Madras High Court
A.Rahamath Nisha vs The State Represented By Its on 3 February, 2023
W.P.No.853 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.02.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
W.P.No.853 of 2023
A.Rahamath Nisha
W/o.N.S.Abdul Hakkim .. Petitioner
Vs.
1. The State represented by its
The Secretary to Government of Tamil Nadu
Department of Home
Fort St. George
Chennai – 600 009
2. The Deputy Inspector General of Prison
Chennai Range
Chennai – 600 008
3. The Deputy Inspector General of Police
Coimabtore Range
Coimbatore – 641 018
4. The Superintendent
Puzhal -1
Central Prison
Chennai – 600 066
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5. The Superintendent
Central Prison
Coimbatore – 641 018 .. Respondents
Writ petition filed under Article 226 of the Constitution of India
directing the respondents to grant ordinary leave for three months without
escort to the detenu N.S.Abdul Hakkim, son of Syed Mohammed, aged
about 45 years, Convict No.4662, detained at Central Prison, Puzhal,
Chennai.
For Petitioner : Ms.S.Lakshmi
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.NIRMAL KUMAR.J,]
Read this in conjunction with and in continuation of earlier
proceedings made in the previous listings on 25.01.2023 and 02.02.2023,
which read as follows:
'Proceedings dated 25.01.2023
The nucleus of the captioned writ petition is leave for life
convict Mr.N.S.Abdul Hakkim, who is serving life sentence in
Central Prison, Puzhal. The wife of the life convict has given a
representation dated 04.01.2023 interalia highlighting the poor
health of the convict prisoner. To be noted the convict prisoner has
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undergone a surgery interalia for Scattered Multinucleated Tumor
Giant Cells in the Brain.
2.It is not necessary to dilate more on this as in response to
the articulation of the above facts by Dr.S.Manoharan, learned
counsel for the petitioner, Mr.R.Muniyapparaj, learned Additional
Public Prosecutor submits that representation dated 04.01.2023 is
under active consideration and a decision by the first respondent is
in the anvil. Let the decision be taken before next listing.
3.Though obvious, it is made clear that it is open to the
petitioner or any other kin/friend of the convict prisoner to move for
emergency leave between now and the next listing [if need arises].
If such emergency leave is sought for, the same shall be considered
on its own merits and in accordance with law by all concerned.
4.List the captioned Writ Petition on 30.01.2023.'
''Proceedings dated 02.02.2023
Read this in conjunction with and in continuation of
earlier proceedings made in the listing on 25.01.2023.
2. Today, Ms.S.Lakshmi, learned counsel for writ
petitioner and Mr.R.Muniyapparaj, learned State Additional
Public Prosecutor for all the respondents are before us.
3.Adverting to earlier proceedings dated 25.01.2023,
both sides submit that six days emergency leave was granted
to the convict prisoner. As regards the leave application,
learned State Additional Public Prosecutor submits that the
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process of taking a decision on the application is all but over
and he will be able to report on the same tomorrow. Request
for listing tomorrow acceded to.
List tomorrow i.e., 03.02.2023.'
2. The petitioner, wife of the Convict N.S.Abdul Hakkim, sent a
representation to the Prison authorities seeking three months ordinary leave
without escort for continuing his medical treatment. Earlier, the convict got
a history of brain hypodensity in the left frontal lobe and temporal lobe and
is seriously suffering with brain ailments.
3. The petitioner was informed that petitioner's husband suddenly
become unconscious and he was taken to Stanley Hospital by prison
authorities where he was advised for general check up. The doctors therein
had referred the convict for MRI scan and found that there is a possibility of
brain tumour Grade IV stage called Glioblastoma and advised for biopsy.
Thereafter, the convict underwent biopsy on 26.12.2022.
4. In support of her contention, the petitioner has produced the
medical records dated 12.12.2022 and 28.12.2022. Scanned reproduction of
the reports are as follows:
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She had also produced the photograph of her husband while taking
treatment. Due to the extraordinary situation, the prison authorities granted
leave from 29.01.2023 to 05.02.2023. In the meanwhile, the leave petition
of the petitioner can be decided. On enquriy, the petitioner was informed
that the prison authorities forwarded their recommendation to the first
respondent and were awaiting orders. Scanned reproduction of the order is
as follows:
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5. Mr.R.Muniyapparaj, learned Additional Public Prosecutor,
submitted that considering the convict's serious health condition, he was
granted leave for six days on 29.01.2023 upto 05.02.2023. In the
meanwhile, the petitioner's representation with medical records was
considered. Considering the health condition of petitioner's husband, the
prison authorities forwarded a positive report, recommending the
petitioner's husband to take further treatment considering the sufferings
and his health condition. The file is under circulation and yet to receive
orders.
6. Considering the submissions, when the case was taken up at
11.30am, learned Additional Public Prosecutor sought for a small
accommodation, since orders are yet to be passed by the concerned and
thereafter, again when the case was taken up at 01.00 pm, learned
Additional Public Prosecutor submitted that orders yet to be received.
Further submitted that the file is in circulation and he is unable to confirm
about the status of the file.
7. From the medical records of the Stanley Hospital dated 12.12.2022
and 28.12.2022 and the photograph produced by the petitioner, it is seen
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that petitioner's husband is suffering from serious illness and his heath
condition is deteriorating, he needs immediate medical care.
8. The petitioner sent representation as early as on 04.01.2023 and
when the case was taken up earlier on 25.01.2023, it was assured that
appropriate orders would be passed soon. Thereafter, when it was taken up
on 02.02.2023, the status remains the same. This will be clear from the
earlier proceedings extracted and reproduced supra.
9. Today same condition prevails. Considering the urgency and
emergent situation, though 90 days leave has been sought, this Court is
inclined to initially grant leave for a period of 30 days and thereafter,
depending on the medical advise and doctor's recommendation, the leave
can be extended. To be noted, we are informed that emergency leave
granted by the authorities elapses on 05.02.2023. 30 days leave which we
are granting now is for a period from 06.02.2023 to 07.03.2023.
10. The petitioner had already been granted leave with escort. The
only grievance of the petitioner is that family members are unable to freely
interact and have access with the convict. It is made clear that strength of
the escort would be decided by the authorities depending upon the
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prevailing requirement. The only relief to be given is that immediate family
members shall be permitted to meet the convict without any restriction.
Considering the extraordinary situation, this Court grants exemption under
extraordinary circumstances in the light of Rule 20(vii) read with Rule 40
of the Tamil Nadu Suspension of Sentence Rules, 1982.
11. It is open to seek extension of leave depending on the medical
requirement.
12. Learned Additional Public Prosecutor submits that the petitioner's
husband is a convict, who was convicted by judgment dated 01.08.2007 in
S.C.No.2 of 2000 by the learned Additional Sessions Judge II, Coimbatore
against which the petitioner filed an appeal, the appeal was dismissed by
this Court and thereafter, the appeal preferred before the Apex Court in
S.L.P No.1205 to 1208 of 2011 is pending.
13. This Court in a similar situation by order dated 29.08.2022 in
W.P.No.11939 of 2022 granted leave in a case where appeal was pending
before the Apex Court and despite the objection of the Public Prosecutor
that as per Rule 35 of the Tamil Nadu Suspension of Sentence Rules, 1982,
the detenu is entitled to such leave. This Court had further held that the
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Government is empowered as per Rule 40 of the Tamil Nadu Suspension of
Sentence Rules, 1982 and the powers of the Government cannot be curtailed
and exemption can be granted under extraordinary circumstances. Relevant
portion of the order is contained in paragraph 3 and 6 and the same read as
follows:
“3. The Respondents, by filing a counter affidavit,
opposed the grant of leave to the detenu on the ground that the
detenu has not completed requisite number of years of
imprisonment to avail the benefit of leave sought for by him and
that the matter is pending before the Hon'ble Supreme Court
and therefore he is not entitled for the leave sought for by him,
as per Rule 35 of the Tamil Nadu Suspension of Sentence Rules,
1982 (in short 'the TNSS Rules, 1982”).
6. A Medical report of the detenu from the Kauvery
Hospital, Trichy dated 09.08.2022 has been produced before
this Court and a perusal of the same would go to show that the
convict is suffering from Varicose vein and he has to undergo
surgery. Though the facts narrated above are not in dispute,
Rule 20 (vii) of the Rules will have to be looked into in a
harmonious way, which specifically contemplates a provision
"any other extraordinary reasons;" to consider the grant of
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leave, if the Court finds justification or extraordinary reason.
That apart in terms of Rule 40 of the said Rules, Government is
also empowered to consider and grant exemption under
extraordinary circumstances and the powers cannot be curtailed
in the light of Rule 20 (vii) r/w Rule 40.”
14. Hence the petitioner husband N.S.Abdul Hakkim, son of Syed
Mohammed, Convict No. 4662 is grated 30 days leave for medical
treatment from 06.02.2023 to 07.03.2023 with the same conditions
imposed by the Superintendent of Central Prison – I, Puzhal, Chennai vide
order dated 29.01.2023.
15. On expiry of leave, the convict prisoner shall surrender before the
Central Prison, Puzhal.
With the above observation, this writ petition stands disposed of. No
costs. List this matter on 08.03.2023 for reporting compliance.
(M.S.,J.) (M.N.K.,J.)
03.02.2023
Index : Yes / No
Neutral Citation : Yes / No
Issue order copy today
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To
1. The Secretary to Government of Tamil Nadu
Department of Home
Fort St. George
Chennai – 600 009
2. The Deputy Inspector General of Prison
Chennai Range
Chennai – 600 008
3. The Deputy Inspector General of Police
Coimabtore Range
Coimbatore – 641 018
4. The Superintendent
Puzhal -1
Central Prison
Chennai – 600 066
5. The Superintendent
Central Prison
Coimbatore – 641 018
6. The Public Prosecutor
High Court, Madras.
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M.SUNDAR, J.,
and
M.NIRMAL KUMAR, J.,
gpa
W.P.No.853 of 2023
03.02.2023
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