Madras High Court
Shakila vs The State Represented By Its on 10 February, 2023
Bench: M.Sundar, M.Nirmal Kumar
W.P.No.2761 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.02.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
W.P.No.2761 of 2023
Shakila
W/o.Manoharan .. Petitioner
Vs.
1. The State represented by its
The Secretary to Government of Tamil Nadu
Department of Home
Fort St. George
Chennai – 600 009
2. The Deputy Inspector General of Prison
Central Prison
Salem - 636 007
3. The Superintendent
Central Prison
Salem - 636 007 .. Respondents
Writ petition filed under Article 226 of the Constitution of India for
issuance of writ of mandamus directing the respondents to grant leave for
10 days without escort to the detenu R.Manoharan, S/o.Rajalingam, aged
about 53 years, life convict prisoner, bearing Convict No.8610 detained at
Central Prison, Salem.
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W.P.No.2761 of 2023
For Petitioner : Ms.K.Akshaya
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR.J,] Captioned writ petition has been filed by wife of a convict prisoner (Mr.R.Manoharan, son of Thiru.Rajalingam, Convict No.8610) now lodged in Central Prison, Salem. To be noted, the convict prisoner was convicted and sentenced to undergo life imprisonment for an offence under Section 302 read with Section 109 of 'Indian Penal Code (45 of 1860)' ['IPC'] in S.C.No.109 of 2005 on the file of Principal Sessions Judge's Court, Trichy.
2. Ms.K.Akshaya, learned counsel for petitioner, submits that a representation dated 18.01.2023 has been sent by the petitioner (convict prisoner's wife) seeking 40 days ordinary leave on two grounds viz., a) ill- health of convict prisoner and b) the poor and failing health of convict prisoner's old mother.
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3. The third respondent in and by an order dated 03.02.2023 bearing reference No.1486/jF3/2023 negatived the request for 40 days ordinary leave by adverting to Section 2(4) of the 'Tamil Nadu Suspension of Sentence Rules, 1982' [hereinafter 'said Rules' for the sake of convenience]. To be noted, Section 2(4) defines 'sentence'. A perusal of 03.02.2023 order of the third respondent refers to an order dated 18.02.2022 made by another Hon'ble Division Bench in W.P.No.10265 of 2021. To be noted, this is L.Wasib Khan's case and we have perused the same by going into official website of this Court.
4. L.Wasib Khan's case [L.Wasib Khan Vs. State of Tamil Nadu decided on 18.09.2022 in W.P.No.10265 of 2021] refers to the celebrated judgment of Hon'ble Supreme Court in K.M.Nanavati Vs. State of Bombay reported in AIR 1961 SC 112 and it also refers to K.Rajamanickam case [K.Rajamanickam & Ors. Vs. State of Tamil Nadu & Ors. reported in 1991 SCC OnLine Mad 897] decided by another Hon'ble Division Bench. Therefore, the sequence of case laws is K.M.Nanavati Vs. State of Bombay Page Nos.3/18 https://www.mhc.tn.gov.in/judis W.P.No.2761 of 2023 reported in AIR 1961 SC 112; K.Rajamanickam & Ors. Vs. State of Tamil Nadu & Ors. reported in 1991 SCC OnLine Mad 897 and L.Wasib Khan Vs. State of Tamil Nadu decided on 18.09.2022 in W.P.No.10265 of 2021.
5. Learned counsel for petitioner submits that notwithstanding rejection of the leave, it is well open to this Court to grant leave inter-alia owing to the failing health of detenu's mother. In this regard, we find that communication to third respondent from jurisdictional Probationary Officer dated 09.02.2023 bearing reference g/tp/vz;/14-2023 confirms the position that the health of the convict prisoner's mother is critical. The communication in Tamil says 'ftiyf;fplkhf cs;shh;'. This 09.02.2023 communication from the jurisdictional Probationary Officer in entirety is as follows:
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6. There is no disputation that the convict prisoner had earlier availed leave for the period from 01.09.2022 to 22.09.2022.
7. In this regard, learned Additional Public Prosecutor drew the attention of this Court to Rule 22 of said Rules. However, we are informed that there is a recent amendment to Rule 22 of said Rules and the same Page Nos.5/18 https://www.mhc.tn.gov.in/judis W.P.No.2761 of 2023 kicked in on 25.04.2022 when the amendment was notified vide G.O (Ms) No.205, Home (Prison-V) Department. Amended Rule 22 now reads as follows:
' 22. Eligibility for ordinary leave:- (1) No prisoner shall be granted ordinary leave unless he has been sentenced by a court in this State to imprisonment for a term or imprisonment for life for an offence against any law other than a law relating to a matter to which the executive power of the Union Government extends and he has completed:-
(a) one year of imprisonment in cases of prisoners sentenced to imprisonment for a period not exceeding five years;
(b) two years of imprisonment in cases of prisoners sentenced to imprisonment for a period exceeding five years but not more than fourteen years;
(c) three years of imprisonment in cases of prisoners sentenced to imprisonment for a period exceeding fourteen years and for life.
Explanation:- The period of actual imprisonment shall be counted from the date of admission to prison as convict.
(2) The ordinary leave shall not exceed the period as specified below at a time, unless extended by the Government:-
(a) twenty one days for the prisoners sentenced to imprisonment for a period not exceeding five years;
(b) twenty one days from the third to fifth years of Page Nos.6/18 https://www.mhc.tn.gov.in/judis W.P.No.2761 of 2023 imprisonment and not exceeding twenty eight days during the rest of the term of imprisonment for the prisoners sentenced to imprisonment for a period exceeding five years but not more than fourteen years;
(c) twenty one days during the fourth and fifth years of imprisonment; nor exceeding twenty eight days from the sixth year of imprisonment to fourteenth year of imprisonment and not exceeding forty days during the rest of the term for prisoners sentenced to imprisonment for life and those sentenced exceeding fourteen years;
Provided that the maximum period of forty days of ordinary leave may be availed in one spell or in two spells of any duration.
(3) The prisoner shall be granted the second or subsequent spell of ordinary leave not exceeding the period mentioned in sub rule (2) above, after the completion of one year of imprisonment from the date on which he returns from the last ordinary leave.'
8. To be noted, the earlier Rule 22 reads as follows:
'22. Eligibility for ordinary leave:
[1]No prisoner shall be granted ordinary leave unless he has been sentenced by a court in this State to imprisonment for a term or imprisonment for life for an offence against any law other than a law relating to a matter to which the executive power of the Union Government extends and he has completed [three years of imprisonment from the date of initial imprisonment] (2) The period of ordinary leave shall not exceed one month Page Nos.7/18 https://www.mhc.tn.gov.in/judis W.P.No.2761 of 2023 at a time unless it is extended by Government;
(3) The prisoner shall be granted the second spell of leave not exceeding one month after the completion of two years of imprisonment from the date on which he returns from the last ordinary leave:
(4) In cases of prisoners who have got a balance of three years to serve ordinary leave not exceeding one month for each of three years, the year being calculated from the date of his return to prison from last leave, shall be granted so as to enable them to make arrangements for setting the family life after release.'
9. We have carefully considered the contestations and submissions on both sides.
10. To be noted, the communication of the jurisdictional Probationary Officer that aged mother of the convict prisoner is critically ill is the nucleus of our consideration.
11. We now proceed to deal with the two objections raised by the learned Additional Public Prosecutor. One objection turns on K.M.Nanavati and K.Rajamanickam case laws which have been referred to in L.Wasib Khan case law. A careful perusal of the three orders/judgments makes it clear that on facts while K.Rajamanickam and L.Wasib Khan deal Page Nos.8/18 https://www.mhc.tn.gov.in/judis W.P.No.2761 of 2023 with grant of ordinary leave to convict prisoners, the judgments are predicated on Paragraph 21 of K.M.Nanavati case, which reads as follows:
'21. 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 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 Page Nos.9/18 https://www.mhc.tn.gov.in/judis W.P.No.2761 of 2023 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 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 case judicially.” (Underlining made by this Court for ease of reference)
12.To be noted, K.M.Nanavati case on facts is a Naval Officer was arrested for the offence under Section 302 IPC and a trial was held by Jury which found the accused not guilty, following which the Sessions Court Page Nos.10/18 https://www.mhc.tn.gov.in/judis W.P.No.2761 of 2023 disagreeing with the Jury made a reference to Bombay High Court under Section 307 of Cr.P.C. Bombay High Court convicted him to undergo life imprisonment. On the same day, the Governor of that State under Article 161 of the Constitution of India suspended the sentence until appeal was filed before Hon'ble Supreme Court. In the meanwhile, the Sessions Court issued a warrant for the arrest of the accused which was returned unserved. Thereafter, the matter went to Division Bench of Bombay High Court which directed the matter to be placed before a Larger Bench, which held that the High Court has power to examine the validity of the power of the Governor under Article 161 of the Constitution. Meanwhile, a Special Leave Petition was filed before Hon'ble Supreme Court.
13.K.Rajamanickam case turns on the question as to whether the High Court's power under Section 482 of Cr.P.C extends to any order of appropriate Government passed under Section 432 Cr.P.C or whether the High Court can issue directions under Section 482 Cr.P.C to release a convict on parole.
14.In Wasib Khan's case, the accused was convicted by a Special Court for NDPS Act cases to undergo 10 years Rigorous Imprisonment and Page Nos.11/18 https://www.mhc.tn.gov.in/judis W.P.No.2761 of 2023 on application of ordinary leave for one month, the same was dismissed citing that the convict did not complete required number of years of imprisonment under Rule 22 of said Rules and his challenge against conviction was pending in the appellate Court.
15. Aforementioned case laws do not come to the aid of the Additional Public Prosecutor in saying that this Court should not exercise power of grant of leave owing to pendency of appeal. There are two reasons for this. One is a a careful perusal of the aforesaid case laws brings to light that they deal with exercise of Executive power when judiciary is in seizin of an appeal.
16. In this regard, we make it clear that the ratio in K.M.Nanavati case as articulated by this Court in L.Wasib Khan's case is 'so long as the judiciary has the power to pass an order, Executive functioning in the same field at the same time will lead to possibility of conflict of a jurisdiction.' Therefore, we have no hesitation in saying that K.Rajamanickam, L.Wasib Khan and K.M.Nanavati case laws does not come to the aid of the Page Nos.12/18 https://www.mhc.tn.gov.in/judis W.P.No.2761 of 2023 learned Additional Public Prosecutor in his campaign in the captioned matter. We make it clear that though two points have been raised in the representation i.e., convict prisoner being indisposed and ill-health of the aged mother, we grant leave on the ground of failing health of the convict's mother (mother critical) .
17. Second reason is Rule 40 of said Rules, which reads as follows:
'40. Power to exempt The Government may exempt any person from all or any of the provisions of these rules.'
18. Aforementioned K.Rajamanickam and L.Wasib Khan case laws do not deal with impact of Rule 40.
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. Page Nos.13/18 https://www.mhc.tn.gov.in/judis W.P.No.2761 of 2023
20.To be noted, very recently another Hon'ble Division Bench vide order dated 29.08.2022 in W.P.No.11939 of 2022 [R.Chellammal vs. The State and Another] had granted leave during the pendency of appeal before Hon'ble Supreme Court. Paragraph 3 of this order dated 29.08.2022 in W.P.No.11939 of 2022 reads as follows:
'3. The Respondents, by filing a counter affidavit, opposed the grant of leave to the detenu on the ground that the detenu has not completed requisite number of years of imprisonment to avail the benefit of leave sought for by him and that the matter is pending before the Hon'ble Supreme Court and therefore he is not entitled for the leave sought for by him, as per Rule 35 of the Tamil Nadu Suspension of Sentences Rules, 1982 (in short 'the TNSS Rules, 1982').'
21. We had also respectfully referred to a order dated 29.08.2022 in W.P.No.11939 of 2022 in granting leave in the case of seriously ill convict prisoner vide our order dated 03.02.2023 in W.P.No.853 of 2023.
22.Learned Additional Public Prosecutor on instructions submits that if this Court is inclined to grant leave to the convict prisoner, it is imperative Page Nos.14/18 https://www.mhc.tn.gov.in/judis W.P.No.2761 of 2023 that it is with escort as according to learned Additional Public Prosecutor, there is a possibility of retaliation. Learned Additional Public Prosecutor makes this submission on instruction from the jurisdictional police.
23.We also make it clear that matters of this nature have to be dealt with on a case to case basis. As already alluded to and delineated supra, what weighed with us heavily is jurisdictional Probationary Officer has given a written communication making it clear that mother of the convict prisoner is critically ill. Ergo, we pass the following order:
a) The third respondent shall release the convict prisoner Mr.R.Manoharan, son of Mr.Rajalingam, Convict No.8610 from Central Prison, Salem on ordinary leave for 10 days from 11.02.2023 to 20.02.2023;
b) The second respondent shall release the convict prisoner from prison at 10.30 a.m on 11.02.2023 and on the ten days period elapsing, the convict prisoner shall surrender himself before the second respondent at 05.30pm on 20.02.2023;
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(c) Ten days leave is with escort and the strength of the escort is left to the discretion of the State.
24.Captioned writ petition disposed of with the aforesaid directives. Though captioned writ petition is disposed of, list the matter under the caption 'FOR REPROTING COMPLIANCE' on 21.02.2023.
(M.S.,J.) (M.N.K.,J.)
10.02.2023
Index : No
Neutral Citation : No
Upload forthwith
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W.P.No.2761 of 2023
To
1. The Secretary to Government of Tamil Nadu
Department of Home
Fort St. George
Chennai – 600 009
2. The Deputy Inspector General of Prison
Central Prison
Salem - 636 007
3. The Superintendent
Central Prison
Salem - 636 007
4. The Public Prosecutor
High Court, Madras.
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W.P.No.2761 of 2023
M.SUNDAR, J.,
and
M.NIRMAL KUMAR, J.,
gpa
W.P.No.2761 of 2023
10.02.2023
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