Madras High Court
Samsunisha vs The Government Of Tamil Nadu on 28 September, 2021
W.P.No.28164 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 15.02.2022
PRONOUNCED ON : 28.02.2022
CORAM
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
AND
THE HONOURABLE Mr.JUSTICE A.A.NAKKIRAN
W.P.No.28164 of 2021
Samsunisha .. Petitioner
Vs.
1.The Government of Tamil Nadu
Rep. 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
2nd Floor, Gandhi Irwin Road
Egmore, Chennai 600 008
3.The Superintendent of Prison
Central Prison
Coimbatore .. Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus, calling for the
records of the 1st respondent in his proceedings made in G.O.(2D) No.228,
1/8
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W.P.No.28164 of 2021
Home (Prison-V) Department, dated 28.09.2021 and quash the same and
direct the respondents to grant leave without escort for 60 days to the
petitioner's husband viz., Mohammed Ansari, S/o.Mohammed Sheik, aged
49 years, life convict No.13875, confined at Central Prison, Kovai.
For Petitioner Mr.D.Krishnamoorthy
For Respondents Mr.R.Muniyapparaj
Additional Public Prosecutor
ORDER
P.N.PRAKASH, J.
The petitioner's husband viz., Mohamed Ansari is a life convict
prisoner (CT.No.13875). He was convicted and sentenced on 24.10.2007 in
S.C.No.2 of 2000 by the Sessions Judge, Special Court for Bomb Blast
Cases, Coimbatore. His appeal before this Court was dismissed, aggrieved
by which, he has moved the Supreme Court in S.L.P.(Crl.) No.24293-24297
of 2010 and the same is pending. Seeking 60 days ordinary leave under the
Tamil Nadu Suspension of Sentence Rules, 1982 (for brevity "the Sentence
Suspension Rules"), the petitioner, who is his wife, gave a representation
dated 09.02.2021, to the respondents and has thereafter, filed W.P.No.4705
of 2021, seeking issuance of a writ of mandamus.
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W.P.No.28164 of 2021
2. During the pendency of the said W.P.No.4705 of 2021, the
1st respondent has passed an order dated 28.09.2021, rejecting the
petitioner's representation, for the following reasons :
i. His conviction under Explosive Substance Act and Indian
Arms Act 1959 are embargo under the Rule 22(i) of Tamil
Nadu Suspension of Sentence Rules, 1982.
ii. His appeal in S.L.P.(Crl.) No.24293-24297 of 2010 is still
pending and therefore he is ineligible for grant of leave as
per rule 35 of Tamil Nadu Suspension of Sentence Rules,
1982.
iii. The Deputy Inspector General of Prisons, Coimbatore
Range, The Probation Officer, TNP & CS, Coimbatore and
The Inspector of Police, B-1 Police Station, Coimbatore City
have strongly objected to the grant of ordinary leave to the
life convict prisoner.
iv. The life of the prisoner will be in danger because of his
involvement with Al-Umma, a banned terrorist outfit and it
is a threat to communal harmony.
Aggrieved by the impugned order dated 28.09.2021, the petitioner has filed
the instant writ petition.
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W.P.No.28164 of 2021
3. Heard Mr.D.Krishnamoorthy, learned counsel for the petitioner and
Mr.R.Muniyapparaj, learned Additional Public Prosecutor appearing for the
respondents.
4. Mr.D.Krishnamoorthy submitted that earlier, the convict prisoner
was granted leave by this Court twice and during those occasions, nothing
had happened to him and therefore, the impugned order dated 28.09.2021 of
the 1st respondent denying leave to him, is per se illegal. He also submitted
that the reasons assigned by the 1st respondent in the impugned order, are
not legally sustainable.
5. Per contra, the learned Additional Public Prosecutor refuted the
aforesaid contentions of Mr.D.Krishnamoorthy.
6. Coming to the first submission of Mr.D.Krishnamoorthy that
neither the prison authorities nor the Government, granted any leave to the
convict prisoner, but, it was only the High Court, which granted leave in
H.C.P.No.13 of 2019 and H.C.P.No.664 of 2020 vide order dated
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W.P.No.28164 of 2021
17.07.2019 and 13.07.2020, respectively, after the judgment of the
Supreme Court in Home Secretary (Prison) and Others, State of Tamil
Nadu Vs. H.Nilofer Nisha [(2020)14 SCC 161], a Division Bench of this
Court, led by one of us (PNPJ), in Saleema Vs. State rep. by its Secretary
to Government of Tamil Nadu, Department of Home Fort St. George and
Others [2021(1) MWN (Cr.) 198 (DB) : 2021 SCC OnLine Mad 206], has
held that a Habeas Corpus Petition cannot be maintained, for grant of
leave/parole and that, leave/parole can be granted, only in terms of the
Sentence Suspension Rules and not by the Court. Further, it is to be noted
that just because, two Division Benches of this Court, had earlier granted
leave to the convict prisoner, it does not automatically mean that the
respondents are estopped from considering the leave application, in terms of
the extant Sentence Suspension Rules.
7. That apart, a Full Bench of this Court, in State rep. by the Home
Secretary and Others Vs. Yesu @ Velaiyan [(2011) 5 CTC 353 : 2011 SCC
OnLine Mad 1463], has held that leave can be granted only under the
Sentence Suspension Rules and not outside of it. Rule 3, ibid. clearly states
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W.P.No.28164 of 2021
that leave cannot be claimed as a matter of right and it is a concession that is
granted to a prisoner. In Nilofer Nisha (supra), the Supreme Court has held
as under :
“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)
8. Rule 24, ibid. states that, all petitions for grant of ordinary leave,
shall be referred to the Probation Officer concerned, for report. In this case,
The Probation Officer, The Inspector of Police, B-1 Police Station and the
Deputy Inspector General of Prison, Coimbatore Range, have strongly
objected to the grant of leave to the convict prisoner, as his life may be in
danger, because of his involvement in Al-Umma, a banned terrorist outfit.
9. Just because, on earlier occasions, when the Court granted leave,
nothing untoward had happened to the convict prisoner, the State cannot
take a chance and grant leave, without obtaining reports from the Probation
Officer, ignoring Rule 24, ibid..
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W.P.No.28164 of 2021
In view of the foregoing discussion, we do not find any infirmity in the
impugned order dated 28.09.2021, passed by the 1st respondent, warranting
interference by this Court and accordingly, this writ petition stands
dismissed. No costs.
[P.N.P., J.] [A.A.N., J.]
28.02.2022
gya
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
2nd Floor, Gandhi Irwin Road
Egmore, Chennai 600 008
3.The Superintendent of Prison
Central Prison, Coimbatore
4.The Public Prosecutor
High Court, Madras
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W.P.No.28164 of 2021
P.N.PRAKASH, J.
AND
A.A.NAKKRIAN, J.
gya
W.P.No.28164 of
28.02.2022
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