Madras High Court
P.Rajeswari vs State Of Tamilnadu on 6 December, 2021
Author: S.Vaidyanathan
Bench: S.Vaidyanathan, G.Jayachandran
W.P.(MD) No.19 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
W.P.(MD) No.19 of 2021
and
W.M.P.(MD) No.12 of 2021
P.Rajeswari ... Petitioner
-vs-
1.State of Tamilnadu
Rep.by the Principal Secretary to Government
Home (Prison V) Department
Secretariat, Fort St.George
Chennai-600 009
2.The Additional Director General of Prison
Egmore, Chennai-600 008
3.The Deputy Inspector General of Prison
Department of Prison
Madurai Range, Madurai-16
4.The Superintendent of Prison
Central Prison, Madurai ... Respondents
_______________
Page 1 of 11
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.19 of 2021
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue
a writ of certiorarified mandamus to call for records pertaining to impugned
order passed by respondent No.4, dated 05.06.2020 in No.6727/j.F.2/2020
and quash the same as illegal and consequently direct the respondents to
grant long leave or two months ordinary leave to the petitioner's son namely
Ravi @ Ravichandran (C.P.No.4967), who is undergone for more than 27 years
of imprisonment as per rule 20(i) and (vii) of Tamilnadu Suspension of
Sentence Rules, 1982.
For Petitioner : Mr.Thirumurugan.T.
For Respondents : Mr.S.Ravi
Additional Public Prosecutor
ORDER
S.VAIDYANATHAN, J.
and DR.G.JAYACHANDRAN, J.
When the matter is taken up for hearing, the learned Additional Public Prosecutor appearing for the respondents submitted that subsequent to the filing of this writ petition, the petitioner's son was granted thirty days ordinary leave from 16.11.2021 to 16.12.2021, as per his entitlement and therefore, nothing survives for consideration in this writ petition. _______________ Page 2 of 11 https://www.mhc.tn.gov.in/judis W.P.(MD) No.19 of 2021
2. However, the learned counsel appearing for the petitioner would submit that since the order impugned in this writ petition is regarding competency of the State Government to grant leave to a convict, who suffers life imprisonment for a case investigated by the Central Bureau of Investigation for the offences under the Explosive Substances Act 1908, Arms Act 1959, Passports Act, 1967 and the Indian Wireless Telegraphy Act 1933, besides Section 120B and 302 I.P.C., it requires test by this Court.
3. This Court is of the view that the law, which governs suspension and remission of sentence, is different from grant of leave either on the ground of emergency or ordinary leave for a prisoner.
4. As far as the present case is concerned, the petitioner made a representation on 07.08.2019 seeking emergency leave for one week to her son enabling him to attend her during eye surgery. The same was not considered by the Prison Authorities taking note of the objections. Then again, the petitioner made a representation on 03.03.2020 seeking ordinary leave for thirty days for her son to arrange the family affairs, namely, letting out the lands for lease etc. On 26.06.2021, the petitioner has made another _______________ Page 3 of 11 https://www.mhc.tn.gov.in/judis W.P.(MD) No.19 of 2021 representation for a long leave invoking Rule 40 of the Tamil Nadu Suspension of Sentence Rules, 1982 (hereinafter, referred to as “the Rules”). Indicating this representation, the petitioner again made a representation on07.07.2021 for grant of long leave or three months to her son to take care of her as she is ailing age related diseases and cataract surgery. However, the present writ petition is regarding rejection of her representation, dated 29.05.2020, which was for long leave or at least three months leave stating various reasons, including her ailment. This representation was considered by the Prison Authorities and rejection order was passed on 05.06.2020 citing that the accused, who was sentenced to death by the Trial Court later altered as life imprisonment by the Honourable Supreme Court on appeal, suffers the sentence for the case investigated by the Central Bureau of Investigation and the offences under the Central Acts as mentioned above. In such circumstances, under Rule 22(1) of the Rules, the request of the petitioner to release her son on ordinary leave cannot be considered.
5. The learned counsel appearing for the petitioner would specifically submit that Rule 22(1) of the Rules does not create any bar for considering the relief of leave and furthermore, law is well-settled by the Honourable Supreme Court that even if the convict has been sentenced for the offence under the _______________ Page 4 of 11 https://www.mhc.tn.gov.in/judis W.P.(MD) No.19 of 2021 Central Act, once the term of sentence imposed for the offence under the Central Act expires, the consultation of the Central Government is not required and therefore, the reason found in the impugned order dated 05.06.2020 is incorrect, illegal and liable to be quashed and the request of the petitioner has to be considered afresh.
6. Before adverting to the merits of the above submission, the change in circumstances and facts in this particular case is that the detenu has been granted ordinary leave for thirty days from 16.11.2021 to 16.12.2021 and as on date, he is enjoying the leave pursuant to the subsequent representation given by the petitioner.
7. Now, adverting to Rule 22 of the Rules, which reads as below:
“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.
_______________ Page 5 of 11 https://www.mhc.tn.gov.in/judis W.P.(MD) No.19 of 2021 (2) The period of ordinary leave shall not exceed one month 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 arrangement for settling the family life after release.
in the present case, since the petitioner has already been granted thirty days ordinary leave, no further consideration for granting long leave or three months leave, as sought for in this writ petition, can be granted, in the light of Sub-Rule (3) to Rule 22 of the Rules. That apart, the Tamil Nadu Suspension of Sentence Rules, 1982 have been framed in exercise of the power conferred under Sub-Section (5) to Section 432 of the Code of Criminal Procedure, 1973, which confers powers to the appropriate Government to make general Rules or special orders in respect of suspension of sentence. Under Sub-Section (7) to Section 432 Cr.P.C., the expression “appropriate Government” is explained as below:
_______________ Page 6 of 11 https://www.mhc.tn.gov.in/judis W.P.(MD) No.19 of 2021 “(7) In this section and in section 433, the expression “appropriate Government” means,-
(a) in cases where the sentence is for an offence against, or the order referred to in sub-
section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;
(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.”
8. Now, adverting to Section 435 Cr.P.C., which reads as below “435. State Government to act after consultation with Central Government in certain cases.- (1) The powers conferred by sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence-
(a) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, or
(b) which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or _______________ Page 7 of 11 https://www.mhc.tn.gov.in/judis W.P.(MD) No.19 of 2021
(c) which was committed by a person in the service of the Central Government, while acting or purporting to act in the discharge of his official duty, shall not be exercised by the State Government except after consultation with the Central Government.
(2) No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends.” it is crystal clear that whenever the convict, who suffers imprisonment, seeks for remission or commutation of sentence during the term of sentence imposed under the Central Act, consultation with the Central Government is mandatory. Whether any particular case falls under the requirement of Section 435 Cr.P.C., which contemplates consultation with the Central Government, is to be decided on the facts of the particular case. Sofar as the _______________ Page 8 of 11 https://www.mhc.tn.gov.in/judis W.P.(MD) No.19 of 2021 instant case is concerned, in view of the fact that the State Government has already realized and ascertained their power to grant leave to the convict and exercised their power under Rule 22 of the Rules by granting ordinary leave for thirty days to the convict, nothing survives for consideration in this writ petition and hence, the writ petition is liable to be dismissed.
9. Accordingly, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
[S.V.N., J.] [G.J., J.]
06.12.2021
Index : Yes / No
Internet : Yes / No
Note :
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the
order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
krk _______________ Page 9 of 11 https://www.mhc.tn.gov.in/judis W.P.(MD) No.19 of 2021 To:
1.The Principal Secretary to Government, Home (Prison V) Department, State of Tamilnadu, Secretariat, Fort St.George, Chennai-600 009.
2.The Additional Director General of Prison, Egmore, Chennai-600 008.
3.The Deputy Inspector General of Prison, Department of Prison, Madurai Range, Madurai-16.
4.The Superintendent of Prison, Central Prison, Madurai.
_______________ Page 10 of 11 https://www.mhc.tn.gov.in/judis W.P.(MD) No.19 of 2021 S.VAIDYANATHAN, J.
and DR.G.JAYACHANDRAN, J.
krk W.P.(MD) No.19 of 2021 and W.M.P.(MD) No.12 of 2021 06.12.2021 _______________ Page 11 of 11 https://www.mhc.tn.gov.in/judis