, a murder convict, has been serving life imprisonment. His plea seeking to avail benefit of a Government order was rejected on the basis of the Probation Officer’s report that there is a danger to his life, if he be let at large. While allowing the habeas corpus writ petition filed by his mother, the division bench of Madras High Court observed that such a ground to deny him relief under the Government order is unreasonable. Refusing release of a prisoner on the ground that his safety is at risk would amount to denying him the same not owing to any fault of his but on an apprehension of possibility of wrong doing by others, the court had observed. It then recommended his release by informing the possibility of harm to him.
This order was assailed before the Apex Court by the state authority. The bench comprising Justice Deepak Gupta and Justice Aniruddha Bose will consider the following issues on 25th November 2019:
Whether a person who is behind bars because of sentence imposed to him by a criminal court can approach the writ court praying for a writ of habeas corpus that he be released in terms of some Government orders / Rules providing for pre-mature release. The issue is whether a writ of habeas corpus in such circumstances would lie or not?
Whether any State without the consent of the President of India can form a scheme which is in variation or violative of the provision of Section 433A of the Code of Criminal Procedure and provide for release of prisoners who have been directed to undergo life imprisonment in cases where the offence is also punishable by death prior to their serving 14 years of incarceration.?
GO Allowing Pre-mature release including those who were originally sentenced to death but commuted by Appellate Court
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 certain conditions.
The Madras High Court has allowed similar Habeas Corpus petitions in which the petitioners sought premature release invoking this GO. While considering a case concerning premature release rules in the state of Madhya Pradesh, the Supreme Court had observed that there cannot be State Probation Rules in total contradiction to the Section 433A of the Code of Criminal Procedure