Sheefa Rani vs The Secretary To Government Of Tamil ... on 11 August, 2025

[Cites 26, Cited by 0]

Madras High Court

Sheefa Rani vs The Secretary To Government Of Tamil ... on 11 August, 2025

These writ petitions have been filed challenging the orders of the Prison authorities rejecting the request for emergence leave/ordinary leave to the convict prisoners and for a direction to grant emergency leave/ordinary leave to them.

2.In all these writ petitions, appeals are pending before this Court challenging the conviction and sentence passed by the concerned Court. Since the applications for suspension of sentence under Section 389 Cr.P.C. were rejected, in short, since the accused were not released on bail by the Appellate Court, the writ petitioners have come before this Court invoking Page 5 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch Article 226 of the Constitution of India seeking ordinary leave and emergency leave provided under the Tamil Nadu Suspension of Sentence Rules, 1982 (hereinafter referred to as “Suspension of Sentence Rules”).

3.When this Court raised a doubt as to grant of such leave under Suspension of Sentence Rules, the learned counsels appearing for the petitioners submitted that this issue is no longer res integra and relied upon the judgment of a Division Bench of this Court in Latha v. State [2023/MHC/4502] and the judgment of a Full Bench of this Court in T.Ramalakshmi v. State and others reported in (2025) 1 LW (Crl.) 310, which has approved the view of the Division Bench in Latha's case. Therefore, it is their contention that Suspension of Sentence Rules is also applicable to the pending appeal cases. According to the learned counsels, since as per Rule 35 of the Suspension of Sentence Rules, only the pending trial prisoners are not entitled to leave, since the trial is not pending in these case and only an appeal is pending, they shall not be treated as pending trial prisoners. Hence, the prisoners herein are entitled to leave under Suspension of Sentence Rules.

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4.Mr.R.Sankarasubbu, learned counsel appearing for the petitioner in W.P.(Crl.) No.722 of 2025, placed reliance on the judgment of the Constitution Bench of the Hon'ble Supreme Court in Maru Ram and others v. Union of India and others reported in AIR 1980 SC 2147 and submitted that, on humanitarian grounds, the prisoners are entitled to leave. He also relied upon the following judgments :

i. Ramakrishnan v. State of Tamil Nadu and others [1983 LW (Crl.) 181] ii. M.Kandasamy v. State of Tamil Nadu reported in (1988) 1 MWN (Cr) 1 iii. Dadu alias Tulsidas v. State of Maharashtra [2000 (8) SCC 437]

5.Ms.S.Nadhiya, learned counsel for the petitioner in W.P.(Crl.) No.1244 of 2025 also made submissions in line with that of Mr.R.Sankarasubbu and she relied upon the following judgments in support of her submissions :

i. Manokaran v. State of Tamil Nadu [SLP Crl.A.No.866 of 2000, dated 01.10.2002] Page 7 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch ii. C.Mayilvizhi v. State of Tamil Nadu [H.C.P.No.1975 of 2010, dated 01.03.2012] iii. Chockiah v. The Government of Tamil Nadu [W.P.(MD) No.5233 of 2014, dated 26.03.2014] iv. Asfaq v. State of Rajasthan and others [SLP Crl.A.No.(S).10464 of 2017, dated 11.09.2017] v. H.Nilofer Nisha v. The Home Secretary (Prisons) and others [SLP Crl.A.No.(S) 144 of 2020, dated 23.01.2020] vi. Asha Kannan v. Additional Director General of Prisons [HCP No.693 of 2020, dated 08.04.2020] vii.S.Santhosam v. Secretary to Government [W.P.No.14685 of 2021, dated 02.09.2021]

6.Whereas, the learned Additional Public Prosecutor appearing for the respondents would submit that the judgment of this Court in Latha's case as well as T.Ramalakshmi's case are in direct conflict with the judgment of the Constitution Bench of the Hon'ble Supreme Court in K.M.Nanavati v. State of Bombay reported in AIR 1961 SC 112 as well as the decision of an earlier Full Bench of this Court in State v. Yesu @ Velaiyan reported in (2011) 5 CTC 353.

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7.On a perusal of the judgments of the Division Benches as well as Full Benches of this Court, we are of the view that the issue requires detailed deliberations. Since the latter Full Bench of this Court in T.Ramalakshmi v. State and others reported in (2025) 1 LW (Crl.) 310 has taken a view contrary to the decision of the earlier Full Bench of this Court in State v. Yesu @ Velaiyan reported in (2011) 5 CTC 353, this Court is of the view that the issue has to be decided properly.

8.Now, the question that arises before this Court is whether the convict prisoners, whose appeals are pending before this Court or the Supreme Court, can invoke the jurisdiction of this Court under Article 226 of the Constitution of India to seek leave as per Tamil Nadu Suspension of Sentence Rules, 1982 ?

9.Before delving into the issue, it is relevant to note that the Tamil Nadu Suspension of Sentence Rules, 1982, is framed in exercise of power conferred on the Government under Sub-Section (5) of Section 432 of Code Page 9 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch of Criminal Procedure, 1973.

10.Section 432 Cr.P.C/Section 473 BNSS is a power of the appropriate Government to suspend or remit sentences. The appropriate Government may, at any time, without conditions or upon any conditions, suspend the execution of the sentence or remit the whole or any part of the punishment to which the accused has been sentenced.

11.The definition clause under Rule 2(4) of the Suspension of Sentence Rules defines “sentence” as follows :

“(4) “sentence” means a sentence as finally fixed on appeal or revision or otherwise and includes an aggregate of more sentence than one. Sentences in default of fine shall not be taken into consideration while fixing eligibility for being released on leave.” The above definition makes it clear that, to apply the provisions of the Suspension of Sentence Rules, the sentence has to be finally fixed on appeal or revision or otherwise. When there is no appeal or revision or when the trial Court's judgment has reached finality, then the entire power to grant leave vests with the appropriate Government under Section 432 of the Code of Criminal Procedure/Section 473 of Bharatiya Nagarik Suraksha Sanhita Page 10 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch (BNSS). In other words, once the sentencing part is over and the sentence has reached finality by the Courts, then, for suspending or remitting the sentence, power vests with the appropriate Government as per Section 432 Cr.P.C./Section 473 BNSS. Only by exercising the power under Section 432 Cr.P.C., the Tamil Nadu Suspension of Sentence Rules, 1982, has come into force.

12.However, admittedly, in all these cases, appeals are pending before this Court. When appeals are pending, normally, suspension of sentence is granted by the Appellate Court under Section 389 Cr.P.C./Section 430 BNSS. However, there is a common misconception regarding the expression “suspension of sentence”, since it occurs both in Section 389 Cr.P.C./Section 430 BNSS and Section 432 Cr.P.C./Section 473 BNSS. Under Section 389 Cr.P.C./Section 430 BNSS, the sentence is suspended by the Appellate Court. What is suspended is the “execution of the sentence or order appealed against”. It is for this reason, the accused is released on bail, since he continues to remain in the Court custody. Whereas, under Section 432 Cr.P.C./Section 473 BNSS, what is suspended is the “execution of the Page 11 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch sentence” and this power is exercised by the appropriate Government and not the Court, since by this stage, the accused is not in the custody of the Court at all, since sentence has already reached finality.

13.We also traced the background of the Full Bench judgment in T.Ramalakshmi's case. In L.Wasib Khan v. Inspector General of Prisons reported in (2022) 2 CTC 598, a person convicted and sentenced for a period of 10 years for an offence under NDPS Act, moved an application before this Court under Article 226 of the Constitution of India seeking 30 days ordinary leave during the pendency of appeal before this Court. The same was rejected by the Prison authorities. While he challenged the same under Article 226 of the Constitution of India, a Division Bench of this Court, took note of the decision of the Constitution Bench of the Hon'ble Supreme Court in Nanavati's case (supra), wherein, it is held as follows :

“18.It will be seen that Section 426 is as unfettered by other provisions of the Code as Section 401 with this difference that powers under Section 426 can only be exercised by an appellate court pending an appeal. When both the provisions are thus unfettered, they have to be harmonised so Page 12 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch that there may be no conflict between them. They can be harmonised without any difficulty, if Section 426 is held to deal with a special case restricted to the period while the appeal is pending before an appellate court while Section 401 deals with the remainder of the period after conviction. We see no difficulty in adopting this interpretation nor is there any diminution of powers conferred on the executive by Section 401 by this interpretation. The words “at any time” emphasise that the power under Section 401 can be exercised without limit of time, but they do not necessarily lead to the inference that this power can also be exercised while the court is seized of the same matter under Section 426.

...

22.In the present case, the question is limited to the exercise by the Governor of his powers under Article 161 of the Constitution suspending the sentence during the pendency of the special leave petition and the appeal to this court; and the controversy has narrowed down to whether for the period when this court is in seizin of the case the Governor could pass the impugned order, having the effect of suspending the sentence during that period. There can be no doubt that it is open to the Governor to grant a full pardon at any time even during the pendency of the case in this court in exercise of what is ordinarily called “mercy jurisdiction”. Such a pardon Page 13 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch after the accused person has been convicted by the court has the effect of completely absolving him from all punishment or disqualification attaching to a conviction for a criminal offence. That power is essentially vested in the head of the Executive, because the judiciary has no such “mercy jurisdiction”. But the suspension of the sentence for the period when this court is in seizin of the case could have been granted by this court itself. If in respect of the same period the Governor also has power to suspend the sentence, it would mean that both the judiciary and the executive would be functioning in the same field at the same time leading to the possibility of conflict of jurisdiction. Such a conflict was not and could not have been intended by the makers of the Constitution. But it was contended by Mr Seervai that the words of the Constitution, namely, Article 161 do not warrant the conclusion that the power was in any way limited or fettered. In our opinion there is a fallacy in the argument insofar as it postulates what has to be established, namely, that the Governor's power was absolute and not fettered in any way. So long as the judiciary has the power to pass a particular order in a pending case to that extent the power of the Executive is limited in view of the words either of Sections 401 and 426 of the Code of Criminal Procedure and Articles 142 and 161 of the Constitution. If that is the correct Page 14 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch interpretation to be put on these provisions in order to harmonise them it would follow that what is covered in Article 142 is not covered by Article 161 and similarly what is covered by Section 426 is not covered by Section 401. On that interpretation Mr Seervai would be right in his contention that there is no conflict between the prerogative power of the sovereign state to grant pardon and the power of the courts to deal with a pending cage judicially.

...

26.As a result of these considerations we have come to the conclusion that the order of the Governor granting suspension of the sentence could only operate until the matter became sub judice in this court on the filing of the petition for special leave to appeal. After the filing of such a petition this court was seized of the case which would be dealt with by it in accordance with law. It would then be for this Court, when moved in that behalf, either to apply Rule 5 of Order 21 or to exempt the petitioner from the operation of that Rule. It would be for this court to pass such orders as it thought fit as to whether the petitioner should be granted bail or should surrender to his sentence or to pass such other or further orders as this court might deem fit in all the circumstances of the case. It follows from what has been said that the Governor had no power to grant the suspension of sentence for the Page 15 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch period during which the matter was sub judice in this court.” In view of the said judgment, the Division Bench, in Wasib Khan's case, held that, since the appeal was pending before this Court, the question of the Executive suspending the sentence under Suspension of Sentence Rules by granting leave does not arise.

14.From the above dictum of the Constitution Bench of the Hon'ble Supreme Court in Nanavati's case, it is very clear that, when an appeal is pending before the Court, suspension of sentence cannot be ordered by the Governor, invoking the provisions under Suspension of Sentence Rules and granting leave, particularly when the application for bail filed either under Section 389 Cr.P.C. or Section 430 BNSS is rejected by the Court.

15.It is also pertinent to note that another Division Bench of this Court in Shakila v. State [W.P.No.2761 of 2032, dated 10.02.2023] has held that the power of the Government to exempt any person from all or any of the provisions of the said Rules provided under Rule 40 of Suspension of Sentence Rules has not been considered in Wasib Khan's case and the Page 16 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch Division Bench has observed as follows :

“19.A careful perusal of Rule 40 makes it clear that the Executive itself has ample and adequate powers to exempt any one from the provisions of said Rules. Therefore, said Rules has an inbuilt provision vesting the Executive itself with the power to exempt a convict prisoner from the operation of said Rules. This makes it clear that said Rules or provisions thereunder are not absolute and cannot come in the way or become an impediment in judiciary exercising its powers to grant leave.”

16.However, it is relevant to note that the power to exempt under Rule 40 is also contrary to the law laid down by the Hon'ble Supreme Court in Nanavati's case.

17.The said judgment of the Division Bench in Shakila's case was cited before another Division Bench in K.Rajalakshmi v. The Principal Secretary [2023/MHC/268]. The Division Bench has also considered the judgment of the another Division Bench in Santhosam v. State [W.P.No.14685 of 2021] which has considered the Full Bench decision in Yesu's case and held as follows :

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https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch “The scope of Rule 40, ibid., came up for consideration before a Full Bench of this Court in State vs. Yesu, wherein, at paragraph 42, it was held that if Rule 40, ibid. was exercised to exempt a person from the Sentence Suspension Rules, the resultant position was that the State Government would have no power to grant suspension of sentence at all. This is because the Full Bench, at paragraph 52, has observed that "outside the scope of the Tamil Nadu Suspension of Sentence Rules, no authority has got any power to grant suspension of sentence in any form." Ex consequenti, the power to exempt cannot be used to grant leave outside the four corners of the Sentence Suspension Rules, as there exists no plenary power with the State Government to grant leave dehors the provisions of the Sentence Suspension Rules. What cannot be done on account of the express bar contained in Rule 35, ibid., cannot be indirectly circumvented through the back door of Rule 40, ibid. The decision of the Full Bench in Yesu (supra), binds us, with the result that the contention premised on Rule 40, ibid. cannot be countenanced.” The Division Bench also took note of the judgment of the Apex Court in Nanavati's case and Wasib Khan's case and held as follows :

“Since the view taken by the Division Bench in Shakila's case (cited supra) is not in consonance with the Hon'ble Supreme Page 18 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch Court's Judgement as well as the Full Bench decision, cited supra, which are having a binding effect on this Bench, we are not inclined to accept the plea raised by the petitioner and at the same time the stand taken by the respondents as projected by the learned Additional Public Prosecutor is to be accepted, accordingly, we are inclined to dismiss the Writ Petition, hence, it is dismissed.”

18.Therefore, the judgment of the Full Bench of this Court in Yesu's case was followed, till the decision of the Full Bench of this Court in T.Ramalakshmi's case.

19.Thereafter, another Division Bench in Latha v. State [2023/MHC/4502, dated 29.09.2023], framed the following question for consideration :

“Whether the pendency of an appeal against conviction, before the Appellate Court, can be cited as an embargo for rejection of a request for grant of leave under the provisions of the Tamil Nadu Suspension of Sentence Rules, 1982 ?” The Division Bench also referred the decision of the Constitution Bench of the Hon'ble Supreme Court in Nanavati's case and in Para No.8 of its Page 19 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch judgment, held as follows :

“8.In K.M.Nanavati, the core ratio laid therein was so long as the judiciary has the power to pass an order, the Executive functioning in the same field at the same time will lead to possibility of a conflict of a jurisdiction. In this background, the Hon'ble Supreme Court had held that while Section 389 CrPC deals with power to suspend the sentence when an appeal is pending before an Appellate Court, Section 432 CrPC deals with the remainder of the period after conviction. In other words, the power under Section 432 CrPC can be exercised by the Executive at any time, but will not lead to the inference that such powers can also be exercised while the Court is seized of the same matter under Section 389 CrPC.” Having followed the said judgment, the Division Bench has also held that “there can be no second opinion that the aforesaid ratio in Nanavati's case requires to be applied in all cases, where suspension of sentence is sought for either under Section 389 Cr.P.C. or Section 432 Cr.P.C., as the case may be.” Further, the Division Bench in Para No.9, held as follows :

“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 Page 20 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch 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.” The Division Bench has further held that “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.” Page 21 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch

20.It is relevant to note that the Division Bench in Latha's case has come to a conclusion that the Suspension of Sentence Rules is intended only for grant of emergency leave and ordinary leave; therefore, it is applicable to the prisoners whose appeal is also pending. It is also relevant to note that, as stated above, the very preamble of Tamil Nadu Suspension of Sentence Rules, 1982, makes it clear that it has been framed in exercise of powers under Section 432(5) of Code of Criminal Procedure, 1973. Section 432 Cr.P.C. deals with the power of the Executive to suspend or remit the sentence by the Executive. This power is exercised by the Executive in the name of Governor. Therefore, when the Rules themselves are framed under Section 432 Cr.P.C. to grant leave or ordinary leave after sentence has been finally fixed by the Appellate Court/Revisional Court, we are of the definite opinion that, when appeals are pending, i.e., when sentence is not finally fixed by the Appellate Court/Revisional Court, only the Courts have the power to suspend the execution of the sentence either under Section 389 Cr.P.C. or Section 430 BNSS.

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21.We are also aware of the fact that, in various States in India, different terminologies have been used, viz., parole, furlough, leave, etc., for release of prisoner under Section 432 Cr.P.C. Once, the power under Section 432(5) Cr.P.C. is exercised, it goes without saying that it amounts to “suspension of sentence”.

22.In State of Haryana v. Nauratta Singh reported in (2000) 3 SCC 514, the Hon'ble Supreme Court has held as follows :

“Section 432 of the Code of Criminal Procedure falls within Chapter XXXII, which contains provisions regarding “execution, suspension, remission and commutation of sentences”. Sub-section (1) of Section 432 empowers the appropriate Government to “suspend the execution of the sentence” or remit “the punishment to which he has been sentenced”. The sub-section reads thus:

“432. When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.”” Further, it is held that “suspension of a sentence is obviously different from Page 23 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch remission of any part of the punishment to which a person is sentenced.

While Section 432 of the Code deals with power of the Government to suspend the sentence, Section 389 of the Code deals with power of the court to suspend execution of sentence pending appeal or revision. Whenever the sentence is suspended by the court the convict is entitled to be released on bail. The expression used in Section 432(1) of the Code for remission is “remit … the punishment to which he has been sentenced”.

It is, therefore, clear that remission can be granted only with reference to an operative punishment. In other words, when there is no operative punishment, there is no need to remit any part of such punishment.

23.Admittedly, the Suspension of Sentence Rules has been enacted under Section 432(5) Cr.P.C. The Division Bench in Latha's case referred above has itself observed in Para No.8 that “there can be no second opinion that the aforesaid ratio in K.M.Nanavati requires to be applied in all cases, where “suspension of sentence” is sought for either under Section 389 CrPC or Section 432 CrPC, as the case may be.” Page 24 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch

24.Therefore, even as per the Division Bench in Latha's case, Nanavati's case applies to a case of suspension of sentence under Section 432 Cr.P.C. Therefore, we are unable to comprehend as to how Nanavati's case is inapplicable to the leave granted under the Suspension of Sentence Rules enacted under Section 432(5) Cr.P.C. In fact, the Division Bench was of the view that, in Wasib Khan's case, the petitioner therein had asked only for leave, not suspension of sentence. This observation, in our view, is totally contrary to the Full Bench in Yesu's case reported in (2011) 5 CTC 353, wherein, in Para No.31, the Full Bench has clearly held as follows :

“31.As we have seen earlier, in Kerala State as referred to in C.A. Pious case, there is a Rule regulating grant of parole known as ‘Kerala Prison Rules, 1958’ issued under the Prisons Act. In that Rules, if a prisoner is released temporarily either on emergency leave or ordinary leave, the said period shall be counted as sentence period. In so far as the State of Tamil Nadu is concerned, here also there is a Rule known as the “Tamil Nadu Prison Rules” issued under the Prisons Act. But the said Rules do not regulate temporary release of prisoner on parole, instead, yet again it deals only with the suspension of sentence.

“Thus, as per the Tamil Nadu Prison Rules, the period of sentence suspended including emergency leave shall not be Page 25 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch counted towards sentence period.”

25.From the above judgment of the Full Bench, it can be easily understood that grant of ordinary leave or emergency leave under the Suspension of Sentence Rules amounts to “suspension of sentence” under Section 432(5) Cr.P.C., since the period spent during such leave is not counted as a part of the sentence period. Therefore, we are respectfully in disagreement with the Division Bench in Latha's case that the expression “suspension of sentence” in the Suspension of Sentence Rules is distinct from “leave” and that the title of the Rules is a misnomer.

26.These conflicting views were noticed by another Division Bench in T.Ramalakshmi v. State [W.P.(MD) No.9491 of 2024] and by order dated 11.07.2024, the Division Bench referred the matter to the Full Bench. The Full Bench in T.Ramalakshmi's case, after considering various decisions of the Division Benches, observed as follows :

“6.The Tamil Nadu Suspension of Sentence Rules, 1982 was notified in exercise of the powers conferred by the Sub-

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https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch Section (5) of 432 of the Criminal Procedure Code, 1973 (corresponding to Section 473 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023). Rule 3 stipulates that leave is not a right. Therefore, no prisoner can claim leave as a matter of right. Instead, it is a concession granted to the prisoner in the context of reformation. Consequently, the competent authorities have to consider the leave application with reference to the eligibility and by following the due process as contemplated under the provisions of the Tamil Nadu Suspension of Sentence Rules, 1982.” In Para No.7, it was held as follows :

“7.Thus, we have no hesitation in holding that under Rule 35 of the Tamil Nadu Suspension of Sentence Rules, 1982, the competent Prison Authority is empowered to grant ordinary leave or emergency leave to a prisoner during the pendency of a criminal appeal before any of the Appellate Courts.” In Para No.12, the Full Bench held as follows :

“12. … this Court concurs with the view taken by the Division Bench in the case of Latha cited supra, which is the right proposition of law to be followed by the Prison Authorities, while dealing with the leave applications of the prisoners.” Page 27 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch

27.It is pertinent to note that in Para No.6, the Full Bench has observed that the Tamil Nadu Suspension of Sentence Rules, 1982 has been framed in exercise of powers under Section 432(5) Cr.P.C. As already noticed, leave is granted under the 1982 Rules and operates as “suspension of sentence” under Section 432 Cr.P.C. Once it is held that the 1982 Rules is framed under Section 432(5), there is no escape from the consequence that Nanavati’s case applies in full force.

28.The Division Bench, in Para No.8 of Latha’s case, has also agreed with this and held as follows:

“There can be no second opinion that the aforesaid ratio in K.M.Nanavati requires to be applied in all cases, where “suspension of sentence” is sought for either under Section 389 CrPC or Section 432 CrPC, as the case may be.”

29.The Division Bench in Latha's case proceeded on the basis that ordinary or emergency leave under Suspension of Sentence Rules do not amount to suspension of sentence. With great respect to the Division Bench, this view is totally against the Rules, since the Rules themselves are made only under Section 432(5) Cr.P.C., which deals with suspension of Page 28 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch sentence and this view is also contrary to the earlier Full Bench of this Court in Yesu's case. Once the Division Bench has held that Nanavati's case applies to all cases of suspension of sentence, then it is very difficult for the Prison authorities to grant leave during pendency of the appeal. Be that as it may.

30.The Full Bench, while answering the reference in T.Ramalakshmi's case, has also discussed about Rule 40 of the Suspension of Sentence Rules from Para No.22 onwards. It is to be noted that, while referring the matter to the Full Bench, the Division Bench had framed a sole question of law as under :

“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 ?” However, the Full Bench has framed other questions by itself. The additional questions framed by the Full Bench do not relate to the scope of Rule 40 of the Suspension of Sentence Rules. The Full Bench also referred Page 29 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch the judgment of the Division Bench in Latha's case, which, in turn, referred to Rule 40 of the Suspension of Sentence Rules to hold that the Government has the power to exempt prisoners from the Rules and grant leave. It is relevant to note that this view is also contrary to the earlier decision of the Full Bench in Yesu's case, wherein, it is held in Para No.27 as follows :

“27.In view of the said settled position of law, so far as the State of Tamil Nadu is concerned, since there is a statutory Rule in the form of the Tamil Nadu Suspension of Sentence Rules, occupying the field of suspension of sentence by grant of either emergency leave or ordinary leave, the executive power of the State under Article 162 of the Constitution cannot be exercised by the State in derogation of the said Rules. To put it otherwise, outside the scope of the said Rules, the Government or any other Authority of the Government shall not grant any suspension of sentence to a prisoner.”

31.Therefore, in the above judgment, the Full Bench in Yesu's case has taken a view that, suspension of sentence cannot be granted to a prisoner outside the scope of Suspension of Sentence Rules. Therefore, the judgment of the later Full Bench in T.Ramalakshmi's case that the Government can grant leave by exempting the Rules, is otherwise Page 30 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch prohibited by Yesu's case. Since the later Full Bench decision in T.Ramalakshmi's case is contrary to the earlier Full Bench decision in Yesu's case and is also running counter to the principle laid down by the Constitution Bench of the Hon'ble Supreme Court in Nanavati's case, we are of the view that the issue with regard to the grant of leave under Suspension of Sentence Rules, while exercising the power under Article 226 of the Constitution of India, in pending appeal cases, has to be authoritatively decided by a larger Bench since there are two contrary views of Full Benches of this Court.

32.It is also relevant to note that, recently, the Government has also issued a communication vide Letter (Ms).No.357, Home (Pri.III) Department, dated 15.07.2025, to the Director General of Prisons and Correctional Services, in compliance with the orders of this Court in W.P.No.14244 of 2025, dated 18.04.2025, granting powers to the Prison authorities to grant temporary release of the prisoners and the procedure to be followed therefor, which is nothing but in accordance with Yesu's case.

The other judgments relied upon by Mr.R.Sankarasubbu and Ms.S.Nadhiya Page 31 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch are either not applicable to the facts of the present case or not directly to the point to answer the issue on hand.

33.Therefore, Registry is directed to place the matter before the Hon'ble Chief Justice with a request to constitute a larger Bench to consider the conflict between the decisions of two Full Benches of this Court in State v. Yesu reported in (2011) 5 CTC 353 and T.Ramalakshmi v. State and others reported in (2025) 1 LW (Crl.) 310 and to consider the following questions of law :

i. Whether leave under Tamil Nadu Suspension of Sentence Rules, 1982, can be granted to a prisoner under Article 226 of the Constitution of India, when his appeal against conviction is pending either before the Hon'ble Supreme Court or this Court ?

ii. Whether the power to exempt under Rule 40 of the Tamil Nadu Suspension of Sentence Rules, 1982 can be exercised by the State to grant leave to a prisoner outside the scope of the said Rules when his appeal against conviction is pending before the Hon'ble Supreme Court or this Court in the light of the decision of the Constitution Bench of the Hon'ble Supreme Court Page 32 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch in K.M.Nanavati v. State of Bombay reported in AIR 1961 SC 112 ?

34.Till such reference is made and answered, Registry is directed not to entertain any application for grant of emergency leave or ordinary leave under Tamil Nadu Suspension of Sentence Rules, 1982, particularly when appeal is pending either before this Court or Supreme Court.

                                                                                      (N.S.K., J.)    (M.J.R., J.)
                                                                                             19.11.2025
                     mkn

                     Internet : Yes
                     Index : Yes
                     Speaking Order
                     Neutral Citation : Yes

                     To

                     1.The Secretary to Government of Tamil Nadu,
                       Home Department
                       Fort St. George, Chennai – 600 009.

2.The Additional Director General of Police and Inspector General of Prisons, Whannels Road, Egmore, Chennai – 600 008.

3.The Deputy Inspector General of Police, Page 33 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch Vellore Range, Prison Department, Vellore District.

4.The Deputy Inspector General of Prisons, Whannels Road, Egmore, Chennai – 600 008.

5.The Superintendent of Prison, Central Prison, Puzhal, Chennai – 600 066.

6.The Superintendent, Puzhal Central Prison – I, Puzhal – 600 066.

7.The Superintendent of Prisons, Central Prison Cuddalore, Cuddalore District.

8.The Registrar General, High Court, Madras.

9.The Public Prosecutor, High Court, Madras.

N. SATHISH KUMAR, J.

and M. JOTHIRAMAN, J.

mkn Page 34 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch Common Order in W.P.(Crl.) Nos.722, 1244, 1167 & 1321 of 2025 19.11.2025 Page 35 of 35 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm )

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