Case Title: Dr Esther MBBS DGO v State of Tamil Nadu and Ors

On Tuesday, March 15th, 2022, the Madras High Court rejected to review the case of John
David, a condemned prisoner in the 1996 infamous murder of Pon Navarasu, for premature
release.

In this instant case where a writ petition seeks to quash G.O. (D) No.372, Home (Prison-IV)
Department, dated 22.07.2019, in which the State Level Committee's recommendation for the
early release of John David (Life Convict Prisoner No.4897), the petitioner's son, was denied,
as well as a mandamus to the respondents to release John David in accordance with G.O.
(Ms.) No.64, Home (Prison)- Department dated 01.02.2018 (for short “G.O. 64”).

John David was charged with the alleged murder of one Navarasu, a first-year MBBS student
at Annamalai University and the son of a retired Vice Chancellor of Madras University, in
S.C. No.63 of 1997 before the Principal Sessions Court, Cuddalore (for short, "the trial
Court"). He was eventually found guilty of the offences under Sections 364, 342, 302 and
201 IPC by the trial Court in a decision and order dated 11.03.1998, and sentenced to various
lengths of imprisonment, the maximum being life imprisonment for the offences under
Sections 364 and 302 IPC.

On 05.10.2001, the Madras High Court allowed his appeal in Crl.A. No.267 of 1998, and on
20.04.2011, the Supreme Court, in Crl.A.No.384 of 2002, reversed the acquittal order of the
Madras High Court and restored the conviction and sentence imposed on John David by the
trial Court, pursuant to which John David is now serving his sentence. Because the authorities
did not evaluate John David's case for premature release by extending the benefit under G.O.
64, his mother, the petitioner herein, filed H.C.P. No.525 of 2019 requesting her son's
premature release.

During the pendency of the said habeas corpus petition, the State Government issued G.O.(D)
No.372, Home (Prison-IV) Department, dated 22.07.2019, rejecting the State Level
Committee's recommendation for John David's premature release, to which the present writ
petition for relief was filed, as stated in the opening paragraph of this order. In response to the
impugned order, the State filed a reply affidavit dated 25.08.2021 and an additional counter
affidavit dated 31.01.2022.

Moving on, Mr. A. Ramesh, learned Senior Counsel appearing for the petitioner, first brought
the petitioner's track record to this Court's attention, claiming that after John David was
acquitted by the High Court, he did not engage in any criminal activity, and that after the
Supreme Court's judgement reversing the High Court's acquittal and confirming the
judgement and order of conviction and sentence passed by the trial Court, he surrendered and
his case was dismissed. He presented to the Court the information of John David's jail
educational qualifications as well as the behaviour certificate issued by the Superintendent of
Prisons, Central Prison, on December 29, 2017.
Nevertheless, In this matter, the Government used the impugned order to exercise its rights,
and it is up to this Court to determine whether the authorities used their powers in accordance
with G.O. 64.The Superintendent of Prisons, Central Prison, issued a behaviour certificate on
December 29, 2017, the court observed.

According to a two Judge bench of Justices P.N. Prakash and A.A. Nakkiran. The State
Government and the Governor are not bound by the recommendation made by the jail
officials in favour of John David, According to the court, the Governor alone has the
authority to approve a prisoner's premature release under Article 161 of the Constitution,
based on advice from the State Cabinet.

During the pendency of the said habeas corpus petition, the Division Bench noted the
following: "While refusing to entertain the plea made by Dr Esther, mother of the convicted
prisoner, against the G.O(D) 372 depriving her son of the benefit of G.0. 64 in
commemoration of Dr M.G. Ramachandran's birth centennial celebrations, the Division
Bench noted the following:

“The State Level Committee which is composed of the Inspector General of Prisons and the
Deputy Inspector General of Prisons (Headquarters) can only recommend a case to the State
Government and cannot exercise the power under Article 161 of the Constitution of India.
The Governor of the State would exercise the power under Article 161, ibid., on the
recommendation of the Cabinet. Thus, the Cabinet has the authority to accept or reject the
recommendation of the State Level Committee and accordingly, give their advice to the
Governor. In the instant case, it is obvious that the Governor has chosen to reject the
recommendation of the State Level Committee qua premature release of John David, by the
impugned Government Order.”

The court further stated that, unlike the Supreme Court, it cannot interfere with the
Government Order under Article 226 because it lacks any powers under Article 142, and that
the release of detainees in Nilofer Shah was done on a case-by-case basis by the Supreme
Court. The court also cited Epuru Sudhakar & Anr v. State of Andhra Pradesh & Ors. [(2006
8 SCC 161)] to emphasise that the President and Governor are the

"sole judges of the sufficiency of facts and the appropriateness of awarding pardons and
reprieves."

When the petitioner's lawyer claimed that the government had released people who had
committed far more serious crimes prematurely, the judges pointed out that there can't be
'negative equality.

The apex court held in R. Muthukumar and Others vs. Chairman & Managing Director,
TANGEDCO & Others, 2022 LiveLaw SC 140 that if a benefit or advantage has been
conferred on one or a group of people without legal basis or justification, that benefit or
advantage cannot multiply, or be relied upon as a principle of parity or equality.
As a result, just because the government made a mistake in releasing the defendants in the
well-known Dharmapuri bus burning case and the Melavalavu case, the same mistake cannot
be repeated, therefore John David cannot be granted relief." the court stated.

The Dharmapuri Bus Burning took place in 2000, shortly after previous Chief Minister J.
Jayalalithaa was found guilty in the Pleasant Stay Hotel case in Kodaikanal. Three students
from the Tamil Nadu Agricultural University in Coimbatore died as a result of the burns, and
three AIADMK men were sentenced to death as a result of the trial.

Their sentences were mitigated when they filed a review petition with the Supreme Court,
and the state government released them early in 2018. A Panchayat President and six Dalit
men were massacred in the Melavalavu massacre by upper caste people who were enraged
over the election of a Scheduled Caste member as Panchayat President.

.As mentioned, the accused's act was not only to murder the deceased, but also to terrorise
the entire Scheduled Caste community into not participating in Panchayat elections,"

the Madras High Court said in affirming the accused's conviction.

In 2019, the state administration allowed thirteen of these offenders to be released early.

In Satish that is Sabbe vs. The State of Uttar Pradesh [2020], the court held that pre-mature
release was permitted because the executive authorities failed to comply with Section 2 of the
Uttar Pradesh Prisoners Release on Probation Act, 1938, rather than because remission could
be claimed as a matter of right.

The court also clarified that the Madras High Court Division Bench Judgment in K.Rajasekar
v. State and Others (2022) was based on the fact that a couple had murdered a child, and
because no one knew who did it, the husband alone could be granted remission while the wife
was denied because she had committed a heinous crime.

Therefore, after considering the provided facts and cases, the court accepted that the
Superintendent of Police (Prisons) conduct certificate indicates that John David has turned a
new leaf and has demonstrated exceptional behaviour while incarcerated. However, that
alone would not qualify him for early release under the plan, and the Governor's decision will
be final, the court concluded.