Madras High Court
Bhuvaneshvari vs The State Represented By Its on 28 September, 2022
Author: P.N.Prakash
Bench: P.N.Prakash
Writ Petition No.8958 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDER RESERVED ON : 12.09.2022
ORDER PRONOUNCED ON : 28.09.2022
CORAM
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MR. JUSTICE RMT. TEEKAA RAMAN
Writ Petition No.8958 of 2022
Bhuvaneshvari
W/o.Nagarajan .. Petitioner
Vs.
The State represented by its
1.The Director Inspector General of Prison,
Coimbatore Range,
Coimbatore Central Prison,
Coimbatore - 641 018.
2.The Superintendent,
Salem Central Prison,
Salem - 636 007. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the records
pertaining to the impugned order No.221/Tha.Ku.3/2022 dated 28.01.2022
issued by the second respondent and to quash the same and consecutively
direct the respondents to grant leave for one month without escort to the
1/9
https://www.mhc.tn.gov.in/judis
Writ Petition No.8958 of 2022
detenu Nagarajan s/o.Mariappan, life convict prisoner, bearing Convict
No.8161 detained at Central Prison, Salem.
For Petitioner : Mr.S.Manoharan
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
*****
ORDER
P.N.PRAKASH, J The convict prisoner Nagarajan @ Koolai Nagarajan [CT No.8161] was convicted in S.C.No.34 of 1999 by the I Additional District and Sessions Court, Salem on 20.10.2004 u/s.302, 148, 341 IPC and also u/s.3 of Explosive Substances Act for various terms of imprisonment, the maximum being imprisonment for life for each count of murder (totally 5 counts). His appeal in Crl.A.No.140 of 2005 was dismissed by this Court on 01.02.2007. While so, the petitioner (wife of Nagarajan) gave a representation dated 24.12.2021 requesting one month ordinary leave for Nagarajan for making necessary arrangements for his daughter’s wedding. The prison authorities called for a report from the Probation Officer and the Inspector of Police in compliance with the requirements under the Tamil Nadu Suspension of Sentence Rules, 1982, based on which, vide impugned 2/9 https://www.mhc.tn.gov.in/judis Writ Petition No.8958 of 2022 order dated 28.01.2022, the leave application was rejected. Aggrieved thereby, the present writ petition has been filed.
2. Heard Mr.S.Manokaran, learned counsel for the petitioner and Mr.R.Muniyapparaj, learned Additional Public Prosecutor for the State.
3. The Superintendent of Prison, Salem, has filed a detailed counter affidavit dated 07.06.2022 setting out the circumstances under which the leave application was considered and rejected.
4. Mr.S.Manokaran, learned counsel for the petitioner, submitted that the petitioner has been in incarceration for a long time and his track record in the prison being good, the request for ordinary leave ought not to have been rejected. Learned counsel also submitted that earlier on the orders of this Court in H.C.P.No.2612 of 2019, Nagarajan was granted 16 days leave on 11.12.2019 and nothing adverse happened. Learned counsel contended that the Probation Officer and the Inspector of Police have given tailor- 3/9 https://www.mhc.tn.gov.in/judis Writ Petition No.8958 of 2022 made reports objecting to the grant of leave, which has been implicitly accepted by the prison authorities.
5. Per contra, Mr.R.Muniyapparaj, learned Additional Public Prosecutor, refuted the aforesaid submissions.
6. This Court perused the records including the report of the Probation Officer and the Inspector of Police. In the report dated 26.01.2022 that has been submitted by the Inspector of Police to the prison authorities, it is stated inter alia that Nagarajan is a gang leader; earlier he was involved in two murder cases viz., Mettur P.S.Crime No.45 of 1991 and Omalur P.S.Crime No.1350 of 1997; he was convicted and sentenced to imprisonment for life in both the cases and therefore, history sheet in H.S.No.269 of 2005 was opened against him; while he was serving the sentence in those cases, he was granted leave; when he came out on leave, he and his gang members fatally attacked Palanisamy, Councillor of Ward No.27 in connection with which, a case in Crime No.105 of 2011 was 4/9 https://www.mhc.tn.gov.in/judis Writ Petition No.8958 of 2022 registered u/s.147, 148, 120-B and 302 IPC; he is also operating from jail through his minions, who are involving in murder and robbery cases; hence, if he is granted leave, there is a possibility of threat to his life as well as threat to others by him.
7. The Probation Officer in his report dated 26.01.2022 has stated inter alia that the petitioner (wife of Nagarajan) has, in her petition, stated that her younger daughter's (Mathivathani) marriage has been fixed; but, when he went to the village and enquired with her, she stated that the marriage is not actually fixed, but she is scouting for a groom amongst her relatives. Therefore, in the said report, the Probation Officer has stated that the reasons given by the petitioner is false.
8. In the counter affidavit filed by the Superintendent of Prison, Salem, it is stated that only emergency leave has been granted to Nagarajan five times by the prison authorities. However, this Court in H.C.P.No.2612 of 2019 has granted 16 days leave from 13.12.2019 to 28.12.2019. It may be 5/9 https://www.mhc.tn.gov.in/judis Writ Petition No.8958 of 2022 pertinent to state here that this Court was arrogating itself the power of the prison authorities under the Tamil Nadu Suspension of Sentence Rules, 1982 and was granting leave to convict prisoners in Habeas Corpus Petitions. After the judgment of the Supreme Court in the case of Home Secretary (Prison) and Others, State of Tamil Nadu Vs. H.Nilofer Nisha [(2020)14 SCC 161], this procedure has been put to an end to.
9. In the counter affidavit, the Superintendent of Prison, Salem, has stated that the convict prisoner Nagarajan was involved in more than 12 prison offences and therefore, the averment in the affidavit filed by the petitioner that he has reformed and has become disciplined is incorrect. Rule 3 of the Tamil Nadu Suspension of Sentence Rules, 1982, clearly states that leave is only a concession and cannot be claimed as a matter of right. There is an elaborate procedure laid down in Rule 24 of the Tamil Nadu Suspension of Sentence Rules, 1982, for examining the leave applications of convict prisoners. Such a procedure has been adumbrated in order to ensure that the prison authorities do not exercise their powers arbitrarily. Rule 24 of the Tamil Nadu Suspension of Sentence Rules, 1982, states that a 6/9 https://www.mhc.tn.gov.in/judis Writ Petition No.8958 of 2022 report should be obtained from the Probation Officer and if necessary, from the local Sub-Inspector of Police also. In this case, the Probation Officer and the Inspector of Police have given valid reasons for not recommending the case of the convict prisoner Nagarajan for grant of ordinary leave. Since the Probation Officer and the Inspector of Police have given valid reasons for not recommending the case of Nagarajan, the impugned order passed on the said two reports cannot be said to be vitiated. In this context, it is profitable to advert to Rule 3 of the Tamil Nadu Suspension of Sentence Rules, 1982, which reads as under:
“3. Leave is not a right. - Leave cannot be claimed as a matter of right. It is a concession granted to the prisoner.” Further, in Nilofer Nisha's case [supra], it has been held as follows:
“26. We would also like to point out that the grant of remission or parole is not a right vested with the prisoner. It is a privilege available to the prisoner on fulfilling certain conditions. This is a discretionary power which has to be exercised by the authorities conferred with such powers under the relevant rules/regulations.” (emphasis supplied) In such view of the matter, we find no infirmity in the impugned order.
In the result, this writ petition is dismissed as being devoid of merits.
No costs.
7/9 https://www.mhc.tn.gov.in/judis Writ Petition No.8958 of 2022 [PNP, J.] [TKR, J.] 28.09.2022 Index: Yes/No gm To 1.The Director Inspector General of Prison, Coimbatore Range, Coimbatore Central Prison, Coimbatore - 641 018. 2.The Superintendent, Salem Central Prison, Salem - 636 007. 3.The Public Prosecutor, High Court, Madras. P.N.PRAKASH, J and RMT. TEEKAA RAMAN, J 8/9 https://www.mhc.tn.gov.in/judis Writ Petition No.8958 of 2022 gm Pre-delivery Order in Writ Petition No.8958 of 2022 28.09.2022 9/9 https://www.mhc.tn.gov.in/judis