Madras High Court
A.Meharaj vs The Deputy Inspector General Of ... on 25 July, 2023
2023/MHC/3327
W.P.(MD).No.10212 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.07.2023
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE M.NIRMAL KUMAR
W.P.(MD).No.10212 of 2023
and
W.M.P.(MD).No.9057 of 2023
A.Meharaj .. Petitioner
Vs.
1.The Deputy Inspector General of Prison,
O/o. The Deputy Inspector General of Prison,
Peththaniapuram,
Arapalayam,
Madurai District.
2.The Superintendent of Prison,
Central Jail,
Palayamkottai,
Tirunelveli District. .. Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India to issue a
writ of Certiorarified Mandamus, to call for the records pertaining to the order
passed by the respondent No.1 in No.534/c.j.2/2023 dated 23.04.2023 and quash
the same as illegal and consequently directing the respondents to grant ordinary
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W.P.(MD).No.10212 of 2023
leave for the period of 20 days to the petitioner's husband namely Siddhique ali @
Sulthan (Aged 45), son of Dheen who is a life convict in a murder case and
languishing jail in Palayamkottai Central Prison for the period of 23 years without
granting privilege and the Tamil Nadu Sentence Suspension Rules.
For Petitioner : Mr.S.M.A.Jinnah
For Respondents : Mr.A.Thiruvadikumar
Additional Public Prosecutor
ORDER
(Order of the Court was made by M.S.RAMESH,J.)
The petitioner's husband, namely, Siddhique ali @ Sulthan, is a life convict and
undergoing life sentence, pursuant to the judgment passed by the Sessions Court in
S.C.No.140 of 2000, dated 07.10.2003. The further appeals before this Court as well
as the Hon'ble Supreme Court came to be dismissed. When the petitioner had given
a representation seeking for ordinary leave for her husband on 21.02.2023, her
request was rejected through the impugned order, dated 23.04.2023, by the first
respondent herein, predominantly on the ground that the Probation Officer and the
Commissioner of Police, Tirunelveli had not recommended the case of the prisoner
for grant of leave. Challenging the same, the present Writ Petition has been filed.
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W.P.(MD).No.10212 of 2023
2. The learned counsel for the petitioner submitted that the mother of the
petitioner's husband is a cardiac patient and she is seriously ill. Therefore, the
petitioner's husband is in dire need of ordinary leave for a period of 20 days.
3. The learned Additional Public Prosecutor appearing for the respondents, on
instructions, submitted that in view of the adverse remarks of the Commissioner of
Police, dated 16.04.2023 and the consequential Probation Officer's report dated
21.04.2023, it would not be appropriate for the respondents to grant ordinary leave
to the petitioner's husband. He also submitted that the petitioner's husband is
otherwise entitled for ordinary leave of 20 days.
4. Before addressing the procedures adopted by the respondents in rejecting
the petitioner's request, it would be appropriate to mention here that the co-convict
of the petitioner's husband, namely, Rahamathullah Khan and the petitioner's
husband himself had earlier been granted ordinary leaves. As a matter of fact, in the
case of Zaheera Banu Vs. The State represented by the Secretary to Government of
Tamil Nadu and others in Special Leave Petition (Criminal) Diary No.35463/2022
dated 21.03.2023, the co-convict/petitioner therein had been granted ordinary leave
for six months through orders passed by the Hon'ble Supreme Court of India.
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W.P.(MD).No.10212 of 2023
5. In this background, we have gone through the orders of the Commissioner
of Police dated 16.04.2023, as well as the Probation Officer's report dated 21.04.2023.
We are not in agreement with the procedures adopted by the Commissioner of
Police, as well as the Probation Officer, in giving their adverse remarks with regard
to the petitioner's request for leave.
6. Rule 24 of the Tamil Nadu Suspension of Sentence Rules, 1982 prescribes the
procedure of processing the petition seeking for ordinary leave under Rule 22. As
per Rule 24, the petitions submitted to the Deputy Inspector General of Prisons or to
the Superintendent of Prisons mandatorily requires to be referred to the concerned
Probation Officer seeking for his report on the advisability of granting ordinary
leave to the prisoner. On such reference, the concerned Probation Officer is
mandated to enquire into the request and send his report to the Deputy Inspector
General of Prisons or to Superintendent of Prison in Form I. In case, the Probation
Officer is of the view that the release of the prisoner on leave may result in breach of
peace, it would be open to him to consult the local jurisdictional Sub Inspector of
Police and obtain his view in this regard, solely with a view to avoid any breach of
peace. In cases where there is no likelihood of breach of peace, the Probation Officer
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W.P.(MD).No.10212 of 2023
is required to send his report to the Deputy Inspector General of Prisons or
Superintendent of Prison without consultation with the local Police.
7. In the instant case, the respondents seem to have put the cart before the
horse. When the petitioner had made an application seeking for grant of ordinary
leave for her husband, the Commissioner of Police has first given his adverse report
on 16.04.2023. In view of this adverse report, the Probation Officer has made a
reference to the same and had also given a similar report thereafter on 21.04.2023.
Such a procedure adopted is totally in contravention to Rule 24. In other words, to
the petitioner's request, the Deputy Inspector General of Prisons or the
Superintendent of Prison ought to have referred the matter to the Probation Officer
seeking for his views, who in turn, would be at liberty to take the views of the local
jurisdictional Police.
8. This apart, the views of the Commissioner of Police for either grant of
ordinary leave or for enquiring into the likelihood of any breach of peace, is not
contemplated either under Rule 24 or under any other Sections in the Tamil Nadu
Suspension of Sentence Rules. We would hasten to add that in cases where the
Probation Officer consults and seeks for the views of the local Police, it would
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W.P.(MD).No.10212 of 2023
always be open to the local Police to have a consultation or seek for the views of the
Commissioner of Police through inter-departmental proceedings and thereafter, it is
only the concerned jurisdictional Police who may have to render their views to the
Probation Officer with regard to the likelihood of any breach of peace. In the light of
the procedures contemplated, the procedure now adopted by the respondents, when
in total contravention of the Rules, cannot be sustained.
9. As a matter of fact, when the wife of the co-convict, namely, Rahamathullah
Khan, in the case of Abitha Begam Vs. The Deputy Inspector General of Prison and
Correctional Services and others passed in W.P.(MD).No.15076 of 2023 dated
07.07.2023, had approched this Court seeking for grant of ordinary leave, this Court
had granted ordinary leave for a period of 20 days without escort with a liberty to
the Superintendent of Prison to impose reasonable conditions.
10. Likewise, earlier the petitioner's husband was granted ordinary leave,
through orders passed by a co-ordinate Bench of this Court in W.P.(MD).No.27228
of 2022 dated 01.12.2022, for a period of 20 days without escort, from 16.12.2022 to
04.01.2023. The petitioner herein had obtained information through RTI in
Na.Ka.No.G2/10221/23/2023 dated 30.05.2023, which reveals that during the
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W.P.(MD).No.10212 of 2023
earlier ordinary leave period from 16.12.2022 to 04.01.2023, there was no law and
order problem or any breach of peace due to the petitioner's husband. Even
according to the learned Additional Public Prosecutor, the petitioner's husband had
reported before the Melapalayam Police Station daily at 11.00 AM and 6.00 PM. In
view of the same, a similar condition can also be imposed for the present spell of
ordinary leave.
11. In the light of the above observations, the impugned order dated 23.04.2023
on the file of the first respondent herein is set aside. Consequently, there shall be a
direction to the Superintendent of Prison/second respondent herein to pass
appropriate orders granting ordinary leave to the petitioner's husband, Siddhique
Ali @ Sulthan (aged 45 years), who is a life convict in Central Prison, Palayamkottai,
without escort, for a period of 20 days commencing from 27.07.2023. It is left open
to the Superintendent of Prison/second respondent herein to impose any reasonable
conditions. The petitioner's husband shall report before Melapalayam Police
Station, Tirunelveli daily twice, i.e., at 11.00 AM and 6.00 PM for the entire period of
ordinary leave. On expiry of the ordinary leave period, the petitioner's husband
shall surrender before the Superintendent of Prison/second respondent herein
immediately.
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W.P.(MD).No.10212 of 2023
12. Accordingly, this Writ Petition is allowed. There shall be no order as to
costs. Consequently, connected miscellaneous petition stands closed.
Sd/-
Assistant Registrar(RTI)
// True Copy //
/07/2023
Sub Assistant Registrar(CS)
Lm/mbi
To
1.The Deputy Inspector General of Prison,
O/o. The Deputy Inspector General of Prison,
Peththaniapuram,
Arapalayam,Madurai District.
2.The Superintendent of Prison,
Central Jail,
Palayamkottai, Tirunelveli District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Copy to:
The Inspector of Police,
Melapalayam Police Station,
Tirunelveli.
W.P.(MD).No.10212 of 2023
25.07.2023
MGJ(26.07.2023) 8P 5C
Madurai Bench of Madras High Court is issuing certified copies in this format from
17.07.2023
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