Madras High Court
Mehar Nisha vs The Principal Secretary To ... on 13 July, 2023
W.P.No.20772 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.07.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
W.P.No.20772 of 2023
Mehar Nisha
W/o.Rifayudheen .. Petitioner
Vs.
1. The Principal Secretary to Government
O/o. The Principal Secretary to Government
Home (Prison IV) Department
Secretariat
St.George Fort, Chennai.
2. The Additional Director General of Prison
O/o. The Additional Director General of Prison
Whannels Road,
Egmore, Chennai.
3. The Superintendent of Central Prison
Puzhal Central Prison
Chennai. ..Respondents
Petition filed under Article 226 of the Constitution of India praying
writ of mandamus directing the respondents to release the petitioner's
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W.P.No.20772 of 2023
husband prematurely by considering the representation dated 25.04.2023.
Since the petitioner's husband convicted by the Sri Lankan Court to life
sentence, thereafter the petitioner's husband was brought to India and jailed
him in Puzhal Central Prison. Under the Joint declaration between India
and Sri Lanka, he was transferred to India. But in Indian Act, the alleged
offence are maximum sentenced only to 10 years. Now the petitioner's
husband languishing in Prison for more than 10 years inside the prison
which cause severe injustice to the petitioner's husband.
For Petitioner : Mr.S.M.A.Jinnah
For Respondents : Mr.E.Raj Thilak
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
In the captioned writ petition, Mr.S.M.A.Jinnah, learned counsel on
record for writ petitioner on a videoconferencing platform and Mr.Rawthar
Nainar, learned counsel in the physical Court (to be noted, this is hybrid
hearing) are before us.
2. Learned counsel draws our attention to a 'representation dated
25.04.2023' [hereinafter 'said representation' for the sake of convenience
and clarity] seeking adaptation of sentence of punishment in the nature of
premature release for her spouse Mr.Rifayudheen [hereinafter 'convict
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W.P.No.20772 of 2023
prisoner' for the sake of convenience and clarity], who remains incarcerated
for over 10 years in Puzhal Central Prison, Chennai. To be noted, convict
prisoner has been handed down life sentence in Srilanka and therefore, 'the
Repatriation of Prisoners Act, 2003 (49 of 2003)' [hereinafter 'said Act' for
the sake of convenience and clarity] comes into play.
3. Learned counsel for writ petitioner drew our attention to an order
dated 02.05.2019 made by Hon'ble Division Bench of Bombay High Court
in Criminal Writ Petition No.3975 of 2018 [Shaikh Istiyaq Ahmed Vs.
Union of India and four others] in support of his plea qua said
representation.
4. Issue notice.
5. Mr.E.Raj Thilak, learned State Additional Public Prosecutor
accepts notice for all the three respondents and draws our attention to
Section 13(6) together with proviso of said Act which reads as follows:
'13. Determination of prison and issue of warrant for
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W.P.No.20772 of 2023
receiving transfer in India -
(1) ......................
(2) .....................
(3) ......................
(4) .....................
(5) ....................
(6) If the sentence of imprisonment passed against the
prisoner in the contracting State is incompatible with the Indian law
as to its nature, duration or both, the Central Government may, by
order, adapt the sentence of such punishment as to the nature,
duration or both, as the case may be, as is compatible to the
sentence of imprisonment provided for a similar offence had that
offence been committed in India:
Provided that the sentence so adapted shall, as far as
possible, correspond with the sentence imposed by the judgment of
the contracting State to the prisoner and such adapted sentence
shall not aggravate the punishment, by its nature, duration or both
relating to the sentence imposed in the contracting State.'
6. Learned counsel adverting to Section 13(6) of said Act submits that
the Central Government is statutorily vested with powers to consider said
representation.
7. In the case on hand, said representation has not been sent to
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W.P.No.20772 of 2023
Central Government.
8. Faced with the above situation, learned counsel for writ petitioner
submitted that he would now send a representation to the Central
Government and keep his fingers crossed. Let the needful be done.
9. For the present, we drop the curtains on the captioned writ petition
but make it clear that all the rights and contentions of the writ petitioner,
convict prisoner and / or anyone concerned for convict prisoner are
preserved and this order will not impact such rights in any manner.
10. Captioned Writ Petition disposed of as closed albeit preserving all
rights in the aforesaid manner. There shall be no order as to costs.
(M.S.,J.) (R.S.V.,J.)
13.07.2023
Index : Yes / No
Speaking / Non-speaking order
Neutral Citation : Yes / No
mk
M.SUNDAR, J.,
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W.P.No.20772 of 2023
and
R.SAKTHIVEL, J.,
mk
To
1. The Principal Secretary to Government
O/o. The Principal Secretary to Government
Home (Prison IV) Department
Secretariat
St.George Fort, Chennai.
2. The Additional Director General of Prison
O/o. The Additional Director General of Prison
Whannels Road,
Egmore, Chennai.
3. The Superintendent of Central Prison
Puzhal Central Prison
Chennai.
4. The Public Prosecutor
High Court, Madras.
W.P.No.20772 of 2023
13.07.2023
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