Ambikavathi vs The Deputy Inspector General Of Prison on 30 October, 2023

[Cites 14, Cited by 0]

Madras High Court

Ambikavathi vs The Deputy Inspector General Of Prison on 30 October, 2023

This Writ Petition has been filed on 04.09.2023 by the mother of the prison inmate praying to call for the records pertaining to undated impugned order signed on 05.05.2023 bearing reference No.2340/Ta.Ku. 2/2023 passed by the second respondent [for the sake of convenience and clarity, hereinafter referred to as 'impugned order'], quash the same and consequently, direct the respondents to grant 40 days ordinary leave without escort to the petitioner's son namely Justin, S/o.Suvisheshamuthu, Life Convict Prisoner No.4689, confined in the Palayamkottai Central Prison.

2. The prison inmate was convicted inter-alia for the offence under Section 302 of the Indian Penal Code (45 of 1860) and sentenced to undergo life imprisonment and consequently, has been incarcerated at Palayamkottai Central Prison nearly for the past 3 years. _______________ https://www.mhc.tn.gov.in/judis Page No. 2 of 18 W.P.(MD) No.21785 of 2023

3. The petitioner who is the mother of the prison inmate has filed a support affidavit wherein she has stated that she sent a representation dated 17.04.2023 to the respondents seeking 40 days ordinary leave without escort to her son namely Justin, S/o.Suvisheshamuthu [Life Convicted Prisoner No.4689]. The said representation was rejected vide the undated impugned order signed by second respondent on 05.05.2023 on the ground that the prison inmate's appeal (Diary No.7499/2021) is pending before the Hon'ble Supreme Court. Hence, the petitioner filed this Writ Petition praying to quash the impugned order and grant 40 days ordinary leave to her son (the prison inmate).

4. The learned counsel for the petitioner submitted that the petitioner's representation was disposed of by the second respondent who is not a Competent Authority to grant ordinary leave; that since the second respondent has no power or authority to grant/sanction ordinary leave, he has no power to reject the petitioner's request of ordinary leave to her son (the prison inmate); that mere pendency of the appeal before the Hon'ble Supreme Court will not be a bar to grant ordinary leave; that the second respondent has passed the impugned order in a mechanical manner _______________ https://www.mhc.tn.gov.in/judis Page No. 3 of 18 W.P.(MD) No.21785 of 2023 without considering the merits of the case and that the respondents did not dispute the reasons stated in the petitioner's representation for ordinary leave. Accordingly, he has prayed to allow this Writ Petition and to grant 40 days ordinary leave without escort to the petitioner's son (prison inmate).

5. Issue notice to the respondents.

6. Mr.A.Thiruvadikumar, learned Additional Public Prosecutor accepted the notice for the respondents.

7. Considering the nature of the petition and on consent of both the parties, this writ petition was heard out in the admission board itself.

8. The learned Additional Public Prosecutor appearing for the respondents, on instructions, submitted that though the second respondent is not a Competent Authority under 'The Tamil Nadu Suspension of Sentence Rules, 1982' [for the sake of convenience and clarity, hereinafter referred to as 'TNSS Rules'], he is the Authority to receive, process and forward the representation along with the report of the probation officer to _______________ https://www.mhc.tn.gov.in/judis Page No. 4 of 18 W.P.(MD) No.21785 of 2023 the first respondent as enunciated in Rules 23 and 24 of TNSS Rules; that since the appeal filed by the prison inmate is pending before the Hon'ble Supreme Court, in view of Rule 35 of TNSS Rules, the prison inmate is not eligible for any leave and hence, the second respondent has rejected the application/representation for ordinary leave by citing the decision of another Hon'ble Co-ordinate Bench of the Madras High Court (Principal Seat of this Court) in L.Wasib Khan's case [L. Wasib Khan Vs. The State represented by its Deputy Inspector General of Prisons (Chennai Range) and others, W.P.No.10265 of 2021, order dated 18.02.2022] and therefore, there is no infirmity in the impugned order. Thus, this Writ Petition is devoid of merits. Accordingly, he prayed for dismissal of this Writ Petition.

9. This court has considered both side arguments and perused the records.

10. The prison inmate is a lifer and is in prison for the past 3 years. The petitioner who is the mother of the prison inmate aged 74 years, has stated that she is affected by hypertension and other ailments. She is undergoing treatment and has been advised by doctor to undergo certain _______________ https://www.mhc.tn.gov.in/judis Page No. 5 of 18 W.P.(MD) No.21785 of 2023 medical tests for consequent treatment as her heart is in a weak condition. Therefore, finance has to be arranged for her medical expenses and the prison inmate's help is necessary to her for mobilizing money and getting treatment. This court deems fit and necessary to mention here that the petitioner's representation neatly fits the grounds enunciated under Sub Rules (i) & (vii) of Rule 20 of TNSS Rules.

11. The main contention of the learned Additional Public Prosecutor appearing for the respondents is that, in view of Rule 35 read with Rule 2(4) of TNSS Rules, the criminal appeal filed by the prison inmate in Diary No.7499/2021 pending before the Hon'ble Supreme Court is a bar to any leave. A similar contention was raised before this Bench while sitting in the Principal Seat at Madras in S.Ishwariya's case [S.Ishwariya Vs. The State rep. by Secretary to Government of Tamil Nadu, Department of Home and another, order dated 27.09.2023 passed in W.P.No.28162 of 2023]. Facts of the said case is as follows. The prison inmate therein was convicted and sentenced to undergo 20 years of rigours imprisonment by the Sessions Court. The Conviction and Sentence was assailed before the High Court vide Crl.A.No.10 of 2019 and the same was dismissed. Feeling aggrieved with the Judgment, the _______________ https://www.mhc.tn.gov.in/judis Page No. 6 of 18 W.P.(MD) No.21785 of 2023 accused therein preferred an appeal before the Hon'ble Supreme Court and the same was also dismissed. Thereafter, a Curative Petition against the same has been filed which is pending. Pending Curative petition, the prison inmate sought for an ordinary leave. In the above factual matrix, this Bench in para (8) held as follows:-

8. ........

(i) ......

(ii) ....

(iii) ....

iv) Grounds on which leave has been sought are grounds for ordinary leave and are not grounds for emergency leave (to be noted, grounds for ordinary leave have been adumbrated in Rule 20 of said Rules and grounds for emergency leave have been adumbrated in Rule 6 of said Rules).

v) Be that as it may, as regards ordinary leave, the Authority vested with the power under said Rules to deal with the same is Deputy Inspector General of Prisons [second respondent] but in the case on hand, impugned order has been made by the third respondent who vide Rule 10 is vested with the authority to deal with only emergency leave. Therefore, impugned order deserves to be interfered with on this technical ground also;

vi) On a demurrer, Rule 35 of said Rules talks about pendency of trial qua a prison inmate. In our considered view, pendency of a curative petition will not become pendency of a trial as it is Apex jurisdiction of the highest Court. To be noted, _______________ https://www.mhc.tn.gov.in/judis Page No. 7 of 18 W.P.(MD) No.21785 of 2023 Curative Petition is post SLP and it is subjected to certain rigorous procedural requirements and that has prompted us to describe a curative petition as 'Apex jurisdiction'. Therefore, a curative petition cannot be construed as pendency of a trial.

This view is being taken as the objective behind Rule 35 of said Rules is to ensure that a prison inmate if he is facing trial does not make himself scarce in the trial Court so that the trial gets derailed. This situation is not going to emerge as regards curative petition in the Hon'ble Supreme Court;

vii) ....

viii) In Selvam's case reported in 2023:MHC:4258 [Neutral Citation of Madras High Court] this Bench dealt with the principle as to how said Rules which is a piece of Subordinate Legislation cannot abridge much less denude constitutional powers of this Court. The most relevant portion in Selvam's case which was also a case pertaining to grant of leave is contained in sub-paragraph (iii) of paragraph 8 and the relevant portion reads as follows:

'(iii)....In this regard, we remind ourselves that a prisoner and his fundamental rights do not part ways at the prison gates and Right to Education is indisputably a fundamental right. The said Rules is a piece of Subordinate Legislation made by Executive i.e., Government of Tamil Nadu in exercise of Rule making powers inter alia under Section 432(5) of 'The Code of Criminal Procedure, 1973 (2 of 1974)' [hereinafter 'Cr.PC' for the sake of brevity and clarity]. A piece of Subordinate Legislation which has not gone through grind i.e., Legislative grind in the Legislature can hardly constrict or in any manner hamper Constitutional powers of this Court, more so, when such Constitutional powers pertain to Article 21 of Constitution of India. In this regard, we remind ourselves of recent judgement of Hon'ble Supreme Court in Elgar Parishad case i.e., _______________ https://www.mhc.tn.gov.in/judis Page No. 8 of 18 W.P.(MD) No.21785 of 2023 Vernon case [Vernon Vs. State of Maharashtra and another reported in 2023 SCC OnLine SC 885 :

2023 LiveLaw (SC) 575], wherein K.A.Najeeb principle [Union of India Vs. K.A.Najeeb reported in 2021 3 SCC 713] was reiterated to say that a bail restricting clause in a Statute cannot denude jurisdiction of Constitutional Court and that this is a fundamental proposition. Though K.A.Najeeb principle and Elgar Parishad case were rendered in the light of Section 43D of Unlawful Activities (Prevention) Act, 1967, principle applies in all fours i.e., principle that a restriction clause in a Statute cannot denude jurisdiction of a Constitutional Court applies in all force. We draw inspiration from Hon'ble Supreme Court, having declared that this is a fundamental proposition. Reverting to the case on hand, said Rules is not even a Statute, it is a Subordinate Legislation made under Rule making powers vested with the Executive under Section 432(5) of Cr.PC and this Subordinate Legislation has not gone through legislative grind of law making in the Legislature. Therefore, this piece of Subordinate Legislation is only a codified guideline for the Executive to deal with requests for leave from prisoners and it cannot abridge Constitutional powers which this Court is exercising. At the risk of repetition, we reiterate that a prisoner and his fundamental rights do not part ways at the prison gates. To put it in a nutshell, Subordinate Legislation cannot denude nay not even abridge Constitutional powers.' The above said principle applies in all force to the case on hand and therefore, we have no hesitation in saying that a piece of Subordinate Legislation which has not undergone the Legislative drill cannot abridge or curtail much less denude Constitutional powers of this Court.

12. It is apposite to mention here that a more or less similar contention was raised on the strength of L.Wasib Khan's case before a _______________ https://www.mhc.tn.gov.in/judis Page No. 9 of 18 W.P.(MD) No.21785 of 2023 Hon'ble Co-ordinate Bench of this Court in Latha's case [Latha Vs. The State rep. by its Deputy Inspector General of Prison, Madurai Zone and others, dated 29.09.2023 passed in W.P.(MD) No.6398 of 2023] wherein the Hon'ble Co-ordinate Bench held thus:

42. Incidentally, another co-ordinate Bench of this Court, in the case of Shakila Vs. The State represented by its Secretary to Government of Tamil Nadu, Department of Home, Fort St.George, Chennai-600 009 and others, passed in W.P.No.2761 of 2023 dated 10.02.2023, had rendered a liberal interpretation to Rule 40 and held that the Rules as such are not absolute. The relevant portion of the order reads 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.” We are thus of the view that in view of Rule 40 of the 1982 Rules, the other provisions under the Rules, touching upon the eligibility criteria, the period of leave, mode of consideration, etc., are not mandatory in nature, but rather directory.

_______________ https://www.mhc.tn.gov.in/judis Page No. 10 of 18 W.P.(MD) No.21785 of 2023

43. In the context of our aforesaid findings, we are of the affirmed view that the decision in Wasib Khan is not in conformity with the Rules, as well as the other binding authorities referred to by us. If that be so, it is not necessary to make a reference of Wasib Khan to a larger Bench, as held by the five Judges Constitutional Bench of the Hon'ble Supreme Court in the judgment in the case of Dr Shah Faesal and others Vs. Union of India and another reported in (2020) 4 SCC 1.

44. In the light of the above findings, the reason adopted by the second respondent by quoting the decision in Wasib Khan's case as an impediment for consideration of the petitioner's husband's leave application in view of the pendency of his appeal before the Hon'ble Supreme Court, cannot be sustained. Accordingly, the impugned order dated 31.01.2023 on the file of the second respondent is quashed.

13. The impugned order has been passed citing L.Wasib Khan's case law. This Court has perused L.Wasib Khan's case law and S.Ishwariya's case law. L.Wasib Khan's case law is distinguishable from the facts of the case on hand. The facts of the case on hand is close to S.Ishwariya's case law. Hence, this Court follows S.Ishwariya's case law. _______________ https://www.mhc.tn.gov.in/judis Page No. 11 of 18 W.P.(MD) No.21785 of 2023

14. It is to be noted that, the prison inmate and co-accused filed the appeal against the conviction before the Hon'ble Supreme Court. Admittedly, State did not file appeal for enhancement of sentence. Victim also did not file appeal against the Judgment passed by the Hon'ble High Court. In any appeal arising out of conviction filed by the accused, there are only three possible outcomes which are as follows:-

i) dismissal of the appeal outright

ii) allowing of the appeal in total

iii) allowing of the appeal in part and reducing the sentence.

15. Therefore, this court is of the view that grant of leave would have no nexus to any of the above three possible outcomes. Moreover, in the present case, petitioner's son has already been convicted for the offence under Section 302 read with 34 of IPC and he has already undergone sentence for nearly three years. Hence, this Court is of the considered view that pendency of the appeal before the Hon'ble Supreme Court cannot brought within the scope of Rule 35 of TNSS Rules. Rule 35 of TNSS Rules reads as follows:

_______________ https://www.mhc.tn.gov.in/judis Page No. 12 of 18 W.P.(MD) No.21785 of 2023 '35.Pending cases.- No prisoner on whom a case is pending trial shall be granted leave.' Rule 35 of TNSS Rules confines itself only to those cases which are pending trial.

16. It is apposite to mention here Rule 36 of TNSS Rules, which reads as follows:

'36. Treatment of the period of leave.- The day on which the prisoner was released and the day on which he was readmitted shall both be counted as days of imprisonment, but the period of leave shall not be taken as period of sentence undergone by the prisoner.' Hence, any period spent on either emergency leave or ordinary leave, shall not be counted as sentence period. In other words, by grant of leave, the period of sentence is suspended and therefore the suspension period is not counted as period of sentence undergone.

_______________ https://www.mhc.tn.gov.in/judis Page No. 13 of 18 W.P.(MD) No.21785 of 2023

17. Considering the facts and circumstances of the case, this Court is of the view that pendency of the Criminal Appeal before the Hon'ble Supreme Court cannot be an impediment to this Court to exercise its constitutional power. In any event impugned order is vitiated and liable to be set aside as the authority to grant ordinary leave is first respondent (under Rule 19 of TNSS Rules) and it is not second respondent. Under Rule 10 of TNSS Rules, second respondent is Authority as regards Emergency Leave only. Rule 5 of TNSS Rules recognizes two kinds of leave viz., Ordinary leave and Emergency leave. Therefore, this Court is inclined to exercise the said power in favour of the petitioner and quash the impugned order. Accordingly, the impugned order/undated order (signed on 05.05.2023) bearing reference No.2340/Ta.Ku.2/2023 passed by the second respondent is quashed.

18. Though the petitioner has sought for 40 days ordinary leave to her son (prison inmate), considering the facts and circumstances of this case, this Court is inclined to grant only 21 days ordinary leave to the petitioner's son (the prison inmate) subject to the following conditions:

_______________ https://www.mhc.tn.gov.in/judis Page No. 14 of 18 W.P.(MD) No.21785 of 2023

(a) 21 days ordinary leave without escort, commencing from 03.11.2023 to 23.11.2023, is granted to the prison inmate namely Justin, S/o. Suvishesamuthu [LCT No.4689] confined in the Palayamkottai Central Prison;

(b) the prison inmate shall stay in the address given in the cause title of this Writ Petition namely, No.5/315, Rajeev Nagar, Vairavikulam, Kallidaikurchi, Tirunelveli District, through out the leave period;

(c) the prison inmate shall appear and sign before the Judicial Magistrate, Ambasamudram, Tirunelveli on all working days at 10.30 a.m. through out the leave period;

(d) the prison inmate shall execute a bond as per Rule 26 of TNSS Rules;

(e) the prison inmate shall utilize the 21 days ordinary leave only for the purpose for which it has been granted and shall not partake in any other activities;

_______________ https://www.mhc.tn.gov.in/judis Page No. 15 of 18 W.P.(MD) No.21785 of 2023

(f) the prison inmate shall surrender before the second respondent at or before 05.30 p.m. on 24.11.2023.

(g) The second respondent is directed to file a compliance report on or before 29.11.2023 before this Court.

19. This Writ Petition is allowed in the aforesaid manner. There shall be no order as to costs.

                                                                      (M.S., J.)          (R.S.V., J.)

                                                                             30.10.2023
                    Index: Yes
                    Neutral Citation: Yes
                    Internet: Yes
                    Speaking order

                    jen


                    Note:-

1. Registry is directed to forthwith communicate this order to Jail Authorities in Palayamkottai Central Prison.

2. Though this Writ Petition is disposed of, Registry is directed to post this matter under the caption 'COMPLIANCE REPORT' on 01.12.2023.

_______________ https://www.mhc.tn.gov.in/judis Page No. 16 of 18 W.P.(MD) No.21785 of 2023 To

1.The Deputy Inspector General of Prison, Madurai Zone, Madurai Central Prison, Madurai – 625 001.

2.The Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli – 627 002.

3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai. _______________ https://www.mhc.tn.gov.in/judis Page No. 17 of 18 W.P.(MD) No.21785 of 2023 M.SUNDAR, J., and R.SAKTHIVEL, J., jen Pre-Delivery Order made in W.P.(MD) No.21785 of 2023 30.10.2023 _______________ https://www.mhc.tn.gov.in/judis Page No. 18 of 18

Unlock Advanced Research with PRISMAI

Madras High Court