Madras High Court
Durga Devi vs 3 The Superintendent Of Central ... on 13 May, 2021
W.P. No.12122 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 07.09.2021
DELIVERED ON 16 .09.2021
CORAM:
THE HON’BLE MR. JUSTICE P.N. PRAKASH
and
THE HON’BLE MS. JUSTICE R.N. MANJULA
W.P. No.12122 of 2021 & W.M.P. No.12892 of 2021
Durga Devi Petitioner
vs.
1 The Government of Tamil Nadu
Represented by its Secretary to Government
Home (Prison IV) Department
Fort St. George
Chennai 600 009
2 The Additional Director General of Prisons
Thalamuthu Natarajan Maaligai
II Floor, Gandhi Irwin Road
Egmore, Chennai 600 008
3 The Superintendent of Central Prison
Cuddalore Respondents
Writ Petition filed under Article 226 of the Constitution of India seeking a
writ of certiorarified mandamus, calling for the records of the third respondent in
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W.P. No.12122 of 2021
his proceedings no.7691/Tha.Ku.2/2021 dated 13.05.2021 and quash the same and
consequently, direct the respondents to grant 30 days leave to the petitioner’s
husband, viz., R. Palanisamy, Life Convict No.16133, detained at the Central
Prison, Cuddalore, without police escort, on the basis of the petitioner’s
representation dated 01.05.2021.
For petitioner Mr. A.P. Sathyamoorthy
For respondents Mr. R. Muniyapparaj
Government Advocate (Crl. Side)
ORDER
P.N. PRAKASH, J.
This writ petition has been preferred calling into question the legality and
validity of the proceedings of the third respondent dated 13.05.2021, in and by
which, the petitioner’s request for grant of 30 days leave for her husband
Palanisamy, has been turned down and for a direction to the respondents to grant
30 days leave to Palanisamy without police escort, based on the petitioner’s
representation dated 01.05.2021.
2 The petitioner’s husband Palanisamy is a convict prisoner (CT
No.16133), who is undergoing life sentence in the Central Prison, Cuddalore. The
petitioner addressed a representation dated 01.05.2021 to the prison authorities
seeking 30 days leave, without escort, for Palanisamy, under the Tamil Nadu
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W.P. No.12122 of 2021
Suspension of Sentence Rules, 1982, on the ground that he should make
arrangements for mobilizing funds for paying the college fees of their daughter
who is said to be pursuing her III year B.D.S. course. Finding no response, she
preferred W.P.No.11910 of 2021, in which, a Division Bench of this Court, by
order dated 13.05.2021, directed the Government to dispose of the petitioner’s
representation dated 01.05.2021 on merits. However, in the meanwhile, the
Superintendent, Central Prison, Cuddalore, has considered the petitioner’s
representation dated 01.05.2021 and by the impugned order dated 13.05.2021,
rejected the same, aggrieved by which, this writ petition has been preferred.
3 Heard Mr. A.P. Sathyamoorthy, learned counsel for the petitioner and
Mr.R.Muniyapparaj, learned Government Advocate (Crl. Side) appearing for the
respondents.
4 The Superintendent, Central Prison, Cuddalore, has filed a detailed
counter affidavit dated 09.07.2021, wherein, it is stated that Palanisamy was
convicted and sentenced by the Principal Sessions Judge, Coimbatore vide
judgment and order dated 23.06.2005 in S.C. No.303 of 2004 in Anaimalai P.S.
Cr.No.159 of 2002 as under:
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W.P. No.12122 of 2021
Provision under which convicted Sentence
S.302 IPC Life imprisonment with fine of
Rs.10,000/-, in default to undergo
rigorous imprisonment for 1 year
S.148 IPC Rigorous imprisonment for 1 year
S.324 IPC Rigorous imprisonment for 6
months
S.3 of the Explosive Substances Act Rigorous imprisonment for 10
years and fine of Rs.1,000/-, in
default to undergo rigorous
imprisonment for 6 months
The aforesaid sentences were ordered to run concurrently. The appeal preferred
thereagainst in Crl.A.No.573 of 2005 was dismissed by the High Court on
24.01.2007.
5 Apart from the above, the convict prisoner was convicted and
sentenced, as under, by the Additional District and Sessions Court (Fast Track
Court No.III), Coimbatore in S.C. No.23 of 2005 in Anaimalai P.S.Cr. No.287 of
2004 vide judgment and order dated 27.07.2005:
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W.P. No.12122 of 2021
Provision under which Sentence
convicted
S.392 read with S.397 IPC Rigorous imprisonment for 7
years and fine of Rs.1,000/-,
in default to undergo simple
imprisonment for 4 months
S.506(I) IPC Rigorous imprisonment for 2
years and fine of Rs.1,000/-,
in default to undergo simple
imprisonment for 4 months
6 Challenging the aforesaid conviction and sentences in S.C.No.23 of
2005, the convict prisoner filed Crl.A.No.327 of 2007 and the same was dismissed
by this Court on 07.11.2013.
7 While so, the convict prisoner, invoking Section 482 Cr.P.C.,
preferred an original petition in Crl.O.P. No.16223 of 2017 before this Court,
seeking that the sentences imposed on him in Crl.A.Nos.573 of 2005 and 327 of
2007 may be ordered to run concurrently and the said criminal original petition
was allowed on 10.08.2017.
8 At this juncture, it may be relevant to state here that the Government,
pursuant to the directions issued by this Court vide order dated 13.05.2021 in
W.P.No.11910 of 2021, considered the case of the convict prisoner and by
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W.P. No.12122 of 2021
G.O.(2D) No.127, Home (Prison-V) Department dated 01.06.2021, has rejected
the petitioner’s request for ordinary leave for the convict prisoner on the ground
that he would not be entitled to ordinary leave under Rule 21(b) of the Tamil Nadu
Suspension of Sentence Rules, 1982, as he has been convicted of the offence
under Section 392 read with Section 397 IPC.
9 The counter affidavit dated 09.07.2021 also states that the convict
prisoner was granted 135 days of emergency leave and 105 days of leave based on
the orders passed by this Court from time to time in the various petitions that were
filed on behalf of the convict prisoner. Further, it appears that the convict prisoner
was involved in four prison offences. Rule 21(b), ibid., reads as under:
“21. Non-eligibility for ordinary leave.—The following
categories of prisoners shall not be eligible for ordinary leave:
(b) Prisoners sentenced under Sections 392 to 402 of the
Indian Penal Code (Central Act 45 of 1860);
10 Superadded, it is seen that the convict prisoner was granted leave by
this Court in H.C.P.No.1404 of 2020 on 19.08.2020, by virtue of which, he was
released from the prison on 20.08.2020 and he returned to the prison on
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W.P. No.12122 of 2021
03.09.2020 after availing leave for 15 days. At this juncture, it is noteworthy to
refer to Rule 22(3), ibid. which reads as under:
“22. Eligibility for ordinary leave.—
(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.
As per Rule 22(3) extracted above, the convict prisoner may not be entitled to
leave until the completion of two years imprisonment calculated from 03.09.2020,
which is the date of his last entry into the prison.
11 In the conspectus of the facts and law narrated above, we do not find
any infirmity in the impugned order dated 13.05.2021 passed by the third
respondent warranting interference.
In the result, this writ petition fails and is accordingly dismissed, however,
sans costs. Connected miscellaneous petition stands closed.
(P.N.P., J.) (R.N.M., J.)
16.09.2021
cad
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W.P. No.12122 of 2021
P.N. PRAKASH, J.
and
R.N. MANJULA, J.
cad
To
1 The Secretary to Government
Home (Prison IV) Department
Fort St. George
Chennai 600 009
2 The Additional Director General of Prisons
Thalamuthu Natarajan Maaligai
II Floor, Gandhi Irwin Road
Egmore, Chennai 600 008
3 The Superintendent of Central Prison
Cuddalore
4 The Public Prosecutor
High Court, Madras
Chennai 600 104
W.P. No.12122 of 2021
16.09.2021
https://www.mhc.tn.gov.in/judis/
