Jail convict case Mr.Justice A.D.JAGADISH CHANDIRA and The Honble Mr.Justice K. RAJASEKARW. P.(MD) No.9491 of 2024andW.M.P.(MD) No.8612 of 2024T.RAMALAKSHMI … PETITIONER Vs1 THE STATE REPRESENTED BY ITSPRINCIPAL SECRETARY TO GOVERNMENT OF TAMIL NADU,HOME DEPARTMENT,FORT ST.GEORGE,CHENNAI 600 0092 THE DEPUTY INSPECTOR GENERAL OF PRISON,MADURAI RANGE,MADURAI3 THE SUPERINTENDENT OF POLICECENTRAL PRISON,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Special Original Jurisdiction )
Thursday, the Eleventh day of July Two Thousand and Twenty Four
PRESENT
The Honble Mr.Justice A.D.JAGADISH CHANDIRA and The Honble Mr.Justice K. RAJASEKAR
W. P.(MD) No.9491 of 2024and
W.M.P.(MD) No.8612 of 2024
T.RAMALAKSHMI … PETITIONER Vs
1 THE STATE REPRESENTED BY ITS
PRINCIPAL SECRETARY TO GOVERNMENT OF TAMIL NADU,
HOME DEPARTMENT,
FORT ST.GEORGE,
CHENNAI 600 009
2 THE DEPUTY INSPECTOR GENERAL OF PRISON,
MADURAI RANGE,
MADURAI
3 THE SUPERINTENDENT OF POLICE
CENTRAL PRISON,
PALAYAMKOTTAI … RESPONDENTS
Writ Petition filed praying that in the circumstances stated therein and in the affidavit filed therewith the High Court may be pleased to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned order bearing no. 9530/Tha.Hu/2/2024 dated 06.04.2024 passed by the 2nd respondent and quash the same and consecutively direct the respondents to grant ordinary leave for 30 days to the detenu, Thirukumaran Son of Thangaraj (L.C.T 4988) who is now under incarceration at Central Prison, Palayamkottai.
Prayer in WMP(MD). 8612/ 2024 :
To dispense with the production of certified copy of impugned order bearing no. 9530/Tha.Hu/2/2024 dated 06.04.2024 passed by the 2nd respondent till the disposal of the writ petition
ORDER : This Writ Petition coming up for orders on this day, upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr.D.SELVAM, Advocate for the petitioner and of Mr.A.THIRUVADI KUMAR, Additional Public Prosecutor on behalf of the Respondents, the court made the following order:-
[Order of the Court was made by A.D.JAGADISH CHANDIRA, J.]
The above writ petition has been filed by the dependant/relative of the
convict prisoner, challenging the rejection of representation filed on their behalf seeking ordinary leave for the prisoners pending Criminal Appeal.
- We find that even in the cases of dire necessity of Emergency Leave, the
prisoners are constrained to approach the court for relief either by suspension of sentence or by way of writ petition before the Division Bench. Many a time, getting an order from the court becomes a daunting task due to various reasons including the intervening holidays and in such a situation, the prisoner will be deprived of her reasonable opportunity of getting leave. - The matter relates to grant of ordinary leave to the convict prisoners,
whose appeals are pending before either this court or the Apex Court, on medical grounds involving their health condition or that of their dependants, whom, the prisoners need to take immediate care or on some other exigencies. - Citing the decisions of different Division Benches of this court in
(i) Order in W.P.No.11939 of 2022 dated 29.8.2022
(R.Chellammal vs. State)
(ii) Order in W.P.No.2761 of 2023 dated 10.2.2023 (Shakila vs. State)
(iii) Order in W.P.No.28162 of 2023 dated 27.9.2023 (S.Ishwariya
vs. State)
(iv) Order in W.P.No.22285 of 2023 dated 17.10.2023 (Anees
Unnissha vs. Secretary to Government)
(v) Order in W.P.No.35766 of 2023 dated 19.1.2024
(M.Muruganandam vs. Secretary to Government)
(vi) Order in W.P.No.27137 of 2023 dated 15.9.2023 (Selvam vs.
State)
(vii) Order in W.P.(MD) No.21785 of 2023 dated 30.10.2023 (Ambikavathi vs. DIG of Police)
(viii) Order in W.P.(MD) No.28831 of 2023 dated 7.12.2023
(Pakiyalakshmi vs. State),
it was submitted on behalf of the petitioners the similarly placed prisoners had been granted ordinary leave and thereby, the present petitioners also may be granted the
relief. - Per contra, on behalf of the State, the grant of leave is being opposed on
two grounds, one being that the detenu has not completed the requisite period of imprisonment under the Rules to avail the benefit of leave and the other being that appeal is pending before either this court or the Apex Court. Apart from that, it has been brought to our notice by Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor appearing for the respondents that there exists some distinguished and conflicting views by different Division Benches of this court on the the same issue. In this regard, he has relied on the decisions in
(i) Order in W.P.No.10265 of 2021 dated 18.2.2022 (L.Wasib
Khan vs. State)
(ii) Order in W.P.(MD) No.13918 of 2023 (K.Rajalakshmi vs.
Principal Secretary, Government and others)
(iii) Order in W.P.(MD) No.6398 of 2023 (Latha vs. State)
(iv) Order in W.P.(MD) No.3625 of 2024 (S.Subha vs. State)
(v) Order in W.P.(MD) No.3614 of 2024 (Pandiarajan @
Pandiaraja vs. State)
(vi) Saleema vs. State (2021 (1) MWN (Cr.) 198 (DB)
(vii) M.Jeyammal vs. State (CDJ 2022 MHC 4656). - We have heard the learned counsel appearing for the respective writ
petitioners and Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor appearing for the respondents and perused the materials available on record and also the decisions of various Division Benches of this court on the issue. - It cannot be denied that each case stands on its own footing, of course,
on facts, but, when it comes to legal principle, there cannot be any disparity. What we find is almost in all the cases, as we have observed supra, some exigency is involved for seeking the ordinary leave. Criminals are made, not born. What is behind them is the compelling circumstance. The scope of their incarceration can only be their reformation and it cannot be for delivering more complicated and aggressive personality to the society by subjecting them into frustration in a very needy
situation. - We feel that keeping the above concept in mind, some of the Division
Benches have granted the ordinary leave to the prisoners. In one of such cases viz., in Chellammal’s case, a Division Bench of this court, in which one of us is a party, having taken a view that Rule 20(vii) of the TNSS Rules 1982 will have to be looked into in a harmonious way, which specifically contemplates a provision “any other extraordinary reasons” in conjunction with Rule 40 of the said Rules as it empowers the Government to consider and grant exemption under extraordinary circumstances and such powers cannot be curtailed. - Contrary to the above, some other Division Benches had delivered a
conflicting views on the issue.
(i) In Wasib Khan’s case supra, the Division Bench, relying on the decision of the Constitution Bench of the Supreme Court in K.M.Nanavati vs. State of Bombay [AIR 1961 SC 112] and the decision in K.Rajamanickam and Others vs. State [2015 (3) MWN (Cr.) 379 (DB)] and the observation made by the Apex Court during the hearing of the case viz., Manokaran vs. State of Tamil Nadu [Crl.A. No.866 of 2000], declined to grant leave to the prisoner.
(ii) Clarifying that the cases of K.M.Nanavathi’, K.Rajamanickam and Wasib Khan deal with exercise of Executive Power alone when judiciary has seized of an appeal as Executive functioning in the same field at the same time will lead to possibility of conflict of a jurisdiction and also holding that when Rule 40 of TNSS Rules itself has an in built provision and provides ample and adequate powers to
the Executive to exempt any one from the provisions of the Rules, the said Rules are not absolute and cannot come in the way or become an impediment in judiciary exercising its powers to grant leave, a Division Bench has granted ordinary leave to the prisoner in Shakila’s case.
(iii) Following the cases of K.M.Nanavathi’, K.Rajamanickam and Wasib Khan, another Division Bench in the case of K.Rajalakshmi, has declined to grant parole/leave to the prisoner and holding further that the appeal by the prisoner before the Apex Court is pending and thus, exercise of power under Article 226 of the Constitution to grant the relief sought for would be transgressing the jurisdiction of the
Apex Court. The said Bench, taking cue from the decision of a Full Bench in The State, represented by the Home Secretary v. Yesu reported in 2011 (5) CTC 351, had also observed that Rule 40 of TNSS Rules, in the opinion of the Full Bench, can be exercised in the negative sense and thus, the Division Bench, which dealt with the case of Shakila, had taken a view contrary to the decision of the Full Bench.
(iv) Such being the view taken by a Division Bench to decline to grant parole/leave to the prisoner, another Division Bench in Latha’s case has granted the relief to the prisoner clarifying certain aspects. We feel, it would be apt to extract the relevant portion of the order for ready reference:-
“9. However, the facts of the case in Wasib Khan
originates from the rejection of an application of the prisoner, who sought for grant of ordinary leave under the provisions of the Tamil Nadu Suspension of Sentence Rules, 1982. Wasib Khan did not seek for suspension of sentence in the said case and therefore, the ratio decidendi in K.M.Nanavati will have no application to the facts of Wasib Khan’s case. On the other hand, the claim for ordinary leave by Wasib Khan requires to be dealt with in accordance with the provisions of the 1982 Rules only. - At the outset, we intend to point out that the nomenclature or title of the Rules appears to be a misnomer. Though it is termed to be Suspension of Sentence Rules, the rules when considered and interpreted in its entirety, it neither provides for, nor prescribes the eligibility criteria for a prisoner to seek for “suspension of sentence” under this rule. On the other hand, 1982 Rules has been formulated for grant of emergency leave and ordinary leave only. For the purpose of these leave, the eligibility conditions, the maximum period for which the leave can be granted and the conditions on which the leave application should be presented and dealt with, are prescribed therein.”
After extracting the exact orders viz., 5 orders of the Apex Court in the well relied case of Manokaran (Crl.A.866 of 2000), from the official website of the Apex Court, the Bench had enlightened the issue with the sequence of orders and the background for passing of such orders by the Apex Court, viz., arbitrary grant of parole by the Government while his bail application was rejected. The relevant portion of the order passed by the Division Bench in this regard is extracted as under: “19. The sequence of these orders, as found above, are to the effect that on 30.04.2001, the bail application filed by Manokaran, pending the Criminal Appeal No.866 of 2000, was rejected. On 16.07.2002, there was no appearance for Manokaran pursuant to which an opportunity was given by adjourning the appeal by four weeks. On
13.08.2002, the Hon’ble Supreme Court had recorded the appellant’s
counsel’s representation that Manokaran was granted “parole” by the Government. It was further recorded therein that the Registry had reported that the appellant was served with a notice for appearance on 10th August, 2002 and that his appeal was already rejected on 30.04.2001 and since then, he has been lodged in jail. In this background, the Government counsel was called upon to obtain instructions. On 24.09.2002, the Joint Secretary to Government, Home Department, Chennai, who had affirmed the affidavit, was directed to be present before the Hon’ble Supreme Court on 01.10.2002 and on 01.10.2002, the appearance of the Joint Secretary and his regrets were recorded. While recording, the assurance of the Joint Secretary that the State Government, in future, would act strictly according to the requirements of the statute and not de hors and his statement that the question of continuity of there being any practice being followed henceforth would not arise and the same has been discarded by the State Government, were also recorded. - Apart from these orders, there are no other orders passed asalleged in the official memorandum of the Additional Director
General of Prisons, dated 21.10.2002. We are confounded with the recitals in the office memorandum allegedly recording the order of the Hon’ble Supreme Court that in future no such short time release should be made by the competent authority without informing the Court in which the prisoner’s appeal is pending and that this order should be scrupulously followed in future. - It is no doubt true that the Hon’ble Supreme Court in itsorder dated 01.10.2002, had recorded the statement of the Joint Secretary to Government, Home Department and his regrets, as well as his undertaking that the State Government would act strictly according to the requirements of the statute and not de hors. There is no reference in the orders of the Hon’ble Supreme Court with regard to grant of ordinary or emergency leave. Neither is there a reference touching upon “suspension of sentence”. On the other hand, in the order dated 13.08.2002, the appellant having been granted “parole” alone has been recorded. If that be so, we are unable to appreciate as to how the official memorandum can make a reference to statements that have not been recorded in Criminal Appeal No.866 of 2000, as alleged by them in the recital to the memorandum. Incidentally, it is in the light of these fallacious recitals, had the Additional Director General of Prisons directed the Superintendent/Deputy Inspector General of Prisons to desist from releasing any prisoner on emergency or ordinary leave, when his appeal is pending before the appropriate Court, without prior permission of the Court.
- In our view, the official memorandum itself has not onlymisconstrued the orders of the Hon’ble Supreme Court in Criminal Appeal No.866 of 2000, but is also against the object and purpose of the 1982 Rules, which prescribes the eligibility conditions and procedure for grant of emergency and ordinary leave.”
……. …… ……. - When Manokaran’s case had not dealt with a prisoner beinggranted ordinary leave or emergency leave, but rather being released on parole and the undertaking given by the State Government before the Hon’ble Supreme Court was only to the effect that the Government would henceforth act strictly according to the requirements of the statute and not de hors, we are of the view that such an undertaking before the Hon’ble Supreme Court in Manokaran’s case will not be an impediment for their consideration of an application seeking for “emergency or ordinary leave”
With regard to the impediment said to have been caused by Rule 35 the
Bench has held as under:- - The learned Additional Public Prosecutor placed reliance on Rule35 of the Suspension of Sentence Rules and submitted that when an appeal is pending before the Hon’ble Supreme Court, leave cannot be granted. Rule 35 of the 1982 Rules reads as follows:
“35. Pending Cases.- No prisoner on whom a case is pending trial shall be granted leave.” - The term used in Rule 35 is ‘pending trial’ and not pendingappeal. The object behind prohibiting a prisoner to be released on leave when a case is pending trial is to ensure his presence before the competent trial Court during the time of trial. Rule 832 of the Tamil Nadu Prison Rules casts a duty and responsibility on the prison authorities to produce a prisoner before the Court at the time of trial. We are unable to comprehend as to how the term ‘pending trial’ can be equated to that of an appeal, more particularly when it is not a statutory appeal under the criminal code.
The Bench had interpreted the applicability of Rule 40 also as under:- - Rule 40 of the 1982 Rules reads as follows:
“40. Power to exempt: The Government may exempt any
prisoner from all or any of the provisions of these rules.”
There is no reference to any negative power in Rule 40, nor does
Yesu’s case indicate of exercise of negative powers by the Government under Rule 40. The 1982 Rules is a beneficial piece of legislation and every Rule thereunder, when confronted with interpretation, must be done on a liberal approach.
Ultimately, the Bench has observed as under:-
……. it would be seen that the object of the Suspension of Sentence Rules is to grant the concession to a prisoner to avail emergency or ordinary leave. It is no doubt true that Government’s power under Rule 40 is a discretionary one and the prisoner cannot as a matter of right claim for grant of leave. However, when the object of the entire rule is to make certain classes of prisoners eligible for availing emergency or ordinary leave, Rule 40 requires to be interpreted in a liberal manner to achieve the object of the rules, in accordance with the law laid down by the Hon’ble Supreme Court as aforesaid. - There may be instances where a prisoner would have exhausted the maximum emergency leave in a year and still require grant of emergency leave on any of the grounds referred to in Rule 6 like serious illness of father, mother, wife, husband, son, daughter, etc., or to attend the wedding of his immediate family members or to a female pregnant prisoner for having delivery outside the prison. In such circumstances, Rule 40 cannot be interpreted in a negative sense, which would be totally against the object of the framing of the Rules. As held by the Hon’ble Supreme Court, a liberal interpretation should be given to Rule 40 so as to enable the Government to exempt any of its provisions or all of its provisions to the benefit of a prisoner also, rather than applying the exemption powers only for the purpose of denying grant of leave.”
Observing so, the Division Bench in Latha’s case has granted the relief to the prisoner by directing the authority concerned to consider the application seeking ordinary leave without reference to the pendency of her husband’s criminal appeal petition before the Hon’ble Supreme Court or the order passed in W.P.No.10265 of 2021 dated 18.02.2022 (L.Wasib Khan Vs. The State and others) or any other similar case holding the same ratio. - Though we are in full agreement with the view of the Division Bench
in Latha’s case, we feel that the conflicting views expressed by some other Division Benches as referred to above stands in our way to arrive at a firm conclusion on the issue and thereby, we are constrained to direct the Registry to place the matter before a larger Bench for its views on the following aspect:-
“Whether during pendency of the appeal before the High Court/Special Leave Petition before Apex Court, the prisoner can be extended the the benefit of Ordinary Leave or Emergency Leave under the Tamil Nadu Suspension of Sentence Rules, 1982 by exercising the powers under Article 226 of the Constitution of India.” - In the meanwhile, we make it clear that since this writ petition is
pending for a considerable time, we are inclined to take up the case for grant of interim orders. - On coming to the case on hand, prayer in this writ petition is to quash
the order dated 06.04.2024, passed by the second respondent, rejecting the petitioner’s representation dated 05.03.2024 seeking grant of ordinary leave for her husband, namely, Thirukumaran (C.P.No.4988). - The case of the petitioner is that her husband Thirukumaran is a
convict and he is in incarceration pursuant to the Judgment dated 29.08.2022, passed in S.C.No.409 of 2021, by the Principal Sessions Court, Tirunelveli. The appeal preferred by the convict against the conviction and sentence imposed on him is pending before this Court. - It is the further case of the petitioner that the petitioner requires the
presence of her husband (convict) to make arrangements to meet out the educational expenses of their children and for settlement of their family property and thereby, she made a representation, dated 05.03.2024, to the respondents seeking grant of thirty days ordinary leave to her husband (convict). However, the same has been rejected by the impugned order of the second respondent, citing the pendency of the appeal preferred by the convict before this Court challenging the conviction and sentence imposed on him by the Trial Court. Therefore, the present writ petition. - Learned Additional Public Prosecutor appearing for the respondents,
on instructions, submitted that the appeal preferred by the convict challenging the conviction and sentence imposed on him by the Trial Court is pending before this Court and as on date he has completed 1 ½ years of imprisonment and He has already availed leave and during such time, no untoward incident had taken place. - Taking into consideration the facts that the petitioner, wife of the
convict, requires the presence of her husband to make arrangements to meet out the educational expenses of their children and for settlement of their family property, we are inclined to pass the following orders:
(i) The respondents are directed to grant six days emergency leave to the petitioner’s husband, namely, Thirukumaran, (C.P.No.4988), without escort.
(ii) During the said leave period, he shall report before the
Inspector of Police, Kadayam Police Station, Tenkasi District, daily at 06.30 p.m., without fail.
(iii) He shall report back to the Superintendent of Prison, Central Prison, Palayamkottai / third respondent, by 10.00
a.m., on completion of the leave period, without fail.
(iv) The petitioner shall produce all necessary documents,
along with a copy of this order, before the jail authorities.
(v) During the leave period, the convict prisoner shall abide by all the conditions prescribed in the Jail Manual.
(vi) The convict shall utilize the leave only for the reason for which it has been granted and shall not partake in any
other activities. - Registry is directed to place the matter before the Larger Bench as
directed in Paragraph No.10.
sd/-/ TRUE COPY / 11/07/2024 19/07/2024 Sub-Assistant Registrar (A.D.II) Madurai Bench of Madras High Court, Madurai - 625 023.SSK/KRK
TO
1 THE PRINCIPAL SECRETARY TO GOVERNMENT OF TAMIL NADU,
HOME DEPARTMENT,
FORT ST.GEORGE,
CHENNAI 600 009
2 THE DEPUTY INSPECTOR GENERAL OF PRISON,
MADURAI RANGE,
MADURAI
3 THE SUPERINTENDENT OF POLICE
CENTRAL PRISON,
PALAYAMKOTTAI
4 THE INSPECTOR OF POLICE, KADAYAM POLICE STATION, TENKASI DISTRICT.
5 THE ADDITIONAL PUBLIC PROSECUTOR,
MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.
COPY TO:
1 THE REGISTRAR(JUDICIAL),MADRAS HIGH COURT, CHENNAI.
2 THE REGISTRAR(JUDICIAL),
MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.
3 THE PRINCIPAL SESSIONS JUDGE, TIRUNELVELI.
4 THE SECTION OFFICER,
WRIT SECTION,
MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.
ORDER IN
WP(MD) No.9491 of 2024
Date :11/07/2024
SA/SAR. /19.07.2024/20P/10C
Madurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023.
