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 leave for the period of 20 days to the
petitioner's husband namely Siddhique ali @ Sulthan (Aged 45), son of
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W.P.(MD).No.10212 of 2023
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
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W.P.(MD).No.10212 of 2023
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.
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
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W.P.(MD).No.10212 of 2023
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 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.
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W.P.(MD).No.10212 of 2023
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 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
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W.P.(MD).No.10212 of 2023
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 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
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W.P.(MD).No.10212 of 2023
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.
12. Accordingly, this Writ Petition is allowed. There shall be no order
as to costs. Consequently, connected miscellaneous petition stands closed.
(M.S.R.,J.) (M.N.K.,J.)
25.07.2023
NCC : Yes / No
Index : Yes / No
Lm/mbi
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W.P.(MD).No.10212 of 2023
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.
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.10212 of 2023
M.S.RAMESH,J.
and
M.NIRMAL KUMAR,J.
Lm/mbi
W.P.(MD).No.10212 of 2023
25.07.2023
https://www.mhc.tn.gov.in/judis
