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2017 DIGILAW 2140 (MAD)

Saroja v. State of Tamil Nadu

2017-07-20

A.SELVAM, P.KALAIYARASAN

body2017
ORDER : P. KALAIYARASAN, J. 1. This Habeas Corpus Petition has been filed under Article 226 of the Constitution of India by the wife of the detenu seeking direction to the respondents to produce the detenu, life convict and set him at liberty on premature release. 2. It is averred in the affidavit that the detenu Kora Nagaraj who has been sentenced to life for an offence under Section 302 IPC is the husband of the petitioner. He has been in jail for over 14 years. He is suffering from diabetics and his left leg has been amputated and right leg is also about to be amputated. His eye sight is also bad. His both kidneys were damaged and he is under dialysis in Government Stanley Medical College and Hospital, Chennai. On human consideration, it is just and necessary to release him on premature release forthwith. Therefore, the petitioner has come forward with this petition. 3. The second respondent in his counter contends that the detenu is a life convict for the offence under Section 302 IPC. As per the advice of the prison medical officer, the detenu was sent to Vellore Government Medical College and Hospital for emergency treatment on 02.06.2017 and admitted as inpatient. He was then shifted to Government Stanley Medical College and Hospital on 04.06.2017 and after treatment as inpatient he was discharged on 26.06.2017 with an advice to attend Urology and Nephrology OP on 30.06.2017. The detenu attended the OP. Again he was sent to the Government Stanley Medical College and Hospital on 06.07.2017 and he is taking treatment as inpatient. The Professor and Head of the Department of Nephrology, Government Stanley Medical College and Hospital, Chennai, in his report dated 26.06.2017 has stated the health condition of the detenu as follows : "This 52 year old male, case of Type II DM was admitted with abdominal pain and pneumaturia for 2-3 months and oliguria for 2 weeks. Evaluation showed renal failure. Imaging revealed Left Emphysematous Pyelonephritis. Patient was inducted on Hemodialysis for the same. On 08.06.2017, patient underwent left DJ stenting. Post procedure patient developed hypotension. Patient was kept in intensive care unit and supported with Antibiotics / Inotropes / Blood products. His general condition and renal failure is improving gradually. He is currently on parenteral antibiotics. Evaluation showed renal failure. Imaging revealed Left Emphysematous Pyelonephritis. Patient was inducted on Hemodialysis for the same. On 08.06.2017, patient underwent left DJ stenting. Post procedure patient developed hypotension. Patient was kept in intensive care unit and supported with Antibiotics / Inotropes / Blood products. His general condition and renal failure is improving gradually. He is currently on parenteral antibiotics. He requires inpatient care for minimum duration of 2 weeks." As per the Tamil Nadu Prison Manual, Vol. II Rule 633, prisoner in danger of death may be released. But as per the medical report, health condition and renal failure of the detenu is improving gradually and therefore, the request of the petitioner to release her husband prematurely on medical grounds is not necessary. Therefore, the petition is to be dismissed. 4. The petitioner had already filed writ petition in W.P.No.22397 of 2012 for premature release of the same detenu and the learned single Judge of this Court by order, dated 08.08.2014 disposed of the writ petition with a direction to give treatment to the detenu in a private hospital as requested by the petitioner at her cost and left the case of the petitioner for release of the detenu prematurely for consideration of the authorities concerned. 5. It is an admitted case that the detenu has been suffering from renal failure and he is under hemo-dialysis. Already one leg has been amputated and he requires continuous effective treatment. No doubt Tamil Nadu Prison Manual permits the premature release if the prisoner is in danger of death from sickness. Rule No.633 of Tamil Nadu Prison Manual, Vol.II reads thus : "Release of Prisoners in danger of death : If the medical officer considers that any prisoners is in danger of death from sickness not due to infectious disease and that there is no hope of recovery within or without the prison." 6. The Constitutional Bench of the Hon'ble Supreme Court in Union of India v. V.Sriharan reported in (2016) 7 SCC 1 has held as follows : "Life imprisonment in terms of Section 53 read with 45 IPC means the entirety of the life of the prisoner unless it is curtailed by remissions validly granted under Section 432 CrPC or Articles 72 or 161 of the Constitution. A life convict only has the right to claim remission, etc., as provided under Articles 72 and 161 of the Constitution to be exercisable by the President and the Governor of the State or under Section 432 CrPC. ... ... ... The power or remission always vests with the State executive and the Supreme Court at best can only give a direction to consider any claim for remission and cannot grant any remission and provide for premature release. It has time and again been reiterated that the power of commutation exclusively rest with the appropriate Government. ... ... ... There is every scope and ambit for the appropriate Government to consider and grant remission under Sections 432 and 433 CrPC even if such consideration was earlier made and the power exercised under Article 72 by the President and under Article 161 by the Governor. As far as the implication of Article 32 of the Constitution is concerned, it is not for the Court to exercise the power under Sections 432 and 433 CrPC and it is always left to be decided by the appropriate Government, even if someone approaches the Supreme Court under Article 32 of the Constitution." Therefore, as per the decision of the Constitutional Bench of the Hon'ble Supreme Court, the claim for remission and for premature release has to be considered only by the Government. 7. Considering the fact that the detenu is suffering from renal failure and though he was sent back to prison after treating him as inpatient in Government Stanley Medical College & Hospital from 04.06.2017 to 26.06.2017, he was again brought to the same Government Stanley Medical College and Hospital and readmitted on 06.07.2017, this Court directs the petitioner to give representation to the first respondent. It is left open to the Government to consider the representation of the petitioner on merits. The authorities are directed to give effective treatment to the detenu for his ailments. With the above observation and direction, this Habeas Corpus Petition is disposed of.