Women life convicts under offences punishable by death must serve 14 years of actual imprisonment without remission before premature-release consideration, Madras HC rules

The petitioner, a woman life convict, was convicted by the I Additional District and Sessions Judge, Cuddalore, under Section 302 IPC and sentenced to life imprisonment with fine; her conviction under Section 392 read with Section 397 IPC was subsequently set aside by the High Court in appeal.

She sought premature release under G.O.(Ms.) No.488, Home (Prison-IV) Department, dated 15.11.2021, and Rule 348 of the Tamil Nadu Prison Rules, 2024.

Although she had not completed ten years of actual imprisonment as on 15.09.2021, she claimed that she had subsequently completed over thirteen years of actual imprisonment and sixteen years including remission.

The Superintendent of Prison informed her that her case would be considered only after completion of fourteen years of actual imprisonment.

The respondents maintained that she was governed by Section 475 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), because Section 302 IPC is an offence for which death is also a prescribed punishment, and that fourteen years must therefore be completed without remission.

Whether the petitioner was entitled to consideration for premature release under G.O.(Ms.) No.488 dated 15.11.2021, despite not having completed ten years of actual imprisonment as on 15.09.2021?

Whether, under Rule 348 of the Tamil Nadu Prison Rules, 2024, the petitioner’s remission could be counted towards the fourteen-year requirement prescribed under Section 475 of the BNSS?

Whether the petitioner could claim premature release as a matter of right, or whether the Court could direct her release before completion of fourteen years of actual imprisonment?

Section 475 of the BNSS, 2023, which is pari materia with Section 433-A of the Code of Criminal Procedure, restricts remission or commutation where life imprisonment is imposed for an offence punishable with death, by prohibiting release unless the prisoner has served at least fourteen years of imprisonment.

Rule 348(1) of the Tamil Nadu Prison Rules, 2024 permits consideration of women life convicts after eight years’ imprisonment including remission, but expressly excludes prisoners covered by Section 475 of the BNSS, whose cases may be considered only after fourteen years of actual imprisonment.

The Court relied on Ashok Kumar alias Golu v. Union of India, AIR 1991 SC 1792 : (1991) 3 SCC 498, holding that Section 433-A requires fourteen years of actual incarceration without remission.

It also relied on State v. H. Nilofer Nisha, (2020) 14 SCC 161, for the principle that remission is a discretionary privilege and not a vested right, and Rajan v. State of Tamil Nadu, (2019) 14 SCC 114, for the principle that premature release is not a matter of privilege and that the competent Government must consider the relevant factors under the statutory scheme.

G.O.(Ms.) No.488 was treated as a one-time scheme applicable only to life convicts who satisfied its eligibility requirements, including ten years of actual imprisonment, as on 15.09.2021.

The Court held that the petitioner could not claim the benefit of G.O.(Ms.) No.488 because she had admittedly completed only 8 years, 8 months and 7 days of actual imprisonment as on 15.09.2021, whereas the Government Order required completion of ten years of actual imprisonment on that date.

Although Rule 348 generally permits women life convicts to be considered after eight years including remission, that provision expressly excludes prisoners governed by Section 475 of the BNSS.

Since the petitioner was convicted under Section 302 IPC, an offence for which death is one of the prescribed punishments, she fell within Section 475.

Applying Ashok Kumar, the Court concluded that the fourteen-year requirement meant fourteen years of actual imprisonment and could not be satisfied by adding remission.

The Court further held that eligibility for consideration does not create an automatic right to release, as premature release remains within the discretion of the competent Government.

The Court held that the petitioner was not entitled to premature release under G.O.(Ms.) No.488 and could not seek consideration under Rule 348 by counting remission towards the fourteen-year requirement under Section 475 of the BNSS.

However, the Court directed that if she completes fourteen years of actual imprisonment without remission, the respondents shall consider her case for premature release on its own merits and in accordance with law.

No costs were awarded, and the connected miscellaneous petitions were closed.