Madras High Court
D.Chandra vs Government Of Tamil Nadu ... on 3 February, 2022
W.P.No.1527 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2022
Coram
The Honourable Mr. Justice P.N.PRAKASH
and
The Honourable Mrs. Justice R.HEMALATHA
W.P.No.1527 of 2022
D.Chandra .. Petitioner
Vs.
1.Government of Tamil Nadu represented by
The Secretary to Government,
Home (Prison IV) Department,
Fort St.George,
Chennai – 600 009.
2.The Additional Director General of Prisons,
Thalamuthu Natrajan Maaligai,
II Floor, Gandhi Irwin Road,
Egmore, Chennai – 600 008.
3.The Superintendent of Prisons,
Central Prison-I (Convict),
Puzhal, Chennai – 600 066. .. Respondents
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W.P.No.1527 of 2022
Petition filed under Article 226 of the Constitution of India praying to
issue a writ of mandamus directing the respondents to consider the
petitioner's representation dated 17.01.2022.
For Petitioner : Mr.M.G.B.Jeyakumar
for Mr.R.Arunkumar
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
ORDER
[Made by P.N.PRAKASH, J.]
This writ petition has been filed seeking a direction to the
respondents to consider the petitioner's representation dated 17.01.2022.
2. Seeking ordinary leave under the Tamil Nadu Suspension of
Sentence Rules, 1982 (for brevity “the TNSS Rules”) for her brother
Saravanan, who is lodged in the Central Prison-I, Puzhal, the petitioner has
given a representation dated 17.01.2022 and has thereafter, filed the present
writ of mandamus with the above prayer.
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W.P.No.1527 of 2022
3. Heard Mr.M.G.B.Jeyakumar, learned counsel representing
Mr.R.Arunkumar, learned counsel on record for the petitioner and
Mr.R.Muniyapparaj, learned Additional Public Prosecutor appearing for the
respondents.
4. It is seen that in paragraph nos. 3 and 4 of the affidavit filed by
the petitioner, it is stated as follows:
“3. I submit that my own brother S.Saravanan
murdered to his wife Mrs.Mahadevi and he was charged
for the offence U/s 302 of IPC by the Learned VII
Additional Sessions Judge at Chennai and at the
conclusion of trial my own brother S.Saravanan have been
convicted for the offence U/s 304 (part-I) of IPC and
sentenced to undergo 10 years Rigorous Imprisonment and
order to pay fine of Rs.1000/- and in default undergo six
months simple imprisonment by judgment dated
05.03.2018 in S.C.No.306 of 2013. After the conviction
and sentenced by the trial Court my own brother
S.Saravanan have been in prison from 05.03.2018 to still
now.
4. I humbly submit that after the above said
judgment in S.C.No.306 of 2013 dated 05.03.2018 against
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W.P.No.1527 of 2022
my own brother S.Saravanan has filed Criminal Appeal
before this Hon'ble High Court, Madras in Crl.A.No.187 of
2018, which is pending for final hearing.”
5. Thus, from the above extract, it can be seen that the appeal of
Saravanan is pending on the file of this Court in Crl.A.No.187 of 2018.
Therefore, he may not be entitled to ordinary leave under the TNSS Rules in
the light of the authoritative pronouncement of the Constitution Bench of
the Supreme Court in K.M.Nanavati vs. State of Bombay1, the relevant
paragraph of which, is extracted hereunder:
“21. In the present case, the question is limited to the
exercise by the Governor of his powers under Article
161 of the Constitution suspending the sentence during
the pendency of the special leave petition and the
appeal to this court; and the controversy has narrowed
down to whether for the period when this court is in
seizin of the case the Governor could pass the impugned
order, having the effect of suspending the sentence
during that period. There can be no doubt that it is open
to the Governor to grant a full pardon at any time even
during the pendency of the case in this court in exercise
1 AIR 1961 SC 112
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W.P.No.1527 of 2022
of what is ordinarily called “mercy jurisdiction”. Such
a pardon after the accused person has been convicted
by the court has the effect of completely absolving him
from all punishment or disqualification attaching to a
conviction for a criminal offence. That power is
essentially vested in the head of the Executive, because
the judiciary has no such “mercy jurisdiction”. But the
suspension of the sentence for the period when this
court is in seizin of the case could have been granted by
this court itself. If in respect of the same period the
Governor also has power to suspend the sentence, it
would mean that both the judiciary and the executive
would be functioning in the same field at the same time
leading to the possibility of conflict of jurisdiction. Such
a conflict was not and could not have been intended by
the makers of the Constitution. But it was contended by
Mr. Seervai that the words of the Constitution, namely,
Article 161 do not warrant the conclusion that the
power was in any way limited or fettered. In our
opinion there is a fallacy in the argument insofar as it
postulates what has to be established, namely, that the
Governor's power was absolute and not fettered in any
way. So long as the judiciary has the power to pass a
particular order in a pending case to that extent the
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W.P.No.1527 of 2022
power of the Executive is limited in view of the words
either of Sections 401 and 426 of the Code of Criminal
Procedure and Articles 142 and 161 of the Constitution.
If that is the correct interpretation to be put on these
provisions in order to harmonise them it would follow
that what is covered in Article 142 is not covered by
Article 161 and similarly what is covered by Section
426 is not covered by Section 401. On that
interpretation Mr Seervai would be right in his
contention that there is no conflict between the
prerogative power of the sovereign state to grant
pardon and the power of the courts to deal with a
pending case judicially.”
(emphasis supplied)
The aforesaid passage was relied on by a Division Bench of this Court in
K.Rajamanickam and Others vs. State2 which was rendered way back on
03.01.1991.
6. That apart the word “sentence” in TNSS Rules reads as under:
“ “sentence” means a sentence as finally fixed on
appeal or revision or otherwise and includes an aggregate
of more sentence than one. Sentence in default of fine shall
2 2015 (3) MWN (Cr.) 379 (DB)
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W.P.No.1527 of 2022
not be taken into consideration while fixing eligibility for
being released on leave.”
7. A reading of the above definition shows that the convict
prisoner should have been sentenced finally by the appellate Court or
revision court.
8. Therefore, Saravanan, convict prisoner herein, may not be
entitled to ordinary leave under the TNSS Rules. However, it is open to him
to approach the appropriate Court for suspension of sentence and bail under
Section 389 Cr.P.C.
With the above observation, this writ petition stands dismissed. No
costs.
(P.N.P.,J.) (R.H.,J.)
03.02.2022
nsd
P.N.PRAKASH, J.
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W.P.No.1527 of 2022
and
R.HEMALATHA, J.
nsd
To
1. The Secretary to Government,
Home (Prison IV) Department,
Fort St.George,
Chennai – 600 009.
2.The Additional Director General of Prisons,
Thalamuthu Natrajan Maaligai,
II Floor, Gandhi Irwin Road,
Egmore, Chennai – 600 008.
3.The Superintendent of Prisons,
Central Prison-I (Convict),
Puzhal, Chennai – 600 066.
4.The Public Prosecutor,
Madras High Court,
Chennai – 600 104.
W.P.No.1527 of 2022
3.02.2022
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