JUDGMENT
Bellie, J.
1. This Writ Petition is by one P. V. Bakthavatchalam, as Advocate who claims that he is very much interested in protecting the Civil and Democratic rights of citizens of India and particularly the State of Tamil Nadu, and as such, as a Public Interest Litigation, he is filing this petition to redress the sufferings of two prisoners who are kept in illegal custody in Palayamkottai Central Prison.
2. One Mr. David and one Mr. Raju were prisoners bearing Convict Nos. 5504 and 5510 respectively confined in Central Prison, Palyamkottai. Both were imprisoned to undergo imprisonment for life under Sections 396, 460 and 302, I.P.C. on 25-3-1975. They had suffered imprisonment for 15 1/2 years calculated from the date of their arrest on 1-4-1974. On 14-4-1989 the Government of Tamil Nadu ordered release of life convicts who had by then completed 14 years of imprisonment in pursuance of G.O. Telex No. 2875/ Pr. IV/89-6 dated 14-4-1989 and after their executing a bond they were duly released :
According to the petitioners, since then they started a new lease of life, and alliance for each of them for marriage also is almost settled. When they were settling down to normal life, on 9-6-1989 the prison officials headed by the Jailor of Palyamkottai Central Prison, on the pretext that the persons were required in the prison for receiving the fund provided by the Government for their rehabilitation took them to the prison and there they were manhandled and locked up inside the jail. They were informed that they were not qualified for release under the G.O. Ms. No. 1762 (Pr.IV) dated 20-7-1989 and therefore they were brought back. The action of the authorities is mala fide and their detention since 9-6-1989 is illegal. The convict David’s mother had sent a petition to the Supreme Court and that had been sent by the Supreme Court to the Madras High Court but no action had been taken thereon. Then David sent a fresh petition to the Hon’ble the Chief Justice of the High Court, Madras, which had been referred to the Legal Aid Board and Raju also had sent a petition to the Legal Aid Board. The petitioner wanted to place before the Court all these facts so that proper steps would be taken for the release of the convicts in illegal custody. On these allegations the petitioner prayed for a direction to the first respondent – the Government of Tamil Nadu and the second respondent – Inspector General of Prisons to produce the persons before this Court and set them at liberty. It is further prayed for directing the first respondent to pay compensation of Rs. 2 lakhs for each of the prisoners for their suffering due to illegal detention. It is also prayed for directing the fourth respondent – Registrar, High Court, Madras, to frame a scheme to mete out speedy justice to the people like the said Prisoners.
3. The writ petition is resisted by respondents 1 to 3 by filing a common counter in which it is contended that the Government in Telex No. 28759/ Pri. IV/89-6, dated 14-4-1989 had ordered release of all lifers who had completed 14 years of actual sentence except those who are not eligible for premature release as per the G.O. Ms. No. 1762, Home, dated 20-7-1987. As per that G.O., the two prisoners in question were not eligible for premature release they having been convicted under S. 396, I.P.C. but the Superintendent, Central Prison, Palyamlittai inadvertently released them simply because they had undergone 14 years of actual sentence without verifying whether they are persons eligible for release under the said Government order. Since they were wrongly release the Inspector General of Prisons in his memorandum No. 4719/WI/89, dated 25-5-1989 had ordered re-arrest of the above two persons as per paragraph 567 of the Tamil Nadu Prison Manual Vol. IV. In pursuance of that order the convicts were brought back to prison on 10-6-1989 and it is not true that they were manhandled. It is also contended that premature release cannot be claimed as a matter of right. Regarding the lifers Government are the only authority to remit the unexpired portion of the sentence and order release of the prisoners under S. 432, Cr.P.C. It is further contended that imprisonment for life means imprisonment throughout life of the prisoner. Even though the two convicts have undergone 20 years of imprisonment including the remissions they cannot claim premature release as a matter of right. In these circumstances no question of payment of compensation arises. Therefore, the petition is liable to be dismissed.
4. Now, it is not in dispute that the two prisoners were released on 14-4-1989 in pursuance of a Telex No. 28759/ Pr.IV/ 89-6 dated 14-4-1989. The Telex Message which appears to have been addressed to all the Superintendents of Central Prisons reads thus :-
“Release immediately all life convicts who have completed fourteen years of actual imprisonment except those who are not eligible for premature release as per G.O. Ms. No. 1762, Home, dated 20-7-87. AAA subject to usual terms and conditions. Send prison records for issue of formal orders immediately.”
It can be clearly seen from this massage that life convicts who have completed 14 years of actual imprisonment, but not those who are not eligible for premature release as per G.O. Ms. No. 1762, dated 20-7-1987, were ordered to be released. As per G.O. Ms. No. 1762, Home, dated 20-7-1987, a copy of which is annexed to the counter filed by the respondents, and which appears to have been issued accepting the recommendation of the All India Committee on Prison Reforms, certain categories of prisoners are not eligible for premature release. One such category of prisoners are those convicted under S. 396, I.P.C. If we may repeat in the telex message it is clearly stated that those prisoners who are not eligible for premature release under the said Government order shall not be released. But in spite of this the two prisoners in question who have been sentenced under S. 396, I.P.C. have been released by the Superintendent of the Palayamkottai prison along with 33 other prisoners. This is apparently a mistake committed by the Superintendent.
On discovery of the mistake, according to the respondents, the Inspector General of Prisons as per paragraph 567 of the Tamil Nadu Prison Manual Vol. IV, in Memo No. 4719/W1/89, dated 25-5-1989 has ordered to arrest the said two persons and subject them to confinement. Paragraph 567 of the Tamil Nadu Prison Manual Vol. IV, an extract of which has been annexed to the counter, deals with ‘Premature release by mistake’ and it provides for arresting and subjecting the confinement of such prisoners released by mistake. From the facts it appears clear that in view of the Govt. Order 1762 dated 20-7-1987 they were not eligible for premature release but it was by mistake not properly understanding the telex message th Superintendent had released these two prisoners also and therefore the Inspector General of Prisons has under the Memo ordered to arrest these Prisoners and subject to confinement. We therefore see no illegality in arresting the said two persons and subjecting them to confinement.
5. However, it is argued by Mr. T. Kalaimani, learned counsel representing the petitioner that the order of the Inspector General of Prisons is arbitrary and mala fide. But there is nothing to substantiate this contention. It is not stated in the affidavit filed in support of the petition as to in what way the order is arbitrary and mala fide.
6. It is next contended by the learned counsel that the two prisoners were convicted on 25-3-1975 i.e., 12 years before passing of the Government order and any criminal law can be only prospective in operation and therefore G.O. Ms. No. 1762, Home, dated 20-7-1987 cannot be applied retrospectively to the said prisoners. We find no merit in this contention. The Government under S. 433, Cr.P.C. has been empowered to commute sentences. By virtue of this provision only the Government has sent the telex message for release of the prisoners who have completed 14 years of actual imprisonment. S. 433A which is an amendment section inserted in 1978 restricts the general power of the Government to remit sentences under S. 433 by providing that in the case of certain categories of convicts their sentences shall not be commuted under S. 433 unless they had served at least 14 years of imprisonment. This S. 433A is not quite relevant for our purpose. Now, it is only under S. 433, the Government has issued the telex message for release of the life convicts and in that telex message itself it is made clear that it will not apply to those life convicts who are not eligible for pre-mature release as per G.O.Ms. No. 1762 Home, dated 20-7-1987. Therefore under S. 433, the prisoners are not entitled to be released prematurely as a matter of right. Either under S. 433 or under any other section it is entirely the discretion of the Government to release the prisoners prematurely. As a self-imposed restriction, accepting the recommendation of the All India Committee on Prison Reforms, the Government has issued the Government order to the effect that prisoners sentenced under certain sections of the Indian Penal Code are not eligible for pre-mature release. One of those sections is S. 396, I.P.C. under which section the two prisoners in our case have been sentenced for life imprisonment. This Government order has nothing to do with the date of conviction. Thus there is no question of retrospectively applying the G.O. No. 1762, Home, dated 20-7-1987.
7. It is also argued, though such a point has not been raised in the affidavit filed in support of the petition, that the Government order is discriminatory and offending Art. 14 of the Constitution. But those sentences awarded for offences which are henious in character such as rape, forgery, dacoity, terrorist crimes and offences against the State; and prisoners convicted of economic offences, black-marketing, smuggling and misuse of power and authority; and prisoners sentenced under prevention of Corruption Act, Supression of Immoral Traffic in Women and Girls Act, Drugs Act and Prevention of Food Adulteration Act only have been made not eligible for premature release. May be the Government thought that the prisoners who have committed the said offences should not be shown any mercy and that if they are released they may again be a menace to the society. Therefore the Government order is quite reasonable and certainly there is no discrimination offending Art. 14 or any other Article of the Constitution. Thus we find no merit in this petition.
8. The learned counsel cited the decisions in (1) “G. M. Morey v. Government of Andhra Pradesh” and (2) “Bhagirathi v. Delhi Administration”, which deal with the point whether S. 433A, Cr.P.C. will be applicable to those who were convicted before that section came into being and it was decided that it will not apply to those people. But these decisions are in no way relevant to our case. “G. P. Nayyar v. State (Delhi Administration)“, by him referring to Art. 20(1) of the Constitution states that the Article only prohibits conviction of a person or his being subjected to a penalty under ex post facto laws. We are not concerned with this point in the present case. He next relied on (1) “Rudul Sah v. State of Bihar” (2) “Sebastian M. Hongray v. Union of India“. AIR 1984 SC 1026 : 1984 Cri LJ 830 and (3) “Bhim Singh v. State of Jammu and Kashmir”. in respect of the plea that compensation can be awarded for illegal detention, but we have held that there is no illegality in the detention and therefore no question of payment of compensation arises.
9. In the result, therefore the writ petition is dismissed.
10. Petition dismissed.