Madras High Court
K.Rajalakhmi vs The Principal Secretary To The ... on 15 June, 2023
2023/MHC/2683
W.P.( MD) No.13918 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
W.P. (MD) No.13918 of 2023
K.Rajalakhmi ... Petitioner
Vs.
1.The Principal Secretary to the Government of Tamil Nadu,
Home (Prison - IV) Department,
Secretariat,
Fort St. George,
Chennai – 600 009.
2.The Additional Director General of Police,
Inspector General of Prisons,
No. 1, Gandhi Irwin Salai,
Egmore,
Chennai – 600 008.
3. The Superintendent of Prison,
Central Prison,
Madurai. ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Mandamus, directing the
Respondents to grant parole to the petitioner's husband viz., Kandhasamy
1/38
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Pandian, S/o. Pandian, Convict Prisoner No.5861, now confined at Central
Prison, Madurai for a period of 5 days by considering the petitioner's
representation dated 07.06.2023.
For Petitioner : Mr.S.Krishnan
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
(Order of the Court was made by R.SURESH KUMAR, J.)
The prayer sought for herein is for a Writ of Mandamus, directing
the respondents to grant parole to husband of the petitioner viz.,
Kandhasamy Pandian, S/o. Pandian, Convict Prisoner No.5861, now
confined at Central Prison, Madurai, for a period of 5 days, by considering
her representation dated 07.06.2023.
2. The short facts, which are supposed to be noticed for disposal
of this Writ Petition are as follows:-
The petitioner's husband viz., one Kandhasamy Pandian, S/o.
Pandian was convicted in a murder case, punishable under Section 302 of
I.P.C., corresponding to Crime No.226 of 2007 in Othakadai Police
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Statition. The said judgment and conviction, though was appealed before
this Court, which was confirmed by the Judgement of this Court, as against
which, Special Leave Petitions have been preferred before the Hon'ble
Supreme Court of India in S.L.P. Nos.1433 of 2019 and 1434 of 2019. The
said S.L.Ps. are pending before the Hon'ble Supreme Court.
3. In this context, it is the further case of the petitioner that, her
husband has been undergoing the jail sentence for the past four years.
Earlier the petitioner's husband applied for parole for two times, on the
ground of her illness he availed the parole. In both the times parole was
granted considering the longer judicial custody and character of the husband
of the petitioner.
4. When that being so, now, the petitioner, who is the wife of the
convict along with the elders of the family has decided to perform a
function for her daughter Kayalvizhi i.e., Puberty function (in tamil g{g;g[dpj
ePuhl;L tpHh). The said function was fixed to be held on 28.06.2023.
Therefore, in order to make arrangements for the said function and to
participate in the function, the petitioner seems to have approached the Jail
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authorities for release of her husband by granting him leave or parole, which
was not considered, despite such representation has been made.
5. Therefore, the petitioner has given a representation on
07.06.2023 to the first respondent for grant of such parole / leave to the
husband of the petitioner for a period of 5 days, by considering her
representation dated 07.06.2023.
6. To issue a Writ of Mandamus to the first and second
respondents to consider such representation for grant of such 5 days leave,
for the reasons stated therein, the petitioner has filed the present Writ
Petition with the aforestated prayer.
7. We have heard Mr.S.Krishnan, the learned counsel appearing
for the petitioner, who has reiterated the aforestated prayer, seeking
indulgence of this Court.
8. We have also heard Mr.A.Thiruvadi Kumar, learned Additional
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Public Prosecutor, appearing for the respondents. He would submit that,
insofar as the consideration of the representation given by the petitioner
dated 07.06.2023 is concerned, such a consideration could be made only
within the power of the State under the Tamil Nadu Suspension of Sentence
Rules, 1982 (In short the 1982 Rules).
9. Under the said Rules, there are two types of leave, one is
emergency leave and the another one is ordinary leave. What are all the
grounds for grant of emergency leave, that have been mentioned under Rule
6. Like that, what are all the grounds for grant of ordinary leave have been
mentioned under Rule 20.
10. Insofar as the leave now sought for by the petitioner for her
husband is only ordinary leave and the same has to be dealt with under the
provisions of the said Rules. In this context, the learned Additional Public
Prosecutor would further submit that, Rule 35 of the said Rules has made it
clear that, no prisoner on whom a case is pening trial shall be granted leave,
that means, if there is a pending trial, the prisoner shall not be granted leave
by exercising the power under the said Rules by the State / authorities
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concerned.
11. He would also submit that, admittedly, since the conviction
has been confirmed by this Court, that has been appealed before the Hon'ble
Supreme Court, where the S.L.Ps. are pending, and the said appeal can very
well be treated as a continuation of the trial. Therefore, within the meaning
of Rule 35 of the said Rules, the power and authority of the State under the
said Rules is denuded so long as the appeal is pending before the appellate
Court and in this case, it is before the Hon'ble Supreme Court.
12. Therefore, the learned Additional Public Prosecutor would
contend that, the respondents cannot exercise their power within the
meaning of the Rules in view of Rule 35 as mentioned above. Therefore, it
is for the petitioner to approach the Court, where the appeal is pending to
seek for suspension of sentence within the meaning of Section 389 of
Cr.P.C. or any other provisions available to the petitioner.
13. In this context, the learned Additional Public Prosecutor has
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cited some decisions of this Court, which are as follows:
(i) S.Santhosam v. State & others reported in 2021-2-L.W. (Crl)
519;
(ii) L.Wasib Khan v. The State & others reported in 2022-1-L.W.
(Crl) 416; and
(iii) M.Jeyammal v. State & others reported in 2022-1-L.W.
(Crl.) 833.
14. By relying upon these decisions, the learned Additional Public
prosecutor contended that, the law is well settled in this regard by a number
of decisions as has been noted herein above, where, if an appeal is pending
against the conviction, only the appellate Court has to deal with any
application for grant of leave by way of suspension of sentence and in that
case the power of the State within the meaning of the Rules is denuded.
Therefore, no Mandamus can be issued as sought for in this Writ Petition,
directing the respondents to exercise the power under the Rules to consider
the plea of the petitioner for grant of leave for 5 days to her husband i.e.,
detenu.
15. We have given our anxious consideration to the said
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submissions made by the learned counsel appearing for the parties,
especially, the Additional Public Prosecutor, and have perused the materials
placed before us.
16. Insofar as the factual matrix of the case in hand is concerned,
it is the conviction and sentence earned by the husband of the petitioner for
an offence punishable under Section 302 of I.P.C. Therefore, he is a life
convict undergoing his sentence at Central Prison, Madurai. As against the
conviction of the trial Court, as confirmed by this Court, admittedly, Special
Leave Petitions were filed, which are pending before the Hon'ble Supreme
Court. When that being the position, what is the role of the State authorities
within the meaning of the Rules is to be looked into. If we look at the
Scheme of the Rules, the Rules has been framed in exercise of the power
conferred by sub-section (5) of Section 432 of the Code of Criminal
Procedure, 1973. The Rules is called Tamil Nadu Suspension of Sentence
Rules, 1982. Under Rule 2(3), leave means an emergency or ordinary leave.
Under Rule 5, leave shall be of two kinds, namely, emergency leave and
ordinary leave. Under Rule 6, the grounds for the grant of emergency leave
have been mentioned, which read thus:-
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“6. Grounds for the grant of emergency leave. -
Emergency leave may be granted for attending death or serious
illness of father, mother, wife, husband, son daughter, full
brother or full sister, as the case may be, or the wedding of the
prisoner or son, daughter, full brother or full sister of the
prisoner, as the case may be, and for having delivery outside
the prison in the case of female pregnant prisoners.”
17. Like that, under Rule 20, grounds for the grant of ordinary
leave have been provided, which read thus:-
”20. Grounds for the grant of ordinary leave. - the
grounds for the grant of ordinary leave to a prisoner shall be -
(i) to make arrangements for the livelihood of his
family and for settlement of life after release;
(ii) to make arrangements for the admission of the
children in the school or college;
(iii) construction or repairing the home-stead;
(iv) to make arrangements or to participate in the
marriage of the prisoner, sons, daughters, full brothers or full
sisters;
(v) settling family disputes like partition etc.
(vi) agricultural operations like sowing, harvesting
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etc; and
(vii) any other extraordinary reasons; and
(viii) in case of female pregnant prisoners, for having
delivery outside the prison.”
18. Under Rule 10, the Superintendent of Prision is empowered to
grant emergency leave to the prisoners subject to the other conditions laid
down in the Rules. Under Rule 19, the Deputy Inspection General of Prisons
is the competent authority to issue order of release of prisoners on ordinary
leave subject to the satisfaction of all the conditions in the Rules.
19. Therefore, these two authorities can exercise the power under
the Rules in case of emergency leave or ordinary leave as the case may be
respectively.
20. Under these Rules only, such a request, since has been made
by the petitioner for grant of leave to her husband, who is the life confict,
such an exercise since has not been made by the two authorities mentioned
in the Rules, as stated supra, ultimately, the petitioner has made a request on
07.06.2023 to the State Government i.e., the first respondent.
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21. After giving such request to the State Government, the
petitioner has rushed to this Court, seeking for a Writ of Mandamus, by
filing this Writ Petition invoking the extra-ordinary jurisdiction of this
Court under Article 226 of the Constitution, seeking for a direction to the
first respondent to consider the representation of the petitioner dated
07.06.2023 and grant of 5 days leave to her husband, who is a life convict.
22. When such Mandamus was sought for, it was opposed by the
respondents through the learned Additional Public Prosecutor on the
aforestated reasons, especially, in the context of the legal position that, the
authority concerned under the Rules to exercise the power to grant such
leave either emergency leave or ordinary leave as the case may be are not
entitled to or their power is denuded, in case if the appeal is pending before
the Court concerned. In this context, the learned Additional Public
Prosecutor takes aid of Rule 35 under the heading “pending cases”, where it
is stated, no prisoner on whom a case is pending trial shall be granted leave.
23. In this context, the past happenings, which had been taken
note in the judgments cited supra are noteworthy to be considered.
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24. In Santhosam's case (cited supra), a Division Bench of this
Court considering the power of the State under Section 432 of Cr.P.C., has
held as follows:-
“7. Before proceeding to decide as to whether
Gunasekaran is entitled to emergency leave or not, it is
felicitous to trace the genesis of the Sentence Suspension
Rules. Section 432 (5) Cr.P.C. appears to be the source of
power for the Sentence Suspension Rules and it reads as under:
“432 Power to suspend or remit sentences:
(5) The appropriate Government may, by general
rules or special orders give directions as to the suspension of
sentences and the conditions on which petitions should be
presented and dealt with:
Provided that in the case of any sentence (other
than a sentence of fine) passed on a male person above the
age of eighteen years, no such petition by the person
sentenced or by any other person on his behalf shall be
entertained, unless the person sentenced is in jail, and-
(a) where such petition is made by the person
sentenced, it is presented through the officer in charge of the
jail; or
(b) where such petition is made by any other
person, it contains a declaration that the person sentenced is
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in jail.”
(emphasis supplied)
8. A reading of the above shows that the Government
may, by general rules or special orders, give directions for
suspension of sentence for a person who has been convicted of
an offence and sentenced therefor. In other words, once a
person has been convicted of an offence and sentenced therefor
by a Court of law, a duty is cast upon the executive, viz., in this
case, the prison authorities, to ensure that the person undergoes
the sentence that has been imposed on him by the Court. Thus,
the role of the executive to execute a judicially pronounced
sentence commences when adjudication by the judiciary ends.
9. Section 432 Cr.P.C. gives power to the appropriate
Government to suspend the execution of or remit the sentence
imposed on a person for good reasons. The expression
“suspension of sentence” used herein is not akin to the usage of
the expression used in Section 389 Cr.P.C. Section 389 (1)
Cr.P.C. deals with the power of the appellate Court to suspend
the sentence, pending disposal of the appeal preferred by the
sentenced person.”
25. Subsequently, in Wasib Khan's case (cited supra), the
Division Bench has considered a similar position where what is the power
of the State Government under the Rules for grant of leave in case the
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appeal is pending before the appellate Court has been considered and it has
been held by the Division Bench to the following effect:-
“12. Superadded, during the hearing of the case in
Manokaran vs. State of Tamil Nadu [Crl.A. No.866 of 2020]
on 01.10.2002, it came to the notice of the Supreme Court that
in the State of Tamil Nadu, the convict prisoners were being
granted parole/leave during the pendency of their appeal. This
was frowned upon by the Supreme Court and the Joint
Secretary to the Government was summoned. Apposite it is to
extract the observations of the Supreme Court in the said order
dated 01.10.2002:
“Mr.J.A. Syed Abdul Khader, Joint Secretary to
Government of Tamil Nadu, Home Department, Chennai, is
present in terms of the earlier orders of this Court. Mr.
Khader regrets that unfortunately a practice has grown in the
State of Tamil Nadu to act in the fashion as it has been
effected in the matter under consideration. Mr. Khader,
however, assures this Court that in future, the State
Government would act strictly according to the requirements
of the statute and not de hors. The question of continuity of
there being any practice being followed henceforth would
not arise and the same has been discarded by the State
Government.'
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13. Following this, the office of the Additional
Director General of Prisons, issued an Office Memo No.
43880/PS4/2002 dated 21.10.2002 which reads as under:
'The Superintendent is informed that the Supreme
Court of India in C.A. No.866/2002, has observed that the
practice being following in this State for granting leave to
prisoners even for short duration during the pendency of
their appeal is not in accordance with Tamil Nadu
Suspension of Sentence Rules, 1982 and it is also contrary to
the Constitution Bench judgment of Supreme Court in K.M.
Nanavati vs. State of Bombay AIR 1961 SC 112. The
Supreme Court of India has therefore ordered that in future
no such short term release should be made by the competent
authority without informing the Court in which the prisoner?
s appeal is pending and that this order of the Court should be
scrupulously followed in future.
2. In this connection, the attention of the
Superintendent is invited to Government letter no.
66517/Prison.V/2000~15, Home Department dated
20.06.2002 communicated in this office endt.No.
38245/PS4/2000 dated 04.08.2002 wherein the Government
have clarified that for suspension of sentence of a convicted
person whose appeal is pending, he has to approach only the
Appellate Court or High Court.
3. The Superintendent/Deputy Inspector General of
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Prisons should therefore act in accordance with the above
orders of the Supreme Court of India and should desist from
releasing any prisoner on emergency or ordinary leave when
his appeal is pending before the appropriate Court without
prior permission of the Court. If any violation is noticed in
this regard, the Superintendent concerned will be liable for
disciplinary action.
4. The receipt of this memo should be
acknowledged. BHOLA NATH Additional Director General
of Prisons'
14. In view of the above, Wasib Khan cannot be
granted leave under the Sentence Suspension Rules and
therefore, the second reason given in the impugned order
stands upheld.
In the result, this writ petition stands dismissed,
however, sans costs.”
26. In Jeyaammal's case (cited supra), the Division Bench has
considered a similar issue, where Rule 40 of the Rules also has been
discussed, from which, the following passages can be usefully referred:-
“8. Ms. Nadhiya's second contention is that under
Rule 40, ibid., the State has the power to grant exemption
which they ought to have exercised, especially taking into
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consideration the fact that the convict prisoner is a
septuagenarian and he had completed more than two decades of
actual imprisonment.
9. To appreciate the aforesaid contention, it is worth
extracting Rule 40, ibid.:
'40. Power to exempt. - The Government may
exempt any person from all or any of the provisions of these
rules.'
10. Be it noted, Rule 40, ibid., is a negative power to
grant exemption in a given case that is vested with the
Government and it does not confer any right to a prisoner for
the purpose of issuance of a writ of mandamus. Trite it is that
in the absence of any legal right, a writ of mandamus cannot
lie. At this juncture, apropos it is to allude to the following
observation of the Supreme Court in Mani Subrat Jain and
Others v. State of Haryana and Others [(1977) 1 SCC 486]:
'It is elementary though it is to be restated that no
one can ask for a mandamus without a legal right. There
must be a judicially enforceable right as well as a legally
protected right before one suffering a legal grievance can ask
for a mandamus. A person can be said to be aggrieved only
when a person is denied a legal right by someone who has a
legal duty to do something or to abstain from doing
something. (See Halsbury's Laws of England, 4th Edn., Vol.
I, para 122; State of Haryana Vs. Subash Chander
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Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 :
(1974) 1 SCR 165] ; Jasbhai Motibhai Desai Vs. Roshan
Kumar Haji Bashir Ahmed [(1976) 1 SCC 671 : (1976) 3
SCR 58] and Ferris : Extraordinary Legal Remedies, para
198.)'
11. Further, the power to exempt is a discretionary
one vested with the State Government. The exercise of such
discretion cannot be arbitrary or uncanalised, but, must be
based on objective and intelligible material. It goes without
saying that the exercise of such power is always subject to
judicial review.
12. That apart, it is trite equally that a writ of
mandamus would not lie to compel the exercise of discretion
by an authority. The position is put beyond the ken of any
controversy by a Constitution Bench of the Supreme Court in
State of Karnataka v. State of A.P. [(2000) 9 SCC 572],
wherein, it was observed thus:
“The law as regards the issuance of a mandatory
order or writ depends upon the authority exercising the
power as well as the nature of the function and obligations
arising therefrom. It is settled law that such a direction
cannot possibly be granted so as to compel an authority to
exercise a power which has a substantial element of
discretion.'
(emphasis supplied)
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13. Ergo, no mandamus can be issued to the
Government to pass an order under Rule 40, ibid. Of course, if
the Government passes an order under Rule 40, ibid. in a given
case, the legality of it, can be subjected to judicial review by
the Constitutional Court.”
27. In analyzation of these judgements, which are almost in the
same line, of course, on the basis of what has been held by the Hon'ble
Supreme Court in Manokaran v. State of Tamil Nadu (Crl.A.No.866 of
2020), the State authorities practice hitherto follow till such time was in fact
frowned upon by the Hon'ble Supreme Court, therefore, the State authority
i.e., the Joint Secretary to Government of Tamil Nadu, Home Department,
appeared before the Supreme Court and what he has stated has been
extracted in the said Judgement, where the practice of granting leave by the
Government authorities, when appeal is pending before the appellate Court,
has grown in the State of Tamil Nadu and it was assured on behalf of the
State Government that in future the State Government would act strictly
according to the requirements of the Statute and not de hors to the Statute.
28. It was further assured that, the question of continuity of there
being any practice being followed henceforth would not arise and the same
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has been discarded by the State Government. Not stopping with that,
pursuant to the said stand taken by the State Government in clear terms in
Manoharan's case cited supra, the Additional Director General of Prisons
had issued an Office Memoranda in O.M.No.43880/PS4/2002 dated
21.10.2002, which in fact has been extracted in para 13 of the Judgment of
Wasib Khan by the Division Bench as cited supra.
29. In the said Office Memoranda, the ADGP i.e., the Additional
Director General of Prisons had made it clear that, the Supreme Court has
observed that the practice being followed in the State for granting leave to
prisoners even for short duration during the pendency of their appeal is not
in accordance with the 1982 Rules and it is also contrary to the Constitution
Bench Judgment of Supreme Court in K.M.Nanavati v. State of Bombay,
AIR 1961 SC 112.
30. It has further been stated in the O.M. that, the Supreme Court
of India therefore ordered that in future no such short term release should be
made by the competent authority without informing the Court in which the
prisoner's appeal is pending and that this order of the Court should be
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scrupulously followed in future.
31. Taking note of the order of the Hon'ble Supreme Court, the
memoranda further states that, the Jail Superintendents attention was invited
to Government letter No.66517/Prison.V/2000-15, Home Department dated
20.06.2002, communicated by letter dated 04.08.2002, where the
Government have clarified that for suspension of sentence of a convicted
person, whose appeal is pending, he has to approach only the Appellate
Court or High Court.
32. The memoranda further states that, the Superintendent/Deputy
Inspector General of Prisons, (who are the authorities to exercise the power
under the 1982 Rules for grant of emergency leave or ordinary leave)
therefore, should act in accordance with the aforestated orders of the
Supreme Court of India and they should desist from releasing any prisoner
on emergency or ordinary leave when his appeal is pending before the
appropriate Court without a prior permission of the Court.
33. By citing these developments, the stand of the State
Government before the Hon'ble Supreme Court and the observation made in
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the said order in Manoharan's case (cited supra) and the subsequent O.M.
issued in this regard by the Additional Director General of Police dated
23.10.2002, were heavily relied upon by the learned Additional Public
Prosecutor.
34. According to him, as of now, either emergency leave or
ordinary leave under 1982 Rules shall be considered for grant by the
authority concerned under the Rules or the State Government in consonance
with the said Rule, of course, under Section 432(1) of Cr.P.C. Therefore, he
would submit that, in case appeal is pending before any appellate forum that
may be either the lower appellate Court or High Court or the Supreme
Court, as per the O.M. no such short term release should be made by the
competent authority without informing the Court, in which, prisoner's
appeal is pending. It means, here in the case in hand, admittedly, the appeal
is pending before the Supreme Court, therefore, without the concurrence of
the Supreme Court or orders of the Supreme Court, such a short term release
also should not be made be the competent authority. Therefore, the learned
Additional Public Prosecutor would contend that, the petitioner has to
necessarily approach the Hon'ble Supreme Court of India in the pending
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appeal to seek for suspension of sentence either for short term or even for
more days for emergency leave or ordinary leave, and such power since has
been denuded in view of the pendency of the appeal, it cannot be exercised
as of now by the State authorities under 1982 Rules.
35. What has been argued in this regard, as stated supra, by the
learned Additional Public Prosecutor is appealing to us.
36. However, recently, a Coordinate Bench of this Court
(Principal Seat) in Shakila W/o. Manoharan v. the State & others in
W.P.No.2761 of 2023 has delivered the judgement on 10.02.2023, under
which, such a plea was raised by the petitioner therein for grant of
emergency leave of a convict. According to the learned Additional Public
Prosecutor, whose appeal is pending before the Hon'ble Supreme Court,
hence, there was an opposition on behalf of the respondents in the Shakila's
case (cited supra) stating that, in view of the pendency of the appeal before
the Hon'ble Supreme Court of India, that the power to exercise its discretion
under Article 226 of the Constitution to issue a Mandamus may not be
exercisable as the parties to be relegated to approach the Hon'ble Supreme
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Court to file a petition therein in the pending appeal to seek for a suspension
of sentence as in the case such a plea to be raised before the High Courts or
first appellate Court within the meaning of Section 389(1) and (2) of Cr.P.C.
respectively.
37. Though such an opposition was made on behalf of the
prosecution before the Division Bench, which dealt with Shakila's case
(cited supra), that was not accepted by the Division Bench. On this context,
the Division Bench had stated that, there is a Rule called Rule 40 of 1982
Rules, which is a power to exempt, under which, the Government may
exempt any person from all or any of the provisions of these rules. Quoting
the said rule 40, the Coordinate Bench in Shakila's case has gone further
saying that K.Rajamanickam & Ors. v. State of Tamil Nadu & Ors.
reported in 1991 SCC Online Mad 897 and L.Wasib Khan (cited supra)
cases did not deal with the impact of Rule 40. The Division Bench has
further stated that a careful perusal of Rule 40 makes it clear that the
Executive itself has ample and adequate powers to exempt any one from the
provisions of said Rules. The Division Bench further states that, therefore,
the said Rules has an inbuilt provisions vesting the Executive itself with the
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power to exempt a convict prisoner from the operation of said Rules, this
makes it clear that, the said Rules or provisions thereunder are not absolute
and cannot come in the way or become an impediment in judiciary
exercising its power to grant leave.
38. Ultimately, the Division Bench in Shakila's case (cited supra)
allowed the Writ Petition by giving directions to the authorities concerned
to release the convict prisoner on ordinary leave for 10 days.
39. This judgement has also been brought to our notice by the
learned Additional Public Prosecutor, which infact has taken completely an
opposite stand of the earlier three Division Bench judgements, which we
have quoted herein above.
40. In this context, it is to be noted that, in the matter of The
State, represented by the Home Secretary v. Yesu reported in 2011 (5)
CTC 351, a Full Bench of this Court has considered various issues.
41. One such issue was the consideration of Rule 40 of the 1982
Rules, where the Full Bench has held as follows:-
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42. A perusal of the same would show that if a
prisoner is so exempted by the Government from the provisions
of the said Rules in toto, then the Government cannot grant
suspension at all. But at the same time, the Government can
exempt some of the provisions such as provisions relating to
bond etc., in respect of a particular prisoner and release him on
leave. Such exercise of the power by the Government
exempting some of the provisions of the Suspension Rules
shall be for reasons to be recorded and the same shall not be
exercised in an arbitrary manner. As rightly pointed out by
Mr.P.N.Prakash, the Amicus Curiae, the entire Suspension
Rules may be exempted in respect of an individual prisoner for
valid reasons. For example, if the prisoner is a hardcore
terrorist, even if he satisfies the conditions enumerated in the
Suspension Rules, the Government will be within its
competence to exempt him from all the provisions of the
Suspension Rules and to decline to release him temporarily
either on emergency leave or ordinary leave.”
42. On perusal of the said decision of the Full Bench, especially,
in the context of Rule 40 of 1982 Rules, the Full Bench agreed with the
Amicus Curiae that the entire Supension Rules viz., the 1982 Rules may be
exempted in respect of a individual prisoner for valid reasons. The Full
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Bench has further stated that, for example, if the prisoner is a hardcore
terrorist, even if he satisfies the conditions enumerated in the Suspension
Rules the Government will be within its competence to exempt him from all
the provisions of the Suspension Rules and to decline to release him
temporarily either on emergency leave or ordinary leave.
43. Therefore, the exemption provision according to the Full
Bench, as provided under Rule 40, can be exercised in the negative sence,
that means, if a convict becomes otherwise eligible to seek for ordinary
leave on the basis of the various provisions of 1982 Rules, still if the
authority does not want to release him under ordinary leave or emergency
leave for the specific reasons attached to the said convict concerned as his
release or his presence in the public may be endanger to the public, law and
order or public order or for any reason for the security of the nation, such
kind of right even conferred under the said Rules on any convict can be
suspended, for which the exemption provision can be invoked by the
authority concerned.
44. Therefore, only in that context, Rule 40 has been considered
and that was held by the Full Bench in the said Judgment in para 42 as
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referred to above.
45. The said position has in fact been reiterated on further
consideration by the Division Bench in Santhosam's case (cited supra),
where in para 17, the Division Bench has held as follows:-
“17. The next submission of Mrs. Nadhiya is that the
State should invoke Rule 40 of the Sentence Suspension Rules
to exempt the petitioner-s brother from the operation of Rule
35, ibid. We are, however, afraid that this does not cut ice with
us. The scope of Rule 40, ibid., came up for consideration
before a Full Bench of this Court in State vs. Yesu, 2011 (5)
CTC 353, wherein, at paragraph 42, it was held that if Rule 40,
ibid. was exercised to exempt a person from the Sentence
Suspension Rules, the resultant position was that the State
Government would have no power to grant suspension of
sentence at all. This is because the Full Bench, at paragraph 52,
has observed that “outside the scope of the Tamil Nadu
Suspension of Sentence Rules, no authority has got any power
to grant suspension of sentence in any form.“ Ex consequenti,
the power to exempt cannot be used to grant leave outside the
four corners of the Sentence Suspension Rules, as there exists
no plenary power with the State Government to grant leave
dehors the provisions of the Sentence Suspension Rules. What
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cannot be done on account of the express bar contained in Rule
35, ibid., cannot be indirectly circumvented through the back
door of Rule 40, ibid. The decision of the Full Bench in Yesu
(supra), binds us, with the result that the contention premised
on Rule 40, ibid. cannot be countenanced.”
46. Also another Division Bench in Jeyammal's case (cited
supra), has dealt with Rule 40, which in fact, has been quoted herein above
already.
47. Therefore, it is not a first time, the Rule 40 has been dealt with
by a Division Bench in Shakila's case (cited supra). It is apposite to
mention that the Full Bench, as cited supra, has considered the Rule 40 and
has held that, from the purview of 1982 Rules, a prisoner can be exempted,
that means, exempted not for the benefit of the prisoner but towards the
safety and security of the locality concerned or the State in general.
48. Therefore, the Rule 40 exemption cannot be fit in as has been
held by the said judgment in Shakila's case (cited supra) by the coordinate
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Bench. Therefore, to that extent the observation made in the said judgement
in Shakila's case (cited supra) is not in consonance with the law held by the
Full Bench of this Court in Yesu's case (cited supra).
49. That apart, if we look at the scheme of suspension of sentence
within the meaning of Cr.P.C., there is a dichotomy, first one is Section 389
of Cr.P.C. Section 389 lies under the heading 'suspension of sentence
pending the appeal; release of appellant on bail under that section made it
clear that, pending any appeal by convict, the appellate Court may for
reasons to be recorded, by which, in writing order that the execution of the
sentence or order appealed against be suspended. Therefore, if an appeal is
pending against the conviction, such sentence can be suspended only on a
petition to be filed in this regard to seek for suspension of sentence under
Section 389(1) Cr.P.C. before the said Court where the appeal is pending.
50. In case the appeal is pending before the lower appellate Court
other than the High Court even then such a power can be exercised by the
High Court under sub-section 2 of Section 389. Therefore, under both
circumstances, i.e., at the time of appeal pending before the High Court or
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even before the lower appellate Court such a power is exercisable by the
High Court either under 389(1) or under Section 389(2) of Cr.P.C.
51. But at the same time, if a person has been convicted, against
the conviction, when there has been no appeal filed or the appeal has been
filed and it has become final and all appeal remedies have been exhausted,
in that case, the power of consideration of grant of leave which can also be
called as suspension of sentence either for emergency purpose or for
ordinary time i.e., made available to be exercised by an Executive Authority
under Section 432 of the Cr.P.C. Under sub-section 2 of Section 432
Cr.P.C., whenever an application is made to the appropriate Government for
the suspension or remission of the sentence, the appropriate Government
may require the Presiding Judge of the Court before or by which the
conviction was had or confirmed and after getting the opinion, orders can be
passed suspending the sentence or granting leave.
52. Under Section 432(5) of Cr.P.C., the appropriate Government
may, by rules or special orders give directions as to the suspension of
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sentences and the conditions on which petitions should be presented and to
be dealt with. Only by exercising such a power under sub-section (5) of 432
Cr.P.C., the 1982 Rules have been framed by the State Government.
Therefore, the power being exercised by the State authorities under 1982
Rules is in consonance with Section 432 of Cr.P.C., in other words the
source of power for exercising the jurisdiction under 1982 Rules by the
State authorities is to be derived only from Section 432 of Cr.P.C.
53. However, it is to be noted that, the power to be exercised by
the State Government under 1982 Rules by taking the source of power from
432 Cr.P.C. is available only when no appeal against conviction is pending
before any appellate Court, which means, the moment any appeal has been
filed either before the first appellate Court, or before the High Court or
ultimately before the Hon'ble Supreme Court and such an appeal is pending,
the Court in which such appeal is pending has to be approached by the
convict to get suspension of sentence within the meaning of Section 389(1)
and (2).
54. The very same position is prevailing or it should be followed
in case where such appeal is pending before the Hon'ble Supreme Court of
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India. This legal position can be safely drawn or culled out from the
observation made by the Hon'ble Supreme Court in Manokaran's case
(cited supra).
55. In the said Manokaran's case (cited supra) the practice of
exercising power by the State in granting suspension of sentence or parole
or leave, undmindful of the pendency of the appeal before the Supreme
Court, was frowned upon by the Supreme Court and the Joint Secretary to
the Government was summoned and whose undertaking has been recorded
by the Supreme Court as discussed herein above.
56. Following the said judgement in Manokaran's case (cited
supra), Official Memorandum dated 21.10.2002 was issued by the ADGP
and the import of the said memorandum has also been discussed herein
above. Therefore, the said judgement of Manokaran's case (cited supra),
followed by the O.M. issued by the ADGP have made it abundantly clear
that, even during the pendency of the appeal before the Hon'ble Supreme
Court, such a kind of power to be exercised by the State within the meaning
of 1982 Rules is completely denuded as in the case of the pendency of the
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appeal either before the lower appellate Court or before the High Court.
57. In such circumstances, the convict has to approach only the
Court where the appeal is pending. Here, if at all the appeal is pending
before the Hon'ble Supreme Court, naturally the convict has to approach the
Hon'ble Supreme Court of India to seek for suspension of sentence by way
of granting leave either on emergency basis or for ordinary leave as the case
may be.
58. When that being the position, now the question is whether this
Court can, in exercising its jurisdiction under Article 226 of the
Constitution of India, entertain a Writ Petition for issuance of Mandamus
for release of the convict prisoner from jail, that too, on an ordinary leave
without relegating or driving the convict to go before the Court, where the
appeal is pending, knowing well that such appeal is pending, admittedly,
before the Hon'ble Supreme Court.
59. In this context, the aforestated Judgements as well as the
earlier Judgement of the Constitution Bench in Nanavati's case (cited
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supra), which is the law earliest was declared by the Hon'ble Supreme Court
of India, since are available, any deviation against such law declared by the
Hon'ble Supreme Court cannot be permitted to take place and this has been
made very clear by the State Government before the Supreme Court in
Manokaran's case, followed by the Official Memorandum dated
21.10.2002, where specifically the verdict of the Constitution Bench of the
Hon'ble Supreme Court in Nanavati's (cited supra) has been mentioned.
When that being the legal position, the consistant view that was taken by
various Judgements, which we have quoted hereinabove that, when a
Criminal Appeal is pending against the conviction, the Executive cannot
power to exercise the power under the 1982 Rules. Therefore, no
Mandamus can be sought for to exercise such power by the said authorities
and this has been made clear in more than one Division Bench Judgements
as stated supra, especially, in para 10 of Jeyammal's case (cited supra).
60. When that being the legal position, which has been
consistently taken, on the basis of the Nanavati's case (cited supra) as well
as the Full Bench judgement in Yesu's case (cited supra) and atleast three
Division Bench decisions, cited supra, the only deviation, now noticed is
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that the Shakila's case by a Coordinate Bench, which in fact is not in
consonance with the Constitution Bench decision as well as the subsequent
Judgements, which have taken very consistent view in consonance with the
Constitution Bench decision and this has been fortified by the order passed
by the Hon'ble Supreme Court in Manokaran's case, followed by the
Official Memorandum, which has given a clarification and quitus to the
issue.
61. Ergo we are of the view that the plea raised by the petitioner
herein seeking for Writ of Mandamus, by invoking the extraordinary power
of this Court under Article 226 of the Constitution to give a direction to the
respondents, especially, the first respondent to exercise his power under
1982 Rules to consider the representation given by petitioner for grant of
ordinary leave to the convict, who is the husband of the petitioner, while,
admittedly, the appeal is pending before the Hon'ble Supreme Court, is
unacceptable.
62. The only option that is available before the petitioner is to
approach the Hon'ble Supreme Court in the pending appeal. When such an
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appeal is pending, the power either under Section 389 of Cr.P.C., or under
Article 226 of the Constitution, shall not be invoked by this Court, which
will transgress the jurisdiction of the Hon'ble Supreme Court in view of the
plethora of decisions, which we have hereinabove discussed.
63. Since the view taken by the Division Bench in Shakila's case
(cited supra) is not in consonance with the Hon'ble Supreme Court's
Judgement as well as the Full Bench decision, cited supra, which are having
a binding effect on this Bench, we are not inclined to accept the plea raised
by the petitioner and at the same time the stand taken by the respondents as
projected by the learned Additional Public Prosecutor is to be accepted,
accordingly, we are inclined to dismiss the Writ Petition, hence, it is
dismissed. However, there shall be no order as to costs.
(R.S.K., J.) & (K.K.R.K, J.)
15.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
SJ
R.SURESH KUMAR, J.
AND
K.K.RAMAKRISHNAN, J.
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W.P.( MD) No.13918 of 2023
SJ
To
1.The Principal Secretary to the Government of Tamil Nadu,
Home (Prison - IV) Department,
Secretariat,
Fort St. George,
Chennai – 600 009.
2.The Additional Director General of Police,
Inspector General of Prisons,
No. 1, Gandhi Irwin Salai,
Egmore,
Chennai – 600 008.
3. The Superintendent of Prison,
Central Prison,
Madurai.
W.P. (MD) No.13918 of 2023
15.06.2023
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