Madras High Court
A.Dhamodaran vs The Superintendent Of Central ... on 26 June, 2023
W.P.No.19201 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
W.P.No.19201 of 2023
A.Dhamodaran
S/o.Arjunan .. Petitioner
Vs.
1. The Superintendent of Central Prison
Puzhal-1
Chennai-600 066.
2. The Inspector of Police
Manimangalam Police Station
Kancheepuram District. ..Respondents
Petition filed under Article 226 of the Constitution of India praying
writ of mandamus to direct the first respondent to grant three days
emergency leave to the lifer Saravanan, son of A.Dhamodaran, CT No.8416,
now confined at Central Prison, Puzhal, Chennai-66 by considering the
representation of the petitioner dated 26.06.2023 on the file of first
respondent herein.
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For Petitioner : Mr.R.Sankarababu
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
In the case on hand, a strange situation has arisen.
2. To be noted, there is a bereavement for convict prisoner (convict
prisoner's blood brother died this morning) and convict prisoner has to
attend funeral. To be noted, writ petitioner's son, one Saravanan is the
convict prisoner. Therefore, the matter was mentioned at half past ten,
lunch motion was granted and captioned writ petition has been taken up by
way of an additional list.
3. As regards strange situation, the writ petitioner's son one
Saravanan, who is a lifer has already been granted suspension of sentence
and bail in and by an order dated 15.06.2023 by this Bench in
Crl.M.P.No.2775 of 2023 in Crl.A.No.235 of 2021 which reads as follows:
'Captioned 'Criminal Miscellaneous Petition' [hereinafter
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'Crl.MP' for the sake of brevity, convenience and clarity] has been
filed in this Court on 02.02.2023 inter alia under Section 389 of 'The
Code of Criminal Procedure, 1973 (2 of 1974)' [hereinafter 'Cr.P.C.'
for the sake of brevity and clarity] with a prayer for suspension of
sentence / bail qua conviction and sentence dated 17.04.2021 in
S.C.No.105 of 2016 on the file of 'Mahila Court, Chennai' which
shall hereinafter be referred to as 'trial Court'.
2. Factual matrix in a nutshell i.e., case of prosecution which
was believed by the trial Court is that on 12.05.2014, the injured
(PW1) before the trial Court was abused with obscene words and
assaulted with a knife taken out from trouser pocket of the accused
resulting in grievous injuries; that there was love affair between the
lone accused and injured / victim; that this occurrence on 12.05.2014
was in a shop in the city of Chennai; that charges framed were under
Sections 341 and 307 of 'Indian Penal Code, 1860 (Act 45 of 1860)'
['IPC' for the sake of brevity]; that in the trial Court, the injured /
victim, who deposed as PW1 has not supported the case of
prosecution; that the trial Court has convicted the accused on the
basis of chief-examination of PW1 by saying that PW1 was not cross
examined on the same day i.e., chief-examination deposition day;
that PW1 was cross-examined after her marriage; that the trial
Court proceeded on the assumption that PW1 did not support the
case of prosecution fearing possibility of being repeatedly called to
Court to testify which would affect her marriage / married life; that
the trial Court proceeded on the basis that the victim is now happily
married; that captioned Crl.MP has been filed after one dismissal of
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W.P.No.19201 of 2023
an earlier suspension of sentence petition and after withdrawal of
another petition.
3. Before proceeding further, we deem it appropriate to set out
the charges and sentences qua conviction / sentence of trial Court.
S.No. Charge Sentence
1 Section 341 of IPC One month simple imprisonment
2 Section 307 of IPC Life imprisonment with fine of
Rs.5,000/- and three months simple
imprisonment if there is default in
payment of fine.
4. Mr.R.Sankarasubbu, learned counsel appearing on behalf
of petitioner submitted that the conviction is weak as the victim
herself did not support the case of prosecution and therefore, the
petitioner verily believes that he has fair chances of acquittal in the
main appeal.
5. Mr.R.Muniyapparaj, learned Additional Public Prosecutor
(assisted by learned counsel Mr.Sylvester John) submitted to the
contrary by saying that cross examination was more than 2 years
after the victim deposed in chief and therefore, the conviction can
certainly be sustained. Learned Prosecutor also submitted that one
earlier suspension of sentence petition was withdrawn and another
came to be dismissed.
6. We carefully considered submissions of both sides.
7. It is prima facie palpable that there is bright possibility of
the conviction and sentence of trial Court being interfered with i.e.,
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W.P.No.19201 of 2023
the conviction of trial Court which proceeded on the basis of chief-
examination of PW1 though PW1 victim did not support the case of
prosecution in the cross-examination. This course was adopted by
trial Court primarily on the ground that cross-examination was after
marriage of PW1 and that she did not support the case of
prosecution fearing that she might be repeatedly called to Court to
testify which would affect her marriage / married life. This
assumption has been articulated by trial Court in paragraph No.27
of judgment which is under appeal. As regards conduct of the
petitioner, post conviction and sentence, there is nothing to
demonstrate that there has been any prison offence or that it is not
blemishless.
8. As regards the test for suspension of sentence legal drill,
this Bench reminds itself of Omprakash principle [Omprakash
Sahni Vs. Jai Shankar Chaudhary & another reported in 2023
SCC OnLine SC 551] laid down by Hon'ble Supreme Court recently
on 02.05.2023. In Omprakash principle, Hon'ble Supreme Court
had held that what has to be looked into is something palpable qua
fair chances of acquittal for the convict, the only rider is that it
should not be by re-appreciation of evidence. We also notice that the
appeal being taken up in its regular course would consume some
time and this is a fit case for suspension of sentence and bail if
Omprakash principle is applied to case on hand.
9. We deem it appropriate to put in a condition that the
petitioner for the present would stay well away from the jurisdiction
of scene of occurrence (Chennai) as well as Vellore where (we are
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W.P.No.19201 of 2023
informed) the victim was residing in matrimonial home post
marriage for some time.
10. In the light of the narrative, discussion and dispositive
reasoning thus far, the following order is made:
(i) The sentence handed down to petitioner qua judgment and
conviction dated 17.04.2021 in S.C.No.105 of 2016 on the file of the
trial Court i.e., learned Sessions Judge, Mahila Court, Chennai, is
suspended and the bail is subject to conditions which are set out in
other sub-paragraphs infra;
(ii) The petitioner shall deposit the fine amount in the trial
Court if not already deposited;
(iii) The petitioner shall execute bonds of Rs.25,000/- [Rupees
Twenty Five Thousand only] with two sureties of whom one should
be a blood relative (each for a like sum) to the satisfaction of XIV
Metropolitan Magistrate, Egmore.
(iv) The petitioner shall stay in Villupuram District and
petitioner shall not move out of Villupuram District without leave of
the Mahila Court (Fast Track Mahila Court), Villupuram District;
(v) The petitioner shall report before the learned Sessions
Judge, Mahila Court (Fast Track Mahila Court), Villupuram District
on the first working day of every week at 10.30 a.m pending disposal
of the appeal; and
(vi) The petitioner shall not enter the area where the victim is
residing and / or working.
Captioned Crl. MP is disposed of in the aforesaid manner with
the aforesaid directives.'
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4. The above order captures the facts and therefore, we do not
propose to labor on the same again.
5. This Bench is informed that convict prisoner is yet to satisfy the
conditions for bail adumbrated in paragraph No.10 of the aforementioned
order and therefore, remains incarcerated. In such situation, the
aforementioned bereavement has occurred.
6. The plea in the captioned writ petition is for 3 days emergency
leave.
7. Issue notice.
8. Mr.E.Raj Thilak, learned State Additional Public Prosecutor, who
accepted notice for both respondents, submits, on instructions that convict
prisoner has given in writing to prison authorities that he does not want to
attend the funeral with escort. In the case on hand, owing to
aforementioned strange situation, we deem it appropriate to grant 3 days
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emergency leave without escort as sentence qua convict prisoner has already
been suspended and convict prisoner has already been granted bail. In this
view of the matter, we make it clear that this order will not serve as a
precedent in all the cases of emergency leave.
9. The convict prisoner is granted 3 days emergency leave without
escort (26.06.2023 to 28.06.2023) both days inclusive. We make it clear
that if the convict prisoner complies with the conditions adumbrated in
paragraph No.10 of the aforementioned suspension of sentence / bail order
in the interregnum i.e., in these 3 days, he will be entitled to the benefit of
bail. If that not be so, the convict prisoner should surrender before the
concerned jail authorities i.e., jail where he is now incarcerated by dusk on
28.06.2023 i.e., by 5.30 p.m. Though obvious, thereafter, it is open to the
convict prisoner to comply with conditions for being enlarged on bail. If the
conditions are complied, though obvious, it is made clear that he will stand
governed by order dated 15.06.2023 made in Crl.M.P.No.2775 of 2023 in
Crl.A.No.235 of 2021.
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10. Learned Prosecutor is requested to communicate this order to the
concerned prison authorities forthwith (without waiting for uploading or
issue of certified copy of this order) to ensure that the convict prisoner is
able to attend funeral forthwith. Convict Prisoner should be permitted to
leave today even if it is post dusk.
11. Captioned Writ Petition is disposed of in the aforesaid manner.
There shall be no order as to costs.
12. Though the captioned writ petition has been disposed of by this
order, let it appear in the list / be listed under the cause list caption 'FOR
REPORTING COMPLIANCE' on 03.07.2023.
(M.S.,J.) (R.S.V.,J.)
26.06.2023
Index : Yes / No
Speaking / Non-speaking order
Neutral Citation : Yes / No
mk
Note: Issue order copy forthwith
Upload order forthwith
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W.P.No.19201 of 2023
M.SUNDAR, J.,
and
R.SAKTHIVEL, J.,
mk
To
1. The Superintendent of Central Prison
Puzhal-1
Chennai-600 066.
2. The Inspector of Police
Manimangalam Police Station
Kancheepuram District.
3. The Public Prosecutor
High Court, Madras.
W.P.No.19201 of 2023
26.06.2023
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