Chief bench Nalini case govt new affidavit In view of the above, it is most humbly prayed that this Hon’ble High Court may be pleased to modify the order dated 17.06.2022 passed in W.P.No.7615 of 2022 by deleting the following observations; Paragraph No.11:

IN THE HIGH COURT OF JUDICATURE AT MADRAS

 

W.M.P.No.                   of 2022

 

In

 

W.P.No.7615 of 2022

 

  1. The Secretary to Government,

Home, Prohibition and Excise Department,

Secretariat, Chennai – 600 009.

 

  1. The Superintendent of Prison,

Special Prison for Women,

Vellore.                                       … Petitioners/Respondents

–Vs–

S.Nalini,

W/o.Sriharan @ Murugan,

Convict No.810,

Special Prison for Women,

Vellore.                                                   … Respondent/Petitioner

 

AFFIDAVIT FILED ON BEHALF OF THE PETITIONERS

I, D.Padmanabhan, S/o.V.Devanathan, aged about 54 years resident at No.12/2, UV Swaminathan Street, Krishna Nagar, Ullagaram, Chennai – 600 091 do hereby solemnly affirm and sincerely state as follows:-

  1. I respectfully submit that I am the Joint Secretary to Government, Home Department, Secretariat, Chennai – 600 009 and as such I am well conversant with the facts and circumstances of this case from the records available. The present affidavit is filed on behalf of the Additional Chief Secretary to Government, Home, Prohibition l and Excise Department, Secretariat, Chennai – 600 009.
  2. I respectfully submit that W.P.No.7615 of 2022 was filed by the respondent herein on the file of this Hon’ble High Court seeking following relief:-

“writ of declaration declaring that the failure of the Governor of Tamil Nadu to act in accordance with the advice of the Council of Ministers of the State of Tamil Nadu dated 9.9.2018 under Article 161 of the Constitution of India recommending release of the petitioner from prison is unconstitutional and consequently directing respondent No.1 to release the petitioner from prison immediately without the approval of the Governor of Tamil Nadu.

  1. I respectfully submit that the above Writ Petition came to be dismissed by this Hon’ble High Court vide a detailed order dated 17.06.2022.
  2. I respectfully submit that the present petition is filed seeking modification of the aforesaid order dated 17.06.2022 by deleting certain observations in paragraph Nos.11, 13 & 21, insofar as it relates to the observations of the petitioner’s contention that the Mercy Petition filed by the respondent herein was rightly referred by the Hon’ble Governor of Tamil Nadu to the Hon’ble President of India, since such a submission was not made on behalf of the petitioners herein and the same seems to have been inadvertently recorded in the said order.
  3. I respectfully submit that while it is the categorical contention of the petitioner herein that the present issue squarely false within the ambit of Article 161 of the Constitution of India and the same is in the exclusively domain of the State Government and therefore it is the Hon’ble Governor of Tamil Nadu who can exercise the power to remit the sentence of Life Imprisonment based on the resolution passed in the Cabinet Meeting held on 09.09.2018, it appears that certain observations regarding the contention of the petitioners herein have been inadvertently recorded to the effect that the reference made by the Hon’ble Governor of Tamil Nadu to the Hon’ble President of India is correct. The relevant portion of the said inadvertent observations are extracted below;-

Paragraph No.11:

He submits that the petitioner was not convicted only for the offence under Section 302 of the IPC, but also for other offences, as would be clear from the judgment of the Apex Court in the case of Nalini, supra, confirming the order of conviction and the sentence of death imposed on the accused. The order of the trial court so confirmed by the Apex Court shows that the petitioner is a convict for the offences under different provisions of law, which includes the laws where the executive power extends to the Union of India and, therefore, the matter has rightly been sent to the President of India, where it is pending consideration.

Paragraph No.13:

In the instant case, the decision of the Council of Ministers has not been authorised by the Governor of the State or the President by putting signature and thereby the State Government cannot release the petitioner and for that, the court should not pass an order unless it is so authorised by the President of India in this case.

Paragraph No.21

During the pendency of the writ petition, learned Advocate General informed that the Governor of the State has referred the matter to the President of India for the reason that the conviction and sentence imposed on the petitioner was not only for the offence under Section 302 IPC, but also in reference to other offences, indicated above. It is thus argued that the Governor has rightly sent the matter to the President of India, because it now falls within the purview of Article 72 of the Constitution of India.

  1. I respectfully submit that I am given to understand that no such submission to the above effect was made on behalf of the petitioners herein and the same has been recorded inadvertently.
  2. In fact the stand of the petitioners have been clearly specified in the Additional Counter Affidavit filed by the petitioner. The relevant portion has been extracted below for easy reference;

Para No.5 at Pg.4: In this connection, it is further submitted that when the recommendation of the State Cabinet made on 09.09.2018 for remitting the sentence of the writ petitioner had been pending before the office of the Hon’ble Governor of Tamil Nadu, the Writ Petition S.R.No.67881/2019 and W.P.No.14261/2019 filed by the Writ Petitioner relating to the same issue were dismissed by the Hon’ble High Court, Madras vide its order dated 18.07.2019 and 20.08.2019. At the same time, it is also well settled that though the aid and advice of the State Cabinet under Article 161 of the Constitution of India made on 09.09.2018 is undoubtedly binding on the Hon’ble Governor of Tamil Nadu as per the law laid down in Maru Ram V.Union of India, (1981) 1 SCC 107, the release of the writ petitioner could happen only after the Government issue an order to this effect upon approval of the Governor thereon.

Para No.6(b) at Pg.6: That, in view of the above, obviously, in so far as the Writ Petitioner is concerned, the Hon’ble Supreme Court of India has held in the above case that the offence for which the Writ Petitioner has been undergoing the life sentence in prison now is directly related to “public order” which is in the exclusive domain of the State Government and therefore, it must be deemed that the executive power of the State extends to such offence i.e. the offence under 302 of IPC simpliciter under Article 161 of the Constitution of India and therefore, it is the Governor of the State of Tamil Nadu who can exercise the power to remit the sentence of Life Imprisonment and following this dictum only, the State Government had passed a resolution in the Cabinet Meeting held on 09.09.2018 recommending to the Hon’ble Governor of Tamil Nadu for remission of the Life sentence of the petitioner including six other life convict prisoners involved in the same offence considering their representation submitted under Article 161 of the Constitution of India.

Para No.6(d) at Pg.8: That in view of the Constitution Bench judgment of this Hon’ble Court, in the matter of Union Government Vs.Sriharan @ Murugan reported in 2016(7) SCC I and the Judgment of this Hon’ble Court in State of Haryana & others Vs.Rajkumar @ Bittu, reported in 2021(9) scale 33, it is respectfully submitted that the State Government is the competent authority to take decision on the petition filed by this Writ Petitioner under Article 161 of Constitution of India and the decision of the State Cabinet dated 09.09.2018 thereon is final and it can be exercised by the Hon’ble Governor of Tamil Nadu as per the aid and advice of the State Cabinet.”

  1. I respectfully submit that since the aforesaid inadvertent observations recorded in the said order does not reflect the correct contentions put forth on behalf of the petitioners before this Hon’ble Court, the same, in the interest of justice, is prayed to be removed/deleted.

In view of the above, it is most humbly prayed that this Hon’ble High Court may be pleased to modify the order dated 17.06.2022 passed in W.P.No.7615 of 2022 by deleting the following observations;

Paragraph No.11:

He submits that the petitioner was not convicted only for the offence under Section 302 of the IPC, but also for other offences, as would be clear from the judgment of the Apex Court in the case of Nalini, supra, confirming the order of conviction and the sentence of death imposed on the accused. The order of the trial court so confirmed by the Apex Court shows that the petitioner is a convict for the offences under different provisions of law, which includes the laws where the executive power extends to the Union of India and, therefore, the matter has rightly been sent to the President of India, where it is pending consideration.

“Paragraph No.13:

In the instant case, the decision of the Council of Ministers has not been authorised by the Governor of the State or the President by putting signature and thereby the State Government cannot release the petitioner and for that, the court should not pass an order unless it is so authorised by the President of India in this case.

Paragraph No.21

During the pendency of the writ petition, learned Advocate General informed that the Governor of the State has referred the matter to the President of India for the reason that the conviction and sentence imposed on the petitioner was not only for the offence under Section 302 IPC, but also in reference to other offences, indicated above. It is thus argued that the Governor has rightly sent the matter to the President of India, because it now falls within the purview of Article 72 of the Constitution of India.”

and thus render justice.

 

 

Solemnly affirmed at Madras                         ()

this the 20th day of  June 2022         ()

and signed his name in my presence        ()            BEFORE ME

 

 

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