Madras High Court
Sathyakala vs The State Rep. By Its on 23 August, 2023
2023:MHC:3911
W.P..No.24902 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.08.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
W.P..No.24902 of 2023
Sathyakala .. Petitioner/
Sister of the detenu
Vs.
1. The State Rep. By its
The Deputy Inspector General of Prison
Coimbatore Zone
Coimbatore – 641 018
2. The Superintendent
Coimbatore Central Prison
Coimbatore – 641 018 ... Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a writ of certiorarified mandamus to call for the records
pertaining to the impugned order bearing No.15623/Tha.Ku.3/2023, dated
01.08.2023 passed by the second respondent and quash the same and
consecutively direct the respondents to grant ordinary leave for 21 days
without escort to the detenu Navaneethakrishnan, son of Rathinasami, aged
about 35 years, bearing Convict No16412 at Central Prison, Coimbatore.
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W.P..No.24902 of 2023
For Petitioner : Ms.S.Lakshmi
for Mr.P.Bakkiyaraj
For Respondents : MrE.Raj Thilak
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
This order will now dispose of the captioned Writ Petition.
2.Factual matrix in the captioned writ petition is that writ petitioner's
brother one Thiru.Navaneethakrishnan, son of Thiru. Rathinasami is a life
convict (Convict No.16412) and he is now lodged in Central Prison,
Coimbatore; that convict prisoner was convicted vide judgment dated
19.02.2013 in S.C.No.103 of 2012 on the file of 'II Additional District and
Sessions Judge, Tiruppur' [hereinafter 'trial Court' for the sake of
convenience and clarity]; that as regards the sentence, life imprisonment
and fine of Rs.1500/- with six months simple imprisonment in the event of
default to pay fine for Section 302 IPC charge and 10 years rigorous
imprisonment and fine of Rs.1500/- with six months simple imprisonment
as default clause qua fine for Section 392 IPC charge is the sentence; that
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W.P..No.24902 of 2023
the conviction and sentence were assailed by way of an appeal in
Crl.A.No.257 of 2013 and the appeal was dismissed on 01.06.2015
confirming the conviction and sentence; that the convict prisoner has now
served 7 years, 4 months and 13 days as of 22.08.2023; that the convict
prisoner has not sought for either emergency leave or ordinary leave until
this day; that writ petitioner (convict prisoner's sister) sent a representation
dated 25.07.2023 seeking 21 days ordinary leave for the convict prisoner
primarily on the ground that convict prisoner's mother has undergone a
surgery, she is unwell and is therefore unable to go over to the prison and
see her son owing to ill-health; that convict prisoner's mother wants to
spend some time with her son saying she is in the evening of her life; that
convict prisoner's mother also wants to partition some immovable
properties in the presence of her children (including convict prisoner); that
this 25.07.2023 representation given by the writ petitioner seeking 21 days
ordinary leave was negatived vide an 'order dated 01.08.2023 bearing
reference No.15623/jF/3/2023 made by the second respondent'
[hereinafter 'impugned order' for the sake of brevity, convenience and
clarity]; that the impugned order has been made primarily owing to Rule
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W.P..No.24902 of 2023
21(b) of 'Tamil Nadu Suspension of Sentence Rules, 1982' [hereinafter 'said
Rules' for the sake of convenience and clarity] which says that convict
prisoners sentenced under Sections 392 to 402 of 'The Indian Penal Code
(45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] are
not eligible for ordinary leave; that assailing the impugned order, captioned
writ petition has been filed in this Court on 16.08.2023.
3. Ms.S.Lakshmi, learned counsel representing the counsel on record
for writ petitioner, in her campaign against the impugned order, adverting to
25.07.2023 representation given by the convict prisoner's sister (writ
petitioner) reiterated the contents of the same (captured supra in factual
matrix narrative) and submitted that other than Rule 21(b) of said Rules,
there is no other impediment for grant of leave. Learned counsel also
emphasized the undisputed obtaining position that the convict prisoner has
already served over seven years of sentence.
4. Issue notice.
5. Mr.E.Raj Thilak, learned State Additional Public Prosecutor
accepts notice for both respondents.
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6. Owing to the limited scope of the captioned writ petition, with the
consent of both sides, main writ petition was taken up and heard out though
the captioned writ petition is listed in the Admission Board today.
7. Learned Prosecutor on instructions submitted that Rule 21(b) of
said Rules comes into play as one of the charges for which 10 years
rigorous imprisonment was handed down to the convict prisoner is for an
offence under Section 392 IPC. Learned Prosecutor also pointed out that
the conviction and sentence was carried to this Court by way of an appeal
vide Crl.A.No.257 of 2013 and this Court vide order dated 01.06.2015
dismissed the appeal confirming the conviction and sentence.
8. We carefully considered the submissions made on both sides. This
Bench is inclined to interfere with the impugned order and accede to the
writ petitioner's request for 21 days ordinary leave for the convict prisoner
and the reasons are as follows:
i) In similar circumstances in the case of Thiru.Akram
Khan vide order dated 19.07.2023 made in W.P.No.21242 of 2023
this Court dealt with Rule 21(b) of said Rules and the most
relevant paragraphs are sub-paragraphs (iii) to (v) of Paragraph 9,
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W.P..No.24902 of 2023
which read as follows:
'iii) The objective behind Rule 21(b) of said
Rules which was made more than 4 decades ago
appears to be possibility of untoward incidents when
the sentence is for offences such as robbery, causing
hurt in committing robbery, decoity etc.,;
iv) To put it in a nutshell, the offence of robbery
and decoity have been put in one basket under Rule
21(b) of said Rules. In the case on hand, as the convict
prisoner has gone on leave on as many as seven earlier
occasions, has surrendered on expiry of leave and
nothing untoward has happened when he was on leave,
we find that this is a fit case to relax the rigour of Rule
21(b) of said Rules;
v) In continuation of the earlier reason, we make it
clear that we are exercising constitutional power and
therefore said Rules being a set of Rules made by the
Executive in exercise of Rule /special orders making
powers under Section 432(5) of 'The Code of Criminal
Procedure, 1973 (2 of 1974)' [hereinafter 'Cr.P.C' for the
sake of brevity and clarity] will not be complete fetters
qua this Constitutional Court, it is always open to this
Court to relax such Rules in suitable cases and this is
one such case;'
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Owing to the factual matrix, the aforementioned view taken by
this Court qua Rule 21(b) of said Rules applies in all fours to the
case on hand.
ii) The convict prisoner has served 7 years, 4 months and
13 days sentence and the sentence as regards Section 392 IPC is
10 years. To be noted, sentence qua Section 302 IPC and 392
IPC are running concurrently and therefore, the convict prisoner
has served nearly 75% of the sentence qua Section 392 IPC
which is in the sweep of Rule 21(b) of said Rules.
iii) The convict prisoner has not availed either ordinary
leave or emergency leave thus far;
iv) There is no prison offence against the convict prisoner;
v) The grounds on which ordinary leave have been sought
for the convict prisoner (by the writ petitioner vide
representation dated 25.07.2023) have not been subjected to
disputation or contestation in the impugned order. The
impugned order merely refers to Rule 21(b) of said Rules and
says that the request for ordinary leave cannot be acceded to
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W.P..No.24902 of 2023
owing to Rule 21(b) of said Rules;
vi) In the light of the view taken by this Court inter alia in
Akram Khan's case (supra) on Rule 21(b) we find that this
impediment will not come in the way for this Court which is
exercising constitutional powers;
vii) Said Rules are a set of Rules made under Section
432(5) of 'The Code of Criminal Procedure, 1973 (2 of 1974)'
[hereinafter 'Cr.P.C' for the sake of brevity and clarity]. Section
432(5) of Cr.P.C can be construed as a Rule making power
conferring / delegating subordinate legislation powers on the
Government and whether placing a bar as regards Sections 392
to 402 IPC convictions alone can be put in a different footing
was adverted to and left open by this Court in another order
being Sangeetha's case vide order dated 09.06.2023 in
W.P.No.17211 of 2023. Most relevant portion in Sangeetha's
case is contained in Paragraph 7 and the same reads as follows:
'7. Before we proceed further, we find that said
Rules have been made by Executive arm of State by
exercise of powers under Section 432(5) of 'The Code
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W.P..No.24902 of 2023
of Criminal Procedure, 1973 (2 of 1974)' [hereinafter
'Cr.PC' for the sake of brevity and clarity]. A careful
perusal of Section 432(5) of Cr.PC brings to light that
it talks about appropriate Government giving
'Directions'. To be noted, such directions can be given
either by way of general rules or by way of special
orders. It is also to be noted that such directions are
qua suspension of sentences and conditions related
thereto. Therefore two pure and pristine legal
questions (a) whether Section 432(5) of Cr.PC can be
construed as Rule making power i.e., Rule making
power conferring / delegating subordinate legislation
powers on the Government and (b) whether placing a
bar as regards Sections 392 to 402 convictions alone
(Sections 392 to 402 broadly stated with Robbery and
pertain to Dacoity) and it is not clear as to why
Robbery and Dacoity alone have been placed in a
different footing for creating a bar as regards grant of
ordinary leave. Prima facie, it appears to be law and
order issues that prevailed more than four decades ago
but the scenario has changed drastically which means
this provision may have become anachronistic.
However considering the trajectory the matter has
taken, we leave these two questions open for being
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W.P..No.24902 of 2023
considered in another matter where such an issue
arises, for abundant specificity, we make it clear that
we are not expressing any view or opinion on these two
pure and pristine questions of law in this order but we
shall be embarking upon a legal drill in this regard in
another matter in the days to come.'
As subordinate legislation cannot abridge constitutional powers as
repeatedly held by Hon'ble Supreme Court, we continue to leave open the
aforementioned question in Sangeetha's case and dispose of the captioned
matter.
9. This Court having made an adumbration of the reasons i.e.,
dispositive reasoning for interfering with the impugned order, the following
order is made:
a) impugned order dated 01.08.2023 bearing reference
No.15623/jF/3/2023 made by the second respondent is set
aside;
b) the convict prisoner is granted 21 days ordinary leave
with escort (to be noted, we say 'with escort' as this is the first
time convict prisoner is going on leave) . We make it clear that
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W.P..No.24902 of 2023
strength of the escort will be at the discretion of the respondents
depending on the threat perception;
c) 21 days ordinary leave will be from 28.08.2023
(Monday) 10.30 AM to 18.09.2023 (Monday) 05.30 PM ;
d) The convict prisoner shall surrender in the office of the
second respondent on 18.09.2023 (Monday) by dusk i.e., by
05.30PM.
Captioned writ petition disposed of in the aforesaid manner. There
shall be no order as to costs.
(M.S.,J.) (R.S.V.,J.)
23.08.2023
Index : Yes
Neutral Citation : Yes
gpa
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W.P..No.24902 of 2023
M.SUNDAR, J.,
and
R.SAKTHIVEL, J.,
gpa
To
1. The Deputy Inspector General of Prison
Coimbatore Zone
Coimbatore – 641 018
2. The Superintendent
Coimbatore Central Prison
Coimbatore – 641 018
3. The Public Prosecutor
Madras High Court, Chennai
W.P..No.24902 of 2023
23.08.2023
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