Judgment :- Vinod K. Sharma, J. The State of Tamil Nadu has filed this Writ Appeal against the order passed by the Hon’ble Ms. Justice K. Suguna allowing the writ petition filed by K. Subramaniyam, father of the convict seeking a writ in the nature of mandamus directing the respondents/appellants herein to consider the case of S. Selvaraj, life Convict No.85882 for premature release in pursuance of G.O.Ms.No.1155, Home (Prison-IV) Department dated 11.09.2008 and to release him from the prison. 2. The brief facts leading to filing of the writ petition are that S. Selvaraj was convicted and sentenced to imprisonment for life under Section 302 of the Indian Penal Code and also 6 months rigorous imprisonment for each of the offences under Section 498(A) of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act. The sentences were ordered to run concurrently. The appeal against the conviction made in S.C.No.108 of 1991 by the Principal Sessions Judge, Trichy was dismissed by this Court in Crl.A.No.632 of 1991 and also by the Hon’ble Supreme Court. It was claimed by the writ petitioner/respondent herein that the convict had undergone seven years, seven months and 22 days of actual imprisonment and he had no adverse remarks against him during his jail days. The convict is a Post Graduate not involved in any offence and hails from a textile business family. The Government of Tamil Nadu issued G.O.Ms.No.1155, Home (Prison-IV) Department dated 11.09.2008 in the interest and welfare of Prisoners, on the occasion of the Birth Centenary of Perarignar Anna on 15.09.2008, the Government has taken a decision that all the life convicts who had completed seven years of actual imprisonment as on 15.09.2008 and those who are aged 60 years and above and completed five years of actual imprisonment as on 15.09.2008 could be released prematurely. However, this concession was not applied to: (a) the prisoners who were convicted for offences specified in G.O.Ms.No.1762, Home Department dated 20.07.1987; and (b) the prisoners who are awarded death penalty and whose sentence was later commuted to life imprisonment by the appellate Court and the prisoners who committed offences on religious prejudice; The State Government by applying this Government order released certain life convicts by remitting remaining sentences. Since the case of the convict in the writ petition was not considered, the writ petitioner/respondent herein, who is the father of the life convict invoked the jurisdiction of this Court with a prayer for issuance of writ of mandamus, to consider his case for premature release. 3. The stand of the writ petitioner/respondent herein was that the Government order was issued in exercise of power conferred under Article 161 of the Constitution of India, therefore binding on the State Government. 4. Whereas the appellants’ stand was that as per Rule 341(3)(iv) of the Tamil Nadu Prison Rules, 1983, as amended in G.O.Ms.No.785, Home (Prison V) Department dated 27.03.1996, the convicts who were held guilty of offences under Section 498(A) of the Indian Penal Code, were not entitled to benefit under the Government order issued in G.O.Ms.No.1155, Home (Prison IV) Department dated 11.09.2008 on which the reliance was placed by the writ petitioner/respondent herein. 5. The learned Single Judge accepted the stand of the writ petitioner/respondent herein, that the order passed in exercise of power conferred under Article 161 of the Constitution of India and Article 72 of the Constitution of India had an overriding effect, even over the statutory provisions. The support for this finding was drawn by the Hon’ble Single Judge from para 7 and 9 of the judgment of the Hon’ble Supreme Court in the case of State of Punjab and others Vs. Joginder Singh and others reported in A.I.R. 1990 SC 1396. The learned Single Judge further held that the benefit under the Government order therefore could not be denied by invoking the Tamil Nadu Prison Rules 1983. 6. The learned Single Judge thereafter by relying on the judgment of this Court in the case of Ramasamy Gounder Vs. Inspector of Police, District Crime branch, Kancheepuram and another reported in 2000 (1) C.T.C. 206 , held that the order passed under Article 161 or 72 of the Constitution of India had an overriding effect. The paragraph 17 of the judgment of this Court reads as follows: “17. From the above decisions, it is clear that the Court cannot order release of the petitioner by invoking the remission granted under the G.Os. and on the contrary by considering the G.Os., the court can direct the appropriate Government to consider the case of the respective petitioners and to pass an order by granting remission in their favour. From the above decisions, it is clear that the Court cannot order release of the petitioner by invoking the remission granted under the G.Os. and on the contrary by considering the G.Os., the court can direct the appropriate Government to consider the case of the respective petitioners and to pass an order by granting remission in their favour. Accordingly, in the instant case also, the State Government has to be directed for release of the petitioner by invoking the remission granted under G.O.Ms.No.1342, Home (Prisons IV) Department dated 12.09.1996 without taking into consideration of the exemption granted under G.O.No.1762/Home (Prisons IV) Department, dt.20.07.1987.” 7. As already referred to, the contention of the State, that as the prisoner was convicted under Section 498A of Indian Penal Code, therefore was not entitled to remission, in view of Rule 341(3)(iv) of the Tamil Nadu Prison Rules 1983 was rejected by the Hon’ble Single Judge. The other contention of the learned Advocate General that as the offence committed by the convict was heinous in nature, his claim deserves to be rejected, was also not accepted by the Hon’ble Single Judge. The Hon’ble Single Judge did not accept the argument of the State that as per G.O.Ms.No.1762 convict was not considered for premature release on the ground that Section 498A of Indian Penal Code was inadvertently not included in the Government order, and that the State Government is taking steps to include the prisoners convicted under Section 498A in the said Government order. 8. In view of the judgment of the Hon’ble Supreme Court in the case of Sanaboina Satyanarayana Vs. Govt. of Andhra Pradesh and others reported in 2004 S.C.C. (Crl) 476 the State Government took a stand that granting remission to a certain category of prisoners who were convicted for life for crime against women have been excluded for premature release. 9. The convict in the present writ petition was convicted for the crime against women, therefore he is not entitled for remission. 10. However, the Hon’ble Single Judge did not accept the contention in view of the Government order issued by the State Government in exercise of powers under Article 161 of the Constitution of India. 9. The convict in the present writ petition was convicted for the crime against women, therefore he is not entitled for remission. 10. However, the Hon’ble Single Judge did not accept the contention in view of the Government order issued by the State Government in exercise of powers under Article 161 of the Constitution of India. The reason for rejecting the contention of the State was that the case of the convict was governed on the basis of rules and regulations, in force on the date of cause of action, and the future intending amendment could not be a ground to deny the benefit of the writ petitioner. 11. The contention of the learned Advocate General that in view of the order dated 4.07.2007 passed by the Hon’ble Division Bench of this Court in H.C.P.No.1245 of 2006, the case of the writ petitioner was liable to be rejected. However the said contention was negatived by the Hon’ble Single Judge by placing reliance on the judgment of the Hon’ble Supreme Court in the case of State of Punjab and others Vs. Joginder Singh and Others reported in A.I.R. 1990 SC 1396. The Hon’ble Single Judge referred to para 7 of the said judgment wherein the Hon’ble Supreme Court had considered the law laid down in the case of Maru Ram Vs. Union of India (1981) 1 SCR 1196 : ( AIR 1980 SC 2147 ). The reliance placed by the learned Advocate General on the judgment of the Hon’ble Supreme Court reported in 2004 SCC (Crl) 476 (cited supra) was not accepted by the Hon’ble Single Judge as the Hon’ble Supreme Court in the said case had upheld the Government order excluding certain convicts who were convicted for life for crime against women from the benefit of remission. 12. The direction issued to the respondent is to consider the case of the writ petitioner’s son for premature release and pass an order by granting remission in favour of the writ petitioner’s son. It was also directed that the order should be passed within 30 days from the date of receipt of copy of the order passed by this Court. 13. It was also directed that the order should be passed within 30 days from the date of receipt of copy of the order passed by this Court. 13. The order passed by the Hon’ble Single Judge is challenged by the learned Advocate General, by contending that the Government order in G.O.Ms.No.1155 Home Prison IV dated 11.09.2008 was not applicable to the case of the writ petitioner/respondent’s son, as it exclude the persons who were convicted for the offences mentioned in Government order in G.O.Ms.No.1762 Home department dated 28.7.1987. 14. It was also the contention of the learned Advocate General that the son of the writ petitioner was convicted for the offences under Section 498A. Therefore, as per the rule 341(3)(iv) of Tamil Nadu Prison Rules 1983, he is not eligible to get benefit of the Government order dated 11.09.2008 cited supra. 15. G.O.Ms.No.785 Home (Prison IV) dated 27.03.1996 was also pressed into service, to contend that the persons who were convicted under Section 498A of Indian Penal Code, were not entitled to remission for premature release under the amnesty orders of His Excellency, the Government of Tamil Nadu. 16. It was finally contended by the learned Advocate General that in view of the judgment of the Hon’ble Supreme Court in the case of Gopal Vinayak Godse Vs. The State of Maharashtra and Others (A.I.R. 1961 SC 600) wherein it has been held that the question of remission is exclusively within the province of appropriate Government and therefore, the Hon’ble Single Judge ought not to have issued direction against the stand taken by the State. 17. The learned Advocate General also placed reliance on the judgment of the Hon’ble Punjab High Court in the case of State of Punjab Vs. Joginder Singh reported in 1997 (1) L.W. (Crl) 157 wherein the Hon’ble Punjab High Court held that High Court could not issue direction to State for release of the convict and set him liberty forthwith. The only direction which could be issued to the State Government is to consider the case of the convict for premature release by the Government. In support of the contention referred to above, the learned Advocate General placed reliance on the judgment of the Hon’ble Supreme Court in the case of State of Harayana Vs. The only direction which could be issued to the State Government is to consider the case of the convict for premature release by the Government. In support of the contention referred to above, the learned Advocate General placed reliance on the judgment of the Hon’ble Supreme Court in the case of State of Harayana Vs. Joginder Singh reported in 2003 (9) SCC 114 wherein the Hon’ble Supreme Court upheld the classification of convicts on the basis of offences committed and nature thereof and effect of such offences on the Society, as also integrity of the State. 18. In order to appreciate the contention of the learned Advocate General it would be appropriate to peruse the G.O.Ms.No.1762 (Prison VI) dated 20.7.1987. As per the Government order, the Government of Tamilnadu recommended that the following categories of prisoners were not eligible for consideration of premature release: (i) Prisoners- convicted of rape, forgery, dacoity, terrorist crimes, offences against the State and prisoners sentenced under sections 224, 376, 396 to 400, 402, 467, 471, 472, 474, 489A, 489B and 489D of the Indian Penal Code. (ii) Prisoners convicted of economic offences, black marketing, smuggling and misuse of power and authority; (iii) Prisoners sentenced under Prevention of Corruption Act, Suppression of Immoral Traffic in Women and Girls Act, Drugs Act and Prevention of Food Adulteration Act. 2. As there is no provision either in the Tamil Nadu Prison Manual Volume II or in the guidelines issued vide G.O.Ms.No.1064, Home, dated 24.4.1936 for not consider any category of prisoners for premature release, the Government after careful consideration accept the recommendation of All India Committee on Prison Reforms in para 17.2 of Chapter XX of its report and direct that the following category of prisoners should not be considered for premature release; (i) Prisoners convicted of rape, forgery, dacoity, terrorist crimes, offences against the State and prisoners sentenced under sections 224, 376, 396 to 400, 402, 467, 471, 472, 474, 489A, 489B and 489D of the Indian Penal Code. (ii) Prisoners convicted of economic offences, black marketing, smuggling and misuse of power and authority; and (iii) Prisoners sentenced under Prevention of Corruption Act, Suppression of Immoral Traffic in Women and Girls Act, Drugs Act and Prevention of Food Adulteration Act. A reading of the above Government order would show that Section 498 A of Indian Penal Code is not covered under the above Government order. 19. A reading of the above Government order would show that Section 498 A of Indian Penal Code is not covered under the above Government order. 19. The State Government vide G.O.Ms.No.785 dated 27.03.1996 made certain amendments to the Tamil Nadu Prison Rules 1983 by adding the following clauses in Rule 341 in proviso to Sub Rule 3 of clause 2 and 3 which reads as under: “Prisoners sentenced for offences under Sections 498(A) and 306(B) of the IPC (Central Act, XLV of 1860).” 20. In view of the law laid down by the Hon’ble Supreme Court in the case of State of Punjab Vs. Joginder Singh reported in 1997 (1) L.W. (Crl) 157, these rules cannot be invoked to deny the benefit of order passed in exercise of power under Article 161 of the Constitution of India. The writ petitioner in fact had claimed the benefit under Government order in G.O.Ms.No.1155 dated 11.09.2008 issued in exercise of power under Article 161 of Constitution of India which reads as under: “ORDER: In the interest an welfare of the prisoners and on the occasion of the Birth Centenary of Peraringnar Anna on 15.09.2008, the Government have decided that all the life convicts (i) who have completed 7 years of actual imprisonment on 15.09.2008; and (ii) who are aged 60 years and above and have completed 5 years of actual imprisonment as on 15.09.2008. May be released prematurely subject to the satisfaction of the following conditions:- (i) That the following categories of prisoners will not be eligible for this concession:- a) The prisoners who are convicted for the offences specified in G.O.(MS).No.1762, Home, Dated 20.07.1987. b) the prisoners who were awarded death penalty and whose sentence was later commuted to life imprisonment by the appellate Court and the prisoners who committed offences on religious prejudices. (ii) That their general behaviour in the prison should be satisfactory. (iii) That the life of the convict would be safe if released; (iv) That they would be accepted by the members of their family or any other social organizations which can give guarantee for the safety of their lives. (v) That their cases should not come under Section 435 Cr.P.C. And (vi) That they will execute the bonds as per usual terms and conditions. 2. (v) That their cases should not come under Section 435 Cr.P.C. And (vi) That they will execute the bonds as per usual terms and conditions. 2. The Additional Director General of Prisons, Chennai has furnished a list of 1340 life convict prisoners who have completed 7 years of actual imprisonment as on 15.09.2008 including 3 life convict prisoners of Tamil Nadu undergoing their sentence in the prisons of Kerala State on reciprocal basis and another list of 66 life convicts who are aged 60 years and above and have completed 5 years of actual imprisonment as on 15.09.2008 eligible for premature release. He has recommended for premature release of these 1406 life convicts on 15.09.2008. 3. The Government have examined the list of life convict prisoners furnished by the Additional Director General of Prisons for premature release on 15.09.2008 and it is found that one prisoner is not eligible for premature release under Article 161 of the Constitution of India since he has been convicted also under the provisions of section 3(2) (5) of the SC & ST (Prevention of Atrocities) Act, 1989 (Central Act 33 of 1989). The Government after careful consideration, accept the list of 1339 life convicts who have completed 7 years of actual imprisonment as on 15.09.2008 and 66 life convicts who are aged 60 years and above and have completed 5 years of actual imprisonment as on 15.09.2008 recommended by the Additional Director General of Prisons for premature release on the occasion of the Birth Centenary of Peraringnar Anna as furnished in the Annexures I, II and III to this order. 4. Accordingly, the Government direct that (i) the 1336 life convicts prisoners confined in various Central Prisons and Special Prisons for Women and who have completed 7 years of actual imprisonment as on 15.09.2008 mentioned in Annexure I; (ii) the 3 life convicts prisoners who are undergoing their sentence in the prisons of Kerala State on reciprocal basis and who have completed 7 years of actual imprisonment as on 15.09.2008 mentioned in Annexure II; and (iii) the 66 life convicts confined in various Central Prisons and Special Prisons for Women, aged 60 years and above and have completed 5 years of actual imprisonment as on 15.09.2008 mentioned in Annexure III be released prematurely on the occasion of the Birth Centenary of Peraringnar Anna on 15.09.2008. 5. 5. These orders are applicable to the life convict prisoners who have been convicted by the court of criminal jurisdiction of the State of Tamil Nadu and are now undergoing their sentence in the prisons of other States/Union Territories on reciprocal basis. However, this order shall not be applicable to those prisoners who have been convicted by court of criminal jurisdiction of other States/Union Territories/other countries but undergoing imprisonment in the State. 6. In exercise of the powers conferred under Article 161 of the Constitution of India, the Governor of Tamil Nadu hereby remits the unexpired portion of sentence of imprisonment for life passed on the 1405 life convicts mentioned in Annexure I, II and III to this order, confined in various Central Prisons, Special Prisons for Women and the prisons in the State of Kerala subject to the conditions mentioned in para 1 above.” 21. The Hon’ble Single Judge was right in coming to the conclusion that merely because the Government had an intention to include the offence under Section 498A also in the G.O.Ms.No.1762 (Prison VI) dated 20.07.1987 could not be a ground to deny the benefit to which the convict was entitled to as per the existing Government order. 22. The learned counsel appearing for the writ petitioner/ respondent herein citing the order passed by the Hon’ble Single Judge, sought to dismiss the appeal by relying upon the judgment of the Hon’ble Supreme Court in the case of State of Punjab Vs. Joginder Singh reported in 1997 (1) L.W. (Crl) 157 wherein the Hon’ble Supreme Court was pleased to lay down the law as under: “8. In Maru Ram v. Union of India this court repelled the challenge to Section 433-A both on the question of competence of Parliament to enact the provision and its constitutional validity. While interpreting Sections 432, 433 and 433-A of the Code, this Court pointed out that wide powers of remission and commutation of sentences were conferred on the appropriate government but an exception was carved out for the extreme category on convicts who were sentenced to death but whose sentence had been commuted under Section 433 into one of imprisonment for life. Such a prisoner is not to be released unless he has served at least 14 years of imprisonment. The court refused to read down Section 433-A to give overriding effect to the Remission Rules of the State. Such a prisoner is not to be released unless he has served at least 14 years of imprisonment. The court refused to read down Section 433-A to give overriding effect to the Remission Rules of the State. It categorically ruled that Remission Rules and like provisions stand excluded so far as ‘lifers’ punished for capital offences are concerned. Remissions by way of reward or otherwise cannot cut down the sentence awarded by the court except under Section 432 of the code or in exercise of constitutional power under Article 72/161 of the Constitution. Remission cannot detract from the quantum and quality of the judicial sentence except to the extent permitted by Section 432 of the Code, subject of course to Section 433-A, or where the clemency power under the Constitution is invoked. But while exercising the constitutional power under Article 72/161, the President or the Governor, as the case may be, must act on the advice of the Council of Ministers. The power under Articles 72 and 161 of the Constitution is absolute and cannot be fettered by any statutory provision such as Sections 432, 433 and 433-A of the Code. This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules.” 23. On consideration, we find there is no force in this appeal in view of the law laid down by the Hon’ble Supreme Court in the case of State of Punjab Vs. Jogindar Singh reported in 1997 (1) L.W. (Crl) 157. 24. It is now well settled that the power under Article 72 and 161 of Constitution of India is absolute and cannot be curtailed by any statutory provisions such as Sections 432, 433 and 433A of the Code nor this power can be altered or modified to interfere with in any manner whatsoever by any statutory provisions of Prison rules. 25. The reliance placed by the learned Advocate General on Rule 341(3)(iv) of Tamil Nadu Prison Rules 1983 to deny the benefit to the petitioner cannot be sustained, therefore, was rightly rejected by the Hon’ble Single Judge. 26. 25. The reliance placed by the learned Advocate General on Rule 341(3)(iv) of Tamil Nadu Prison Rules 1983 to deny the benefit to the petitioner cannot be sustained, therefore, was rightly rejected by the Hon’ble Single Judge. 26. Similarly, the contention of the learned Advocate General that the Government had an intention to include the prisoners who were convicted under Section 498A also in G.O.Ms.No.1762 (Prison VI) dated 20.7.1987 in order to exclude prisoners guilty of offence under section 498A from getting the benefit of remission also deserves to be rejected as the claim of the convict cannot be defeated on the basis of intended rectification of Government order issued earlier. 27. The stand of the State deserves to be rejected, in view of the judgment of the Hon’ble Supreme Court in the case of State of Harayana Vs. Jagadish (A.I.R. 2010 SC 1690) wherein it had been laid down that the claim of the life convict has to be considered as per the policy in existence at the time of conviction. The relevant portion in the above judgment reads as follows: “43. The right of the respondent prisoner, therefore, to get his case considered on a par with such of his inmates, who were entitled to the benefit of the said policy, cannot be taken away by the policy dated 13-8-2008. This is evident from a bare perusal of the recitals contained in the policies prior to the year 2008, which are referable to Article 161 of the Constitution. The High Court, therefore, in our opinion, was absolutely justified in arriving at the conclusion that the case of the respondent was to be considered on the strength of the policy that was existing on the date of his conviction. The State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for premature release would be considered after serving the sentence, prescribed in the short-sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a “lifer” for premature release, he should be given benefit thereof. For the reasons stated, no ground is made out by the appellants, to interfere with the order passed by the Hon’ble Single Judge. 28. The contention of the learned Advocate General that the Court could not order the release of the convict merely deserves to be noticed having been raised, as the Hon’ble Single Judge has not directed release of the convict, but only ordered to consider the case of the convict for premature release under the Government order cited supra. 29. For the reasons stated, the writ appeal is dismissed. The judgment of the Hon’ble Single Judge is confirmed. No costs. 30. The State Government is directed to consider the case of the writ petitioner’s son for premature release within 30 days from the date of receipt of copy of this judgment.