15 Aug 2023 5:23 AM GMT
In a case pertaining to grant of remission to a life convict, the Telangana High Court has held that the executive prison authority cannot simply send recommendations to the Governor and sit quietly. They have to pursue the file with the Governor's office and get clearance of the proposal.Thus Justice K. Lakshman deprecated the explanation provided by the Principal Secretary, Home...
In a case pertaining to grant of remission to a life convict, the Telangana High Court has held that the executive prison authority cannot simply send recommendations to the Governor and sit quietly. They have to pursue the file with the Governor's office and get clearance of the proposal.
Thus Justice K. Lakshman deprecated the explanation provided by the Principal Secretary, Home Department (Prison) over delay in granting remission to the petitioner- that unless Governor pardons the Convict in terms of Article 161 of the Constitution he has no role in the matter.
“In the light of the same, respondent Nos.1 and 2 shall appraise the timelines fixed by the Apex Court in disposal of applications submitted by life-convicts seeking remission to the Hon'ble Governor and shall get clearance of the file. They cannot wash their hands and keep quiet by simply sending the file to the Hon'ble Governor.”
A contempt Case was filed by the son of life convict, Mohd Sarwar, challenging the rejection of request seeking remission by the Prison Authorities, despite directions from the Court to consider the request.
It was the case of the petitioner that his father was convicted for life on the charges of murder of a public servant while on duty and has been in imprisonment since the last 27 years.
The conviction was challenge before the High Court which held that the public servant, a Deputy Secretary of the AP State Wafq Board, was murdered at 9:30 p.m. and it could not be said that the individual was murder while on duty. The Court had further directed authorities to consider the request of the life convict for remission, while taking into account actual sentence and total sentence completed.
Despite the said Order, the Principal Secretary of Home Department (prison) rejected the request for remission on the grounds that the request falls under the category of Clause (III) (a) of Para 5 of G.O.Ms.No.16, Home (Legal) Department of 2016, for murder of 'public servant' while performing duty i.e, undergo minimum actual sentence of 18 years with remand period and total sentence of 24 years including the period of remission.
The Principle Secretary stated that in compliance with the order of the Court, the request of the life convict was considered in 2021 and the same was placed before a Screening Committee. The Screening Committee upon making reviews recommended the request of the life convicts for premature release to the Governor, and the same a still pending for decision under Article 161 of the Constitution.
Further it was averred by the Principle Secretary that he was not in contempt of the Orders of the Court, as it is only the governor who has the power to grant remission under Article 161. The Principle Secretary having further the recommendations before the governor was in compliance with the orders of the court since there was no enabling provision for pursuing the matter further with the Governor.
The Court observed that the Principle Secretary had conveniently skipped to explain why the request for remission, submitted after the orders of the court was rejected.
The court noted that the power vested with the Governor under Article 161 is subject to judicial review and that unexplainable delay in disposing request and the Article 161 is inexcusable as it would contribute adversely to the mental and physical distress of the prisoner.
Referring to various judgements of the Apex Court, Justice Lakshman observed that the governor is a shorthand expression of the state just like the president is for the central government.
"It is relevant to note that they cannot simply send recommendations to the Hon'ble Governor and keep quiet. They have to pursue with the Hon'ble Governor and get the clearance of the proposal."
Case Title: Modh. Sarfaraz v. Ravi Gupta, Principal Secretary Home Department(Prision) and Ors.
Citation: 2023 LiveLaw (Tel) 36
Counsel for petitioner : Pushpinder Kaur
Counsel for Respondents: Samala Ravinder, GP for Home.
Click Here To Read/Download Order