Madras High Court

Pakiyalakshmi vs State Of Tamil Nadu on 7 December, 2023

Author: M.Sundar

Bench: M.Sundar

                                                                                  W.P(MD)No.28831 of 2023

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                     DATED : 07.12.2023

                                                           CORAM :

                                      THE HONOURABLE MR.JUSTICE M.SUNDAR
                                                     and
                                     THE HONOURABLE MR.JUSTICE R.SAKTHIVEL

                                                  W.P(MD)No.28831 of 2023

                     Pakiyalakshmi                                                    ... Petitioner

                                                               vs.


                     1. State of Tamil Nadu,
                        Rep. by the Secretary to Government,
                        Home (Prison IV) Department,
                        Secretariat, Fort St.George,
                        Chennai – 600 009.

                     2.The Director General of Police and
                       Inspector General of Prisons and Correctional Service,
                       Whannels Road, Egmore,
                       Chennai – 600 008.

                     3.The Deputy Inspector General of Prisons
                       and Correctional Services,
                       Madurai Range, Madurai Central Prison Campus,
                       New Jail Road, Madurai – 625 016.

                     4.The Superintendent of Prison,
                       Central Prison, Palayamkottai.                                 ... Respondents
                                  Petition filed under Article 226 of the Constitution of India praying
                     for issuance of a Writ of Mandamus, to direct the respondents to grant 40
                     days ordinary leave for the petitioner's brother namely Sankaranarayanan

https://www.mhc.tn.gov.in/judis
                     Page No.1 of 27
                                                                                   W.P(MD)No.28831 of 2023

                     (LCT No.2375) aged 60 years S/o.Krishnasamy, who confined at
                     Palayamkottai Central Prison.
                                  For Petitioner                  : Mr.R.Venkatesan
                                  For Respondents                 : Mr.A.Thiruvadi Kumar
                                                                   Additional Public Prosecutor

                                                          ORDER

[Order of the Court was made by M.SUNDAR, J.]

Captioned 'Writ Petition' (hereinafter 'WP' for the sake of brevity)

has been filed in this Court on 04.12.2023.

2. Factual matrix in a nutshell or in other words short facts (shorn

of granular particulars) essential and imperative for appreciating this

order are that WP petitioner's brother (elder brother)

Thiru.Sankaranarayanan son of Thiru.Krishnasamy aged about 60 years

is a convict prisoner now lodged in Central Prison, Palayamkottai and his

Convict Prison number is LCT No.2375; that 'WP petitioner's elder

brother' who is a convict prisoner shall hereinafter be referred to 'said

prison inmate' for the sake of convenience and for the sake of use of

better and refined glossary; that said prison inmate has served more than

23 years of sentence; that a plea was made for 40 days ordinary leave

without escort for the said prison inmate inter-alia on the ground that

https://www.mhc.tn.gov.in/judis

prison inmate's mother (WP petitioner's mother too) who is 85 years old

is seriously ill and the said prison inmate has to make arrangements in

this regard; that this request was made by WP petitioner inter-alia vide 'a

representation dated 10.07.2023' (hereinafter 'said representation' for the

sake of brevity); that the same remains unattended necessitating filing of

the captioned WP in this Court.

3. Issue notice.

4. Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor

accepts notice for all four respondents. Owing to the limited scope of the

captioned WP, with the consent of both sides, main WP was taken up and

heard out.

5. Learned counsel for WP petitioner reiterating the

aforementioned facts (set out as factual matrix in a nutshell) has

submitted that WP petitioner is entitled to 40 days ordinary leave without

escort and it is a dire necessity considering the serious illness of WP

petitioner's (said prison inmate too) 85 year old mother.

https://www.mhc.tn.gov.in/judis

6. In response to the aforementioned submission, learned

Prosecutor very fairly submitted that the ground on which ordinary leave

is sought is not subjected to factual disputation or contestation. Learned

Prosecutor, however, submitted that the request for ordinary leave was

made on 10.07.2023 (as already alluded to supra) and as of 10.07.2023,

Rule 22(3) of 'Tamil Nadu Suspension of Sentence Rules,

1982' (hereinafter 'said Rules' for the sake of convenience and clarity)

was an impediment. Elaborating on this, learned Prosecutor pointed out

that Rule 22(3) of said Rules says that a prison inmate shall be granted a

subsequent spell of ordinary leave only after completion of one year of

imprisonment from the date on which he returns from the last ordinary

leave. Learned Prosecutor submitted that the last ordinary leave spell for

said prison inmate was from 23.10.2022 to 02.12.2022 and therefore, as

of 10.07.2023, one year contemplated/set out in Rule 22(3) of said Rules

had not elapsed.

7. This Court after carefully considering the submissions made on

both sides and after perusing the case file placed before this Court comes

to the conclusion that said prison inmate is entitled to be granted 40

ordinary leave without escort and the reasons are follows:

https://www.mhc.tn.gov.in/judis

(a) Rule 22(3) of said Rules does not come in

the way, as of today, as the one year period

incorporated in Rule 22(3) of said Rules elapsed on

02.12.2023;

(b) The ground on which ordinary leave has

been sought i.e., serious illness of 85 year old mother

of said prison inmate has not been subjected to any

factual disputation or contestation;

adverse notice of prison authorities or in other words,

there is no prison offence against the said prison

inmate;

(d) The conduct of said prison inmate during

the incarceration thus far i.e., for over 23 years has

been blemishless.

8. This Court has repeatedly held that said Rules is a piece of

subordinate legislation made by Executive arm in exercise of rule

making powers inter-alia under Section 432(5) of 'The Code of Criminal

Procedure, 1973 (2 of 1974)' [hereinafter 'Cr.PC' for the sake of brevity

and clarity] and such subordinate legislation which has not gone through https://www.mhc.tn.gov.in/judis

the law making or legislative drill/legislative grind cannot in any manner

abridge much less denude the constitutional powers of this Court.

9. In this regard, we deem it appropriate to say that the principle

that a piece of subordinate legislation cannot abridge much less denude

the constitutional powers of this Court under Article 226 of Constitution

of India was laid down by us in Selvam's case reported vide Neutral

Citation 2023:MHC:4258 of Madras High Court being order dated

15.09.2023 in W.P.No.27137 of 2023 and a scanned reproduction of the

same is as follows:

https://www.mhc.tn.gov.in/judis

https://www.mhc.tn.gov.in/judis

https://www.mhc.tn.gov.in/judis

https://www.mhc.tn.gov.in/judis

https://www.mhc.tn.gov.in/judis

https://www.mhc.tn.gov.in/judis

10. As would be evident from Selvam's case, we have laid down

the principle by respectfully following the ratio laid down by Hon'ble

Supreme Court in Elgar Parishad case i.e., Vernon case [Vernon Vs.

State of Maharashtra and another reported in 2023 SCC OnLine SC

885 : 2023 LiveLaw (SC) 575] and K.A.Najeeb case [Union of India Vs.

K.A.Najeeb reported in (2021) 3 SCC 713]. To be noted, it is captured in

sub paragraph (iii) of paragraph No.8 of Selvam's case.

11. We respectfully follow the recent judgment of Hon'ble

Supreme Court rendered in Benedict's case i.e., [Benedict Denis Kinny

Vs. Tulip Brian Miranda and Others with Prachi Prasad Parab Vs.

State of Maharashtra and Others reported in 2020 SCC Online SC 802]

and the most relevant paragraphs are as follows:

'.....10. From the submissions of the learned counsel for

the parties and pleadings on record the following points arise for

consideration:

10.1. (i) Whether the jurisdiction of the High Court under

Article 226 of the Constitution of India is ousted due to statutory

scheme of Section 5-B of the Mumbai Municipal Corporation

Act?

10.2. (ii) Whether the High Court had no jurisdiction to

https://www.mhc.tn.gov.in/judis

pass an interim or final order, the effect of which is to interdict

the statutory fiction under Section 5-B to the effect that in the

event the caste scrutiny certificate is not submitted within six

months (now twelve months) from the date of election, the

election shall be deemed to have been terminated retrospectively

and the candidate shall be disqualified from being Councillor?

10.3. (iii) Whether the interim order dated 18-8-2017

[Tulip Brian Miranda v. State of Maharashtra, 2017 SCC OnLine

Bom 9997] in Writ Petition No. 2269 of 2017 staying the order

dated 14-8-2017 of the Caste Scrutiny Committee with direction

to Respondents 2 to 4 not to take any action of disqualification as

well as the final judgment dated 2-4-2019 [Kesharben Murji

Patel v. State of Maharashtra, 2019 SCC OnLine Bom 562 :

(2019) 3 Bom CR 742] remanding the matter to the Caste

Scrutiny Committee during which the writ petitioner was held to

be entitled to continue, were the orders beyond jurisdiction of the

High Court under Article 226 and could not have been passed in

view of the statutory scheme of Section 5-B?

10.4. (iv) Whether the interim order of the High Court

dated 22-8-2017 [Sudha Shambhunath Singh v. State of

Maharashtra, 2017 SCC OnLine Bom 9996] passed in Writ

Petition No. 145 of 2018 directing the respondents not to take any

https://www.mhc.tn.gov.in/judis

coercive action against the writ petitioner on the basis of the

Caste Scrutiny Committee's order as well as the final judgment of

the High Court dated 2-4-2019 [Kesharben Murji Patel v. State

of Maharashtra, 2019 SCC OnLine Bom 562 : (2019) 3 Bom CR

742] allowing the writ petition and holding that the writ

petitioner was entitled to continue on her seat, were the orders

beyond jurisdiction of the High Court under Article 226 and

could not have been passed in view of the statutory scheme

delineated in Section 5-B?.....

.......

22.The nature of jurisdiction exercised by the High Courts

under Article 226 came for consideration by this Court in large

number of cases. In Sangram Singh v. Election

Tribunal [Sangram Singh v. Election Tribunal, AIR 1955 SC 425]

, Article 226 of the Constitution of India in reference to Section

105 of the Representation of the People Act, 1951 came for

consideration. Section 105 of the Representation of the People

Act provided that “every order of the Tribunal made under this

Act (Representation of the People Act) shall be final and

conclusive”. Argument was raised in the above case that neither

the High Court nor the Supreme Court can itself transgress the

law in trying to set right what it considers is an error of law on

https://www.mhc.tn.gov.in/judis

the part of the court or tribunal whose records are under

consideration. It was held that jurisdiction of the High Court

remains to its fullest extent despite Section 105. This Court also

held that jurisdiction of the High Court in Article 226 and under

Article 136 conferred on this Court cannot be taken away by a

legislative device. In para 13, the following has been laid down :

(AIR pp. 428-29)

“13. The jurisdiction which Articles 226 and 136 confer entitles the High Courts and this Court to examine the decisions of all tribunals to see whether they have acted illegally. That jurisdiction cannot be taken away by a legislative device that purports to confer power on a tribunal to act illegally by enacting a statute that its illegal acts shall become legal the moment the tribunal chooses to say they are legal. The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior tribunal.

It is a part of the law of the land which cannot be finally determined or altered by any tribunal of limited jurisdiction. The High Courts and the Supreme Court alone can determine what the law of the land is vis-à-vis all other courts and tribunals and they alone can pronounce with authority and finality on what is legal and what is not. All that an inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles https://www.mhc.tn.gov.in/judis

226 and 136. Therefore, the jurisdiction of the High Courts under Article 226 with that of the Supreme Court above them remains to its fullest extent despite Section 105.”

23. A seven-Judge Bench of this Court in Kerala

Education Bill, 1957, In re [Kerala Education Bill, 1957, In re,

AIR 1958 SC 956] had occasion to consider the jurisdiction of

the High Court under Article 226 in reference to a provision in

the Kerala Education Bill, 1957. Clause 33 of the Kerala

Education Bill provided:

“33. Courts not to grant injunction.— Notwithstanding anything contained in the Code of Civil Procedure, 1908, or in any other law for the time being in force, no court shall grant any temporary injunction or make any interim order restraining any proceedings which is being or about to be taken under this Act.”

25. Answering Question 4, this Court held that no

enactment of the State Legislature can take away or abridge the

jurisdiction and power conferred on the High Court under Article

226. The learned counsel appearing for the State of Kerala

submitted before this Court that the Constitution is the

paramount law of the land, and nothing short of a constitutional

amendment as provided for under the Constitution can affect any

https://www.mhc.tn.gov.in/judis

of the provisions of the Constitution, including Article 226. It was

submitted that the power conferred upon the High Courts under

Article 226 of the Constitution is an overriding power entitling

them, under certain conditions and circumstances, to issue writs,

orders and directions to subordinate courts, tribunals and

authorities notwithstanding any rule or law to the contrary. The

Constitution Bench in para 35 has noticed the stand taken on

behalf of the State of Kerala in the following words : (Kerala

Education Bill, 1957, In re case [Kerala Education Bill, 1957, In

re, AIR 1958 SC 956] , AIR p. 987)

“35. … The State of Kerala in their statement of case disowns in the following words all intentions in that behalf:

‘52. Kerala State asks this Honourable Court to answer the fourth question in the negative, on the ground that the power given to High Courts by Article 226 remains unaffected by the said Clause

53. Kerala State contends that the argument that Clause 33 affects Article 226 is without foundation.

54. The Constitution is the paramount law of the land, and nothing short of a constitutional amendment as provided for under the Constitution can affect any of the provisions of the Constitution, including Article 226. The power conferred upon High Courts under Article 226 of the Constitution https://www.mhc.tn.gov.in/judis

is an overriding power entitling them, under certain conditions and circumstances, to issue writs, orders and directions to subordinate courts, tribunals and authorities notwithstanding any rule or law to the contrary.’ ”

24. In exercise of power vested in him by Article 143(1),

the President of India had referred to this Court four questions

for consideration. Question 4, which is relevant for the present

case was to the following effect : (Kerala Education Bill, 1957, In

re case [Kerala Education Bill, 1957, In re, AIR 1958 SC 956] ,

AIR p. 970, para 10)

“10. … ‘…(4) Does Clause 33 of the Kerala Education Bill or any provisions thereof, offend Article 226 of the Constitution in any particulars or to any extent?’ ”

26. This Court expressed its agreement with the

submissions made by the State of Kerala and held that Clause 33

is subject to the overriding provisions of Article 226 of the

Constitution of India. This Court laid down the following :

(Kerala Education Bill, 1957, In re case [Kerala Education Bill,

1957, In re, AIR 1958 SC 956] , AIR p. 987, para 35)

“35. … The learned counsel for the State of Kerala submits that Clause 33 must be read subject to Articles 226 and 32 of the Constitution. He relies on the well known principle of construction that if a https://www.mhc.tn.gov.in/judis

provision in a statute is capable of two interpretations then that interpretation should be adopted which will make the provision valid rather than the one which will make it invalid. He relies on the words “other law for the time being in force” as positively indicating that the clause has not the Constitution in contemplation, for it will be inapt to speak of the Constitution as a “law for the time being in force”. He relies on the meaning of the word “law” appearing in Articles 2, 4, 32(3) and 367(1) of the Constitution where it must mean law enacted by a legislature. He also relies on the definition of “Indian law” in Section 3(29) of the General Clauses Act and submits that the word “law” in Clause 33 must mean a law of the same kind as the Civil Procedure Code of 1908, that is to say, a law made by an appropriate legislature in exercise of its legislative function and cannot refer to the Constitution. We find ourselves in agreement with this contention of the learned counsel for the State of Kerala. We are not aware of any difficulty — and none has been shown to us — in construing Clause 33 as a provision subject to the overriding provisions of Article 226 of the Constitution and our answer to Question 4 must be in the negative.”

27. What has been laid down by the Constitution Bench of

this Court in above case makes it beyond any doubt that the

power under Article 226 of the Constitution overrides any

https://www.mhc.tn.gov.in/judis

contrary provision in a statute and the power of the High Court

under Article 226 cannot be taken away or abridged by any

contrary provision in a statute.

28. Gajendragadkar, C.J. speaking for a Constitution

Bench of this Court in Powers, Privileges & Immunities of State

Legislatures, In re [Powers, Privileges & Immunities of State

Legislatures, In re, AIR 1965 SC 745 : (1965) 1 SCR 413] held

that existence of judicial power in the High Court under Article

226 and this Court under Article 32 postulate the existence of a

right in the citizen to move the Court otherwise the power

conferred on the High Courts and this Court would be rendered

virtually meaningless. In para 129 the following was held : (AIR

p. 787)

“129. If the power of the High Courts under Article 226 and the authority of this Court under Article 32 are not subject to any exceptions, then it would be futile to contend that a citizen cannot move the High Courts or this Court to invoke their jurisdiction even in cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf; otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of the citizens' fundamental rights, and so, in the existence of the said judicial power itself is https://www.mhc.tn.gov.in/judis

necessarily involved the right of the citizen to appeal to the said power in a proper case.”

12. The aforementioned list of authorities rendered by Hon'ble

Supreme Court makes it clear that even a statute which has gone through

legislative drill cannot abridge much less denude the constitutional

powers of a constitutional Court in exercising powers under Article 226

of the Constitution of India. The case on hand is in a much better footing

as we are dealing with a piece of subordinate legislation i.e., said Rules

which has been made without legislative grind or law making drill.

Therefore, we are of the considered but certain view that said Rules

cannot become an impediment for this Court granting leave.

Furthermore, the case on hand is on a better footing in another view of

the matter also. That another view is, on a demurrer assuming that Rule

22(3) of said Rules operates, it still does not come in the way because as

of 02.12.2023, the one year cooling period ingrained in Rule 22(3) of

said Rules had elapsed and therefore, there is no impediment as of today

in grant of leave.

https://www.mhc.tn.gov.in/judis

13. In the typed set placed before us, there is also an order made in

WP petitioner's case with regard to the same prison inmate being order

dated 23.09.2023 in W.P.(MD) No.22254 of 2022 where another Hon'ble

Coordinate Bench has held that orders regarding extension of leave can

be granted only within the four corners of said Rules. This order is

distinguishable on facts as it pertains to extension of leave and not grant

of leave.

14. Be that as it may, even as per law of precedents, the

aforementioned cases, namely, Vernon case, K.A.Najeeb case and

Benedict case were not brought to the notice of Hon'ble Division Bench.

Therefore, going by law of precedents, we respectfully follow the law

laid down by Hon'ble Supreme Court without resorting to reference. To

be noted, if the aforementioned case laws, namely, Vernon case,

K.A.Najeeb case and Benedict case have been placed before other

Hon'ble Coordinate Bench, then a reference would have become

necessary.

15. Hon'ble Supreme Court has repeatedly held that grant of leave

is one of the facets of 'Reformative Theory' of punishment. To be noted,

'Retributive Theory' is now obsolete and anomalous. It is considered as https://www.mhc.tn.gov.in/judis

an ancient and archaic.

16. In Mofil Khan's case [Mofil Khan Vs. State of Jharkhand

reported in (2015) 1 SCC 67], principle of reformative theory was

articulated and elucidated by Hon'ble Supreme Court which is instructive

and we are respectfully following the same.

17. In the course of discussion, learned Prosecutor for the purpose

of completion of discussion drew our attention to an order dated

28.02.2022 made in W.P.No.2768 of 2022 (Chitra's case) [Chitra Vs.

The State rep. by its, The Secretary to Government of Tamil Nadu] by

another Hon'ble Coordinate Bench. We heard learned Prosecutor on

Chitra's case. We also perused the order. Chitra's case also does not

come in the way for the following two reasons:

(i) This is not a case where we are compelling

or directing the Executive to exercise power and grant

leave, on the contrary, we are exercising our powers

under Article 226 of the Constitution of India and

granting leave; and

(ii) This is not a case where recourse is taken to

Rule 40 of said Rules. As already alluded to supra in a

https://www.mhc.tn.gov.in/judis

long line of authorities, recourse to Rule 40 will arise

only when the Government exercise its powers. Here

is the case where this Court is exercising

constitutional powers under Article 226 of the

Constitution of India.

18. In the light of the narrative, discussion and dispositive

reasoning thus far, the following order is made:

18.1 The said prison inmate, namely,

Thiru.Sankaranarayanan son of Thiru.Krishnasamy,

(LCT No.2375), now detained in Central Prison,

Palayamkottai, is granted 40 days leave from

18.12.2023, 10:30 AM to 26.01.2024. To be noted, it

is 40 days ordinary leave without escort;

18.2 The said prison inmate shall surrender in

the office of the fourth respondent on the leave period

elapsing by dusk i.e., (5.30 p.m.) on 27.01.2024

(Saturday);

18.3 The said prison inmate shall appear and

sign before jurisdictional Magistrate (we are informed

https://www.mhc.tn.gov.in/judis

that jurisdictional Magistrate is Judicial Magistrate,

Sattur) everyday in the forenoon;

18.4 The said prison inmate during the period

of leave shall stay either with his sister (WP

petitioner) in Sivakasi at the address given in WP or

with his mother in Sattur and no other place;

18.5 The said prison inmate shall utilize the

leave only for the purpose for which it has been

availed/granted and he shall not partake in any other

activities which is outside the realm of the grounds on

which leave is being granted;

19. Captioned WP is disposed of in the aforesaid manner with the

aforesaid discussion/observation and directives. There shall be no order

as to costs.