Madras High Court
Siraj Nisha vs The State Represented By Its on 13 May, 2022
W.P(MD) No.13301 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the order Date of Pronouncing the order
04.07.2022 19.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
and
THE HONOURABLE MRS.JUSTICE R.HEMALATHA
W.P.(MD) No.13301 of 2022
and
WMP(MD) Nos.9444 & 9446 of 2022
Siraj Nisha ... Petitioner
-vs-
1.The State Represented by its,
Secretary to the Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai.
2.The Superintendent of Police,
Central Prison, Madurai.
3.The Superintendent of Police,
O/o. The Superintendent of Police,
Surveyor Colony, K.Pudur,
Madurai – 625 007. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India,
to issue a writ of Certiorarified Mandamus calling for the records
pertaining to the impugned order passed by the second respondent vide
his proceedings in No.7479/Thagu.2/2022, dated 13.05.2022 quash the
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W.P(MD) No.13301 of 2022
same as illegal and consequently directing the second respondent to grant
emergency leave (Parole) to the petitioner's son namely Ibrahimsha,
S/o.Mohammed Hanifa, Convict Prisoner (C.P) No.5830 now confined at
Central Prison, Madurai, for a period of three weeks by considering her
representation dated 06.05.2022.
For Petitioner : Ms.A.Rajini
For Respondents : Mr.A.Thiruvadi Kumar,
Additional Public Prosecutor
ORDER
(Made by P.N.PRAKASH, J.)
This writ petition has been filed challenging the notice dated
13.05.2022 and for a direction to the second respondent to grant E.L.
(Parole) to the petitioner's son for a period of three weeks.
2. The minimum facts that are required for deciding this writ
petition are as under:-
2.1 The convict prisoner Ibrahimsha, (C.P) No.5830, who is
presently lodged in Central Prison, Madurai, was convicted and
sentenced on various grounds of imprisonment in S.C.No.147 of 2015 on
06.02.2019, the maximum being imprisonment for life for the offence
under Section 302 IPC.
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W.P(MD) No.13301 of 2022
2.2 On appeal, the conviction and sentences were confirmed by a
Division Bench of this Court in Crl.A.(MD) No.103 of 2019 on
25.03.2022.
2.3 The petitioner, who is the mother of the said convict prisoner,
addressed a representation seeking emergency leave for her son on the
ground that she is very sick and may not live long. The said leave
application has been rejected by the Superintendent of the Central Prison,
Madurai, on 13.05.2022, which order is impugned herein.
2.4 The leave application has been rejected on the short ground
that, there are other cases pending against the convict prisoner and hence,
under Rule 35 of the Tamil Nadu Suspension of Sentence Rules, 1982,
(for brevity “the Suspension of Sentence Rules”) leave cannot be granted
to him.
3. The Superintendent of Prisons has filed a counter-affidavit,
wherein, in paragraph No.4, it is stated as follows:-
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W.P(MD) No.13301 of 2022
“4. With regard to the averments contained in
Paragraphs No.4, 6 and 7 of the affidavit, it is submitted that
previously the petitioner's son Life Convict Prisoner No.5830
Ibrahimsha S/o.Mohammed Hanifa has been remanded to
Judicial custody concerned in Vilakkuthoon Police Station
Crime No.803/2015 u/s 147, 148, 302, 120(b), 201, 212 and
3 of Explosive Act which is still pending in SC No.426/2018
before the VI Additional District Sessions Judge, Madurai.
The next date of hearing is 20.07.2022. Moreover, he also
remanded to Judicial custody concerned in
Subramaniyapuram Police Station Cr No.268/2018 u/s 457
IPC and 380 IPC and the same is pending before the Judicial
Magistrate Court No.IV, Madurai. The Remand period has
been extended till 11.07.2022. Therefore, as narrated in the
paragraph No.2 of this affidavit, the petitioner's son is not
eligible for granting Emergency Leave and Ordinary Leave
as per the provisions of Tamil Nadu Suspension of Sentence
Rules, 1982.”
4. Assailing the impugned order, Ms.Rajini, learned counsel for
the petitioner, placed very strong reliance on an earlier order dated
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W.P(MD) No.13301 of 2022
11.01.2018, which was passed by a Division Bench of this Court in
Banumathi v. The Chief Secretary to the Government, Union of
Puducherry, (H.C.P.No.2340 of 2017).
5. This Court carefully perused the above said order. In that case,
the question before the Division Bench was the applicability of Rule 631
of the Pondicherry Prison Rules, 1969. Unfortunately, it was not brought
to the notice of the said Division Bench that the Government of
Pondicherry, vide G.O.Ms.No.75, Home Department, dated 02.11.1987,
had passed the Pondicherry Suspension of Sentence Rules, 1982 in
supersession of Rules 594 to 636 of the Pondicherry Prison Rules, 1969.
Therefore, much reliance cannot be placed upon the order of this Court in
Banumathi (supra).
6. On the contrary, a Division Bench of this Court, in
S.Santhosam v. State by Secretary to Government, [2022 (3) CTC 689],
in which one of us (PNPJ) was a member, has discussed in detail, the
scope and ambit of Rule 35 of the Suspension of Sentence Rules. It may
be apposite to extract hereunder paragraph Nos.12 to 15 of the said
decision.
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W.P(MD) No.13301 of 2022
“12. The objective behind formulating the Sentence
Suspension Rules is that a convict prisoner should not be
dehumanized by being kept in complete incarceration,
without being provided a ventilator for reformation. The idea
of sentencing a person to undergo imprisonment is not only
to punish him for the offence committed by him, but also to
ensure that he turns a new leaf. One way of promoting
reformation is to permit convict prisoners to go on leave, off
and on, to spend time with their families and return to the
prison rejuvenated. However, be it noted that a convict
prisoner does not have a fundamental right, much less a
right, for temporary release. Rule 3 of the Sentence
Suspension Rules makes this clear when it states that leave
cannot be claimed as a matter of right and that it is only a
concession granted to the prisoner.
13. In the aforesaid backdrop, we now propose to
analyse Rule 35 of the Sentence Suspension Rules which
reads as follows:
"35. Pending cases:
No prisoner on whom a case is pending trial shall
be granted leave."
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W.P(MD) No.13301 of 2022
14. What is the raison d'etre behind Rule 35 of the
Sentence Suspension Rules?
15. If a convict prisoner has, to his credit, another
criminal case in which he is facing trial, a duty is cast upon
the prison authorities to produce him before the trial Court
from time to time. This is limpid from Rule 832 of the Tamil
Nadu Prisons Rules, which reads as under:
"832. Production before Court:-
(1) The duty of ascertaining the time at which a
prisoner committed to the Sessions is to be produced
before the Sessions Court, and of providing the necessary
escort for this purpose, rests with the police.
(2) The Superintendent is responsible for the
production in Court, at the appointed time, of a prisoner
remanded pending a magisterial inquiry or trial, and
shall make suitable arrangements with the Police for the
provision of the necessary escort. When possible, a
prisoner shall be conveyed to and from the Court in a
special conveyance.
(2A) If a prisoner remanded pending a magisterial
enquiry or trial refuses to attend the Court at the
appointed time or resists endeavour to produce him or
attempts to evade his production before the Court such
minimum force as may be considered necessary by the
Superintendent may be used to encounter such resistance
of the accused so as to produce him before the Court
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W.P(MD) No.13301 of 2022
which has directed the production of the accused.
(3) A receipt in Form No.60 shall be obtained from
the senior police officer of the escort whenever a
prisoner, whether committed to the Sessions or under
remand, is made over to the charge of such police officer
for production in Court.
(4) The police are responsible for the safe custody
of any prisoner committed to their charge under the
preceding sub rule of this rule till he is returned to the
prison or discharged from custody in due course of law. It
is for the police to decide whether such prisoner shall be
handcuffed or not.
(5) When an undertrial or remand prisoner has to
be brought back to the prison even in the event of his
acquittal or discharge, the senior police officer of the
escort should be informed of the fact and the receipt in
form No.61 substituted.
(6) When female undertrial or remand prisoners
are taken from Courts to prisons or vice versa,they shall
be provided with conveyance where the distance to be
traversed by them exceeds 1.6 k.m. Conveyances may
also be provided for the shorter distances in cases in
which, for reasons of health or custom or other valid
reason failure to make such provision would cause undue
hardship to them."
If such a convict prisoner is already on bail in that case, the
trial Court would ensure his attendance by issuing a
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W.P(MD) No.13301 of 2022
Prisoner’s Transfer Warrant under Section 267 Cr.P.C. If the
convict prisoner is not on bail in that case, the trial Court
would remand him to custody under Section 309 Cr.P.C. with
a direction to the prison authorities to produce him on a
particular date. Thus, a convict prisoner who is facing trial in
a Court of law, is kept in the custody of the prison authorities
under the orders of the Court for that case. It would,
therefore, be impermissible for the executive to circumvent a
judicial order by releasing the prisoner on leave. That would,
ex facie, amount to an interference in the administration of
justice by the Court. It would also fall foul of the principle of
separation of powers enshrined in Article 50 of the
Constitution of India. Rule 35 of the Sentence Suspension
Rules, thus, strikes a balance. The executive power to
suspend a sentence by granting leave is unavailable qua a
person facing trial before a competent Court.
7. That apart, Rule 3 of the Suspension of Sentence Rules, clearly
states that leave cannot be claimed as a matter of right. It is a concession
granted to a prisoner. Therefore, a mandamus cannot be issued for
enforcing a concession. In the judgment of the Supreme Court in Home
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W.P(MD) No.13301 of 2022
Secretary (Prison) & Ors., v. H.Nilofer Nisha, [(2020) 14 SCC 161], in
paragraph No.26, it was 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. The court cannot
exercise these powers though once the powers are exercised,
the Court may hold that the exercise of powers is not in
accordance with rules.”
8. In the result, this writ petition fails and is accordingly dismissed
as being devoid of merits. No costs. Consequently, connected
miscellaneous petitions are closed.
[P.N.P., J.] [R.H., J.]
19.07.2022
Index : Yes / No
Internet : Yes / No
pkn
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W.P(MD) No.13301 of 2022
To:
1.The Secretary to the Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai.
2.The Superintendent of Police,
Central Prison, Madurai.
3.The Superintendent of Police,
O/o. The Superintendent of Police,
Surveyor Colony, K.Pudur,
Madurai – 625 007.
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W.P(MD) No.13301 of 2022
P.N.PRAKASH, J.
and
R.HEMALATHA, J.
pkn
Pre-Delivery Order
W.P.(MD) No.13301 of 2022
19.07.2022
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