Madras High Court
Shanmugavalli vs The Superintendent Of Prison on 26 October, 2022
WP(MD)No.24205 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.10.2022
CORAM
THE HON'BLE MRS JUSTICE J. NISHA BANU
AND
THE HON'BLE MR JUSTICE N. ANAND VENKATESH
W.P.(MD)No.24205 of 2022
Shanmugavalli ... Petitioner
Vs.
1.The Superintendent of Prison,
Madurai Central Prison,
Madurai - 16.
2.The Inspector of Police,
Avanaiyapuram Police Station,
Madurai,
Madurai District. ...Respondents
PRAYER: Petition - filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus, to call for the records relating to
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the impugned order passed by the first respondent by his proceedings No.
16623/Taku 2/ 2022, dated 29.09.2022 and to quash the same as illegal and
consequently, direct the first respondent to grant one month ordinary leave
under the provisions of the Tamil Nadu Suspension of Sentence Rules 1982,
to the petitioner husband namely, Chinna Mani, C.P.No.5991, presently
logged in Prison, Madurai.
For Petitioner : Mr.K.Mahendran
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
This Writ Petition has been filed challenging the impugned
proceedings of the first respondent, dated 29.09.2022, wherein the ordinary
leave sought for by the petitioner, who is the wife of the detenu, was
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WP(MD)No.24205 of 2022
rejected by the first respondent on the ground that the appeal is pending
before the Apex Court in Criminal Appeal No.488 of 2020 and therefore,
there is a bar under the Tamil Nadu Suspension of Sentence Rules, 1982.
2. The learned counsel for the petitioner submitted that the first
respondent went wrong in rejecting the ordinary leave sought for, mainly on
the ground that the appeal is pending before the Apex Court. According to
the learned counsel for the petitioner, such pendency of appeal by itself is
not a ground to reject the leave. To substantiate his submissions, the learned
counsel relied upon the judgment passed by this Court in W.P.(MD)
No.8089 of 2013 in Pooranam Vs. The Superintendent, Central Prison,
Madurai, dated 20.08.2013. The learned counsel also relied upon the
judgment passed in W.P.(MD) No.8300 of 2015 in Murugeswari and
another Vs. The State of Tamil Nadu and others, dated 18.08.2015,
wherein, the earlier judgment was followed by this Court.
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3. The learned counsel for the petitioner by placing reliance on
the above two judgments submitted that the facts in the above case is very
similar to the facts of the case on hand. That apart, this Court had directed
the Additional Director General of Prisons and the Superintendent of All
Central Prisons and Special Prisons for Women, to grant such leave in
accordance with the Rules, even in cases where appeal is pending before the
Apex Court.
4. Per contra, the learned Additional Public Prosecutor
appearing on behalf of the respondents submitted that the contention raised
by the learned counsel for the petitioner is directly covered by the latest
judgment of this Court in L.Wasib Khan Vs. The State rep. by its Deputy
Inspector General of Prisons (Chennai Range) Gandhi Irwin Road,
Egmore, Chennai and others reported in 2022-1-L.W. (Crl.) - 416. The
learned Additional Public Prosecutor also submitted that once an appeal has
been filed before the Apex Court and the same is pending, the respondents
do not have the right or jurisdiction to grant leave to the detenu and if at all
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WP(MD)No.24205 of 2022
the detenu requires any leave / parole, the detenu has to only approach the
Apex Court and the detenu cannot be permitted to knock the door of this
Court.
5. We have carefully considered the submissions made on
either side and the judgment cited by them.
6. The judgments that were brought to the notice of this Court
by the learned counsel for the petitioner did not deal with the earlier
observations made by the Apex Court in Manoharan Vs. State of Tamil
Nadu, wherein the Apex Court came down heavily on the Government for
granting leave during pendency of appeal before the Apex Court. This was
noted in the judgment that was cited by the learned Additional Public
Prosecutor and for proper appreciation, the relevant portions in the
judgment are extracted hereunder :-
"9 Now, coming to reason (b) for rejection
of leave to Wasib Khan, viz., pendency of appeal
before the High Court, this issue is no longer res
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integra in the light of the authoritative
pronouncement of the Constitution Bench of the
Supreme Court in K.M.Nanavati vs. State of
Bombay [AIR 1961 SC 112] and in view of the
definition of the word ?sentence? in Rule 2 of the
Sentence Suspension Rules.
10 Now, let us examine as to what the
Supreme Court has held in Nanavati (supra). The
paragraph relevant for our discussion is 21 and the
same reads thus:
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 of what is ordinarily called mercy
jurisdiction. Such a pardon after the accused person
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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
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extent the 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. State [2015 (3) MWN (Cr.) 379
(DB)] which was rendered way back on 03.01.1991.
11. Sections 426 and 401 of Cr.P.C. 1898, are
in pari materia with Sections 389 and 432
respectively of Cr.P.C. 1973. The legal principle that
has been set out in Nanavati (supra) is that when the
appellate Court has the power to grant suspension
of sentence and bail, pending appeal, the executive
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power of the State cannot extend to grant parole or
leave or suspension of sentence. Pertinent it is to
state that the Sentence Suspension Rules has been
framed under Section 432(5) Cr.P.C. Further, in
consonance with the law laid down by the Supreme
Court in Nanavati (supra), the definition of the word
sentence in Rule 2(4) of the Sentence Suspension
Rules has been designed as under:
(4) sentence means a sentence as finally fixed on
appeal or revision or otherwise and includes an
aggregate of more sentence than one. Sentences in
default of fine shall not be taken into consideration
while fixing eligibility for being released on leave.
(emphasis supplied)
12.Superadded, during the hearing of the case
in Manokaran vs. State of Tamil Nadu [Crl.A. No.
866 of 2002] on 01.10.2002, it came to the notice of
the Supreme Court that in the State of Tamil Nadu,
the convict prisoners were being granted
parole/leave during the pendency of their appeal.
This was frowned upon by the Supreme Court and
the Joint Secretary to the Government was
summoned. Apposite it is to extract the
observations of the Supreme Court in the said order
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dated 01.10.2002:
Mr.J.A. Syed Abdul Khader, Joint Secretary
to Government of Tamil Nadu, Home Department,
Chennai, is present in terms of the earlier orders of
this Court. Mr. Khader regrets that unfortunately a
practice has grown in the State of Tamil Nadu to act
in the fashion as it has been effected in the matter
under consideration. Mr. Khader, however, assures
this Court that in future, the State Government
would act strictly according to the requirements of
the statute and not de hors. The question of
continuity of there being any practice being
followed henceforth would not arise and the same
has been discarded by the State Government.
13. Following this, the office of the
Additional Director General of Prisons, issued an
Office Memo No.43880/PS4/2002 dated 21.10.2002
which reads as under:
The Superintendent is informed that the Supreme
Court of India in C.A. No.866/2002, has observed
that the practice being following in this State for
granting leave to prisoners even for short duration
during the pendency of their appeal is not in
accordance with Tamil Nadu Suspension of
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Sentence Rules, 1982 and it is also contrary to the
Constitution Bench judgment of Supreme Court in
K.M. Nanavati vs. State of Bombay AIR 1961 SC
112. The Supreme Court of India has therefore
ordered that in future no such short term release
should be made by the competent authority without
informing the Court in which the prisoners appeal is
pending and that this order of the Court should be
scrupulously followed in future.
2. In this connection, the attention of the
Superintendent is invited to Government letter no.
66517/Prison.V/2000~15, Home Department dated
20.06.2002 communicated in this office endt.No.
38245/PS4/2000 dated 04.08.2002 wherein the
Government have clarified that for suspension of
sentence of a convicted person whose appeal is
pending, he has to approach only the Appellate
Court or High Court.
3. The Superintendent/Deputy Inspector
General of Prisons should therefore act in
accordance with the above orders of the Supreme
Court of India and should desist from releasing any
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prisoner on emergency or ordinary leave when his
appeal is pending before the appropriate Court
without prior permission of the Court. If any
violation is noticed in this regard, the
Superintendent concerned will be liable for
disciplinary action.
4. The receipt of this memo should be
acknowledged.
BHOLA NATH
Additional Director General of Prisons
14. In view of the above, Wasib Khan cannot
be granted leave under the Sentence Suspension
Rules and therefore, the second reason given in the
impugned order stands upheld."
7. It is clear from the above that there was an earlier practice
whereby grant of parole/leave was considered by the Jail Superintendents,
even during the pendency of the appeal before the Apex Court. However,
when this practice was brought to the notice of the Apex Court, the Apex
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Court got an undertaking from the Government that they will henceforth
stop the practice. Accordingly, an office memo was also issued by the
Assistant Director General of Prisons, on 21.10.2022. In view of the same,
this Court exercising its jurisdiction under Article 226 of the Constitution of
India, cannot issue a direction to the respondents which will go as against
the undertaking given by them before the Apex Court. Issuing such
directions, will not augur well for judicial discipline. Hence, we are
inclined to follow the Division Bench judgment of this Court in L.Wasib
Khan's case, stated supra.
8. In the light of the above discussion, we do not find any
ground to interfere with the impugned proceedings of the first respondent
and accordingly, this Writ Petition stands dismissed. No costs.
(J.N.B.,J.) (N.A.V.,J.)
26.10.2022
Index : Yes/No
Internet : Yes
rm
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WP(MD)No.24205 of 2022
To:
1.The Superintendent of Prison,
Madurai Central Prison,
Madurai - 16.
2.The Inspector of Police,
Avanaiyapuram Police Station,
Madurai,
Madurai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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WP(MD)No.24205 of 2022
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
rm
W.P.(MD)No.24205 of 2022
26.10.2022
https://www.mhc.tn.gov.in/judis
