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The Bench of Justices Abdul Nazeer and Deepak Gupta on Friday said that a habeas corpus petition will not lie where a life prisoner is challenging his ineligibility to apply for premature release.

The apex court was posed with the question — whether a writ court can be approached to seek premature release of a prisoner.

In Madras High Court, a petition was filed under Article 226 of the Constitution of India, to issue a Writ of Habeas Corpus, directing the respondents to release the petitioner’s son/the detenue H.Abuthahir, confined at Coimbatore Central Prison (Life Convict No.4346) from the prison and directing the respondents to treat the petitioner as an eligible life convict prisoner for premature release by G.O.(Ms).No.64, Home (Prison IV) Department, dated 01.02.2018. The Writ Petition was allowed by the High Court as refusal of remission on the ground of apprehension of harm to the prisoner outside jail was held unreasonable. In such cases, high court recommended that prisoners be released but in doing so be informed of the possibility of harm to them.

This judgement came to be challenged by the Home Department in the Supreme Court.

Counsel for the prisoner stated that it is open to the court to issue any writ to an aggrieved party in such a case. If there is discrimination then liberty of detinue is deprived and is violation of Article 14 & Article 21 of Constitution.

Justice Deepak Gupta said, “Grant of remission is a privilege, it is not a right,” thus indicating that a prisoner cannot demand premature release as a matter of right. It depends upon the prison board to decide who gets remission and who doesn’t.

The Court was also posed with the issue whether any State without the consent of the President of India can form a scheme which is in variation or violative of the provision of Section 433A of the Code of Criminal Procedure and provide for release of prisoners who have been directed to undergo life imprisonment in cases where the offence is also punishable by death prior to their serving 14 years of incarceration.

Section 433A provides that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.

Justice Nazeer said that though they have filed habeas corpus but it is not treated as habeas corpus but treated as normal petition. V. Giri, Sr. Advocate, appearing for the Home Secretary, Prison while summing up his arguments said that detention is legal and the court cannot order a release in case of lawful detention, as it is an executive function, not a judicial one.

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