Madras High Court
Maheswari vs The Secretary To Government Of ... on 27 June, 2023
W.P.No.18903 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE Mr.JUSTICE R.SAKTHIVEL
W.P.No.18903 of 2023
Maheswari
W/o. Anbarasan .. Petitioner
Wife of the detenue
Vs.
The State represented by its
1. The Secretary to Government of Tamilnadu
Department of Home
Fort St. George
Chennai – 600 009
2. The Deputy Inspector General of Prison
Vellore Range
Vellore – 632 002
3. The Superintendent
Cuddalore Central Prison
Cuddalore – 607 004 ... Respondents
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W.P.No.18903 of 2023
Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Certiorarified Mandamus to call for the records
pertaining to the impugned order bearing No.5854/Tha.Ku.2/2023 dated
24.04.2023 passed by the third respondent and quash the same and
consequently direct the respondents to grant ordinary leave for 40 days
without escort to the detenu Anbarasan, son of Raman, aged about 52 years,
Convict No.15133 confined at Central Prison, Cuddalore.
For Petitioner : Dr.S.Manoharan
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
This order will now dispose of the captioned writ petition.
2. Factual matrix in a nutshell is that one 'Anbarasan, son of Raman,
aged about 52 years is a lifer' [hereinafter 'convict prisoner' for the sake of
convenience and clarity]; that convict prisoner was convicted and handed
down inter alia life sentence in and by judgment dated 20.10.2004 vide
S.C.No.34 of 1999 on the file of I Additional District and Sessions Judge,
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W.P.No.18903 of 2023
Salem for an alleged offence under Section 302 IPC; that convict prisoner
remains incarcerated for over 22 years now; that convict prisoner's wife
(writ petitioner before this Court in the captioned matter) has sent a
representation dated 18.04.2023 seeking 40 days ordinary leave without
escort on the grounds that her thatched dwelling house has been battered in
rain, it needs to be repaired and (more importantly) that the convict
prisoner is ill requiring physiotherapy and possible surgery (this 18.04.2023
representation sent by the convict prisoner's wife i.e., writ petitioner before
us shall hereinafter be referred to as 'said representation' for the sake
convenience and clarity); that said representation was rejected in and by an
'order dated 24.04.2023 bearing reference No.5854/Tha.Ku.2/2023 made by
the third respondent' [hereinafter 'impugned order' for the sake of
convenience]; that assailing the impugned order and seeking leave for
convict prisoner captioned writ petition has been filed in this Court on
21.06.2023.
3. Dr.S.Manoharan, learned counsel for petitioner adverting to the
impugned order submits that only two provisions of ''Tamil Nadu
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W.P.No.18903 of 2023
Suspension of Sentence Rules, 1982' [hereinafter referred to as 'said Rules'
for the sake of convenience and clarity] appear to have been cited as
impediments qua grant of leave and those two rules are Rules 21(c) and 35,
which read as follows:
'Rules 21. Non-eligibility for ordinary leave. The following
categories of prisoners shall not be eligible for ordinary leave:-
(a) .......
(b) .......
(c) Prisoners where presence is considered dangerous or
prejudicial to public peace and tranquility.
'35. Pending cases:- No prisoner on whom a case is pending
trial shall be granted leave.'
4. Learned counsel points out that convict prisoner has gone on leave
multiple times earlier and has surrendered after availing the leave without
any untoward incident.
5. Issue notice.
6. Mr.E.Raj Thilak, learned State Additional Public Prosecutor
accepts notice for all three respondents.
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W.P.No.18903 of 2023
7. Considering the narrow scope of the captioned writ petition, main
writ petition is taken up though the captioned matter is in the Admission
Board.
8. Learned Prosecutor on instructions submits that a prison offence
vide Crime No.694 of 2016 is now pending on the file of Judicial
Magistrate II, Cuddalore. Learned counsel submits that conviction for
which the convict prisoner is serving sentence includes conviction under
Explosive Substances Act and therefore Section 21(c) is attracted.
9. We carefully considered the submissions made on both sides.
10. As regards pendency of the case i.e., alleged criminal offence, we
find that the alleged occurrence is on 24.10.2016 and it is for alleged
offences under Section 298 of 'The Indian Penal Code (45 of 1860)'
[hereinafter 'IPC' for the sake of convenience and clarity] read with Section
42 of Prisons Act. This Bench finds that maximum punishment is one year
and that the matter has been pending for nearly seven years now. Therefore,
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W.P.No.18903 of 2023
we find that as regards Rule 35, this is a fit case to take the exemption route
by resorting to Rule 40 of said Rules. We make it clear that Rule 40 applies
only to Executive Arm but it is referred to only as a buttressing factor for us
to exempt as this Court is exercising constitutional powers.
11. As regards Rule 21(c), the impugned order talks about Rule
21(C). This is obviously incorrect. It should read as Rule 21(c). A convict
prisoner having been convicted under Explosive Substances Act alone may
not straightaway fall under Rule 21(c) as this Rule talks about prisoners
whose presence is considered dangerous or prejudicial to pubic order and
tranquility. To be noted, this position applies to the case on hand as we find
that the convict prisoner has been granted leave as many as 44 times in the
past (totally 192 days) and on all occasions he has availed leave and
surrendered after leave period elapsed without any untoward incident.
Learned Prosecutor has placed before us a tabulation in this regard and a
scanned reproduction of the same is as follows:
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12. In the aforesaid view of the matter, we find that this is again a fit
case to exempt the convict prisoner from Rule 21(c) of said Rules. To be
noted, this exemption is on a demurrer as we have taken this view that on
facts and circumstances of the case on hand Rule 21(c) is inapplicable. The
convict prisoner may not fall under Rule 21(c) provision merely he was
convicted for an offence inter alia under Explosive Substances Act. As
both points that have been put against the convict prisoner and both points
on which the rejection of leave application is predicated pales into
insignificance, we deem it appropriate to set aside the impugned order and
grant leave. The following order is made:
i) The convict prisoner is granted 40 days ordinary leave
without escort (40 days from 01.07.2023 to 09.08.2023);
ii) The convict prisoner shall surrender before the third
respondent i.e.,The Superintendent, Cuddalore Central Prison,
Cuddalore by dusk on 09.08.2023 i.e., by 05.30 p.m;
(iii) The convict prisoner shall sign before the Judicial
Magistrate i.e., Judicial Magistrate, Mettupalayam on every
Monday and Friday at 10.30 a.m;
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W.P.No.18903 of 2023
iv) If the convict prisoner on medical advice has to take
treatment as an inpatient in a hospital, he is entitled to do so in a
hospital within Coimbatore District;
v) If the convict prisoner is taking treatment as an
inpatient, it is open to the convict prisoner to file a petition under
Section 317 Cr.P.C before the jurisdictional Magistrate and the
jurisdictional Magistrate shall consider the same on its own
merits and in accordance with law untrammeled by this order.
Captioned writ petition disposed of with the aforesaid directives.
(M.S.,J.) (R.S.V.,J.)
27.06.2023
gpa
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W.P.No.18903 of 2023
To
1. The Secretary to Government of Tamilnadu
Department of Home
Fort St. George
Chennai – 600 009
2. The Deputy Inspector General of Prison
Vellore Range
Vellore – 632 002
3. The Superintendent
Cuddalore Central Prison
Cuddalore – 607 004
4. The Public Prosecutor
Madras High Court, Chennai
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W.P.No.18903 of 2023
M.SUNDAR, J.
and
R.SAKTHIVEL, J.
gpa
W.P.No.18903 of 2023
27.06.2023
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