Ker HC | Right to be heard cannot be claimed in cases of re-incarceration where initial order of release was without application of mind

Kerala High Court

Kerala High Court: V.G. Arun, J.,  dismissed the instant petition whereby the petitioner had challenged his re-incarceration contending violation of natural justice by authorities.

On 18-02-2011, the government ordered premature release of 209 prisoners who had completed imprisonment of 10 years (with remission) and above and in whose cases, favourable reports, either from the police or probation officer, had been received. The said order was challenged in Suo Motu v. State of Kerala, 2019 SCC OnLine Ker 335, before full Bench on the ground that the order was result of arbitrary exercise of power under Article 161 of the Constitution. The Court found out that power under Article 161 had been exercised without government applying its mind to the individual cases. Consequently, the impugned order was quashed and government was directed to examine the proposal for premature release of the 209 prisoners, afresh. Further, the Court directed government to consider the release of prisoners on two grounds namely, non-involvement in crime after release and favourable reports by police or probation officers.

Accordingly, a State Level Committee was constituted, which, after analysing each case, observed that among the 209 prisoners, 22 had expired, 27 had involved in criminal cases after release and the remaining 160 were not involved in any criminal activity and had lived with good conduct. Hence, the government issued an order directing 30 persons from among the 209 to be re-incarcerated, for completing the remaining period of their sentence.

The petitioner being one among the 30 ordered to be re-incarcerated was issued with summons from the trial court. Aggrieved by the order for his re-incarceration, the petitioner contended that government could not have ordered his re-incarceration without even affording an opportunity of hearing and the reason for re-incarceration being not discernible from the summon order, was indicative of absolute non-application of mind. It was further contended that,

Quashing of order for release by the Court did not absolve the government from complying with the fundamental principles of natural justice and fair play.

 The Bench observed the order of full Bench that in case of the Government failing to take a decision within six months, it would be deemed that there was no exercise of power under Article 161 in favour of the prisoners concerned and steps should be taken to re-incarcerate such prisoners for serving out the remainder of their sentence. The Bench stated,

All 209 prisoners were liable to be re-incarcerated, but, on humanitarian consideration, the Full Bench allowed the Government to consider the cases of prisoners who could be granted exemption from re-incarceration based on their exceptional conduct and favourable reports from all authorities.

Therefore, the consideration was to be made with respect to the prisoners who could be exempted and not about those who were to be re-incarcerated. Being so, the principle of audi alteram partem had no application in the case of petitioner. The petitioner got involved in two crimes after his release and did not satisfy the strict conditions imposed for being exempted from re-incarceration. Referring to the order of Full Bench, the Court emphasised it needs no reiteration that interim orders, unlike judgments, do not have any persuasive effect. [Ramesh K.S v. State of Kerala,  2021 SCC OnLine Ker 600, decided on 05-02-2021]


Kamini Sharma, Editorial Assistant has put this story together

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