Madras High Court
N.Ramajeyam vs The Secretary To Government on 17 November, 2023
2023/MHC/5099
W.P(MD)No.27397 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.11.2023
CORAM :
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
W.P(MD)No.27397 of 2023
N.Ramajeyam ... Petitioner
vs.
1.The Secretary to Government,
Home Department (Prison),
Government of Tamil Nadu,
Secretariat,
St. George Fort,
Chennai – 9.
2.The Additional Director General of Police (Prisons)/
The Inspector General of Police,
Office of ADGP (Prisons)/ I.G. of Prisons,
Thalamuthu Natarajar Maaligai,
Egmore, Chennai – 8.
3.The Superintendent of Prison,
Central Prison,
Madurai. ... Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Mandamus, directing the respondents to grant
20 days emergency leave without escort to the petitioner's brother namely
Arun Kumar, S/o.Late Natarajan a life convict prisoner (life convict no.
6065) now confined at Central Prison, Madurai for the purpose of
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W.P(MD)No.27397 of 2023
solemnize his sister's marriage from 17.11.2023 to 07.12.2023 by
considering the petitioner's representation dated 07.11.2023.
For Petitioner : Mr.S.Srikanth
For Respondents : Mr.A.Thiruvadikumar
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.]
Captioned 'Writ Petition' ['WP' for the sake of brevity] has been
filed in this Court on 15.11.2023 with a mandamus prayer which pertains
to 20 days emergency leave without escort to the writ petitioner's brother
one Arunkumar, son of Late Natarajan, who is a prison inmate now
lodged in Central Prison, Madurai [life convict No. 6065]. 'Thiru
Arunkumar' shall hereinafter be referred to as 'said prison inmate' for the
sake of convenience. Suffice to say that prison inmate was convicted and
handed down life imprisonment for offences under Sections 120B r/w
302 IPC by Principal Sessions Judge's Court, Ramanathapuram vide
S.C.No.5 of 2019 [judgment and sentence dated 22.09.2021]. It is also to
be noted that this conviction and sentence has been carried in an appeal
to this Court vide Crl.A.(MD)No.425 of 2021 and the same is pending.
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W.P(MD)No.27397 of 2023
2. Writ Petitioner has sent a representation dated 07.11.2023 to the
three respondents in the captioned matter seeking 21 days leave
[17.11.2023 to 07.12.2023] for said prison inmate on the ground that
marriage has been fixed for his sister [prison inmate's sister too] and that
the marriage scheduled to take place on 23.11.2023. A reading of this
07.11.2023 representation brings to light that the grounds on which leave
has been sought is that said prison inmate's presence is necessary for
making arrangements for his sister's marriage. To be noted, parents of
the prison inmate are no more and the sister of prison inmate, who is to
be married is a full sister ie., blood sister.
3. Mr.S.Srikanth, learned counsel for Writ Petitioner who is before
us reiterated the aforementioned facts and submitted that the
aforementioned 07.11.2023 representation remains unattended and that
has necessitated the filing of the captioned Writ Petition considering that
arrangements for prison inmate's full sister marriage have to be done and
that the marriage itself scheduled to be held on 23.11.2023.
4. Issue notice. Mr.A.Thiruvadi Kumar, learned State Additional
Public Prosecutor accepts notice for all the three respondents.
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W.P(MD)No.27397 of 2023
5. Considering the nature of the matter and the narrow compass in
which it turns with the consent of both sides, main Writ Petition was
taken up and heard out.
6. In response to the plea of the petitioner, learned Additional
Public Prosecutor, on instructions, submitted that there is only one
impediment for acceding to the leave request and that impediment is Rule
22(1)(c) of 'Tamil Nadu Suspension of Sentence Rules, 1982' ['said
Rules' for the sake of brevity]. Owing to this Rule, said prison inmate
having been convicted and handed down life imprisonment sentence has
to complete three years of imprisonment.
7. Before we proceed further, it is necessary to notice that in
aforementioned 07.11.2023 representation, there is no mention about
emergency leave or ordinary leave, it merely seeks 21 days leave but the
prayer in the Writ Petition talks about emergency leave. On a careful
perusal of said Rules we find that the ground on which leave has been
sought by the prison inmate snugly fits into Rule 20(iv) of said Rules,
which reads as follows:
'20.Grounds for the grant of ordinary leave.- The
grounds for the grant of ordinary leave to a prisoner shall be -
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W.P(MD)No.27397 of 2023
(i) .............
(ii) .............
(iii) ............
(iv) to make arrangements or to participate in the
marriage of the prisoner, sons, daughters, full brother or full
sisters, as the case may be, of the prisoner;'
8. Therefore, considering the ground on which leave has been
sought and the 07.11.2023 representation, we construe the plea as one for
ordinary leave on the ground set out in Rule 20(iv) of said Rules, which
has been extracted and reproduced supra.
9. We carefully considered the submissions of both sides and we
are inclined to grant leave by acceding to the prayer. The reasons are as
follows:
i) the ground on which leave has been sought is not
subjected to any disputation or contestation;
ii) there is no other impediment other than Rule
22(1)(c) of said Rules, which has been alluded to supra;
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W.P(MD)No.27397 of 2023
iii) as regards Rule 22(1)(c) we remind ourselves of
Baskar's case [Baskar Vs. The State and two others]
being order dated 20.09.2023 made in W.P.No.27515 of
2023. To be noted, in Baskar's case we have adopted the
view taken in Bhuvaneswari case [Bhuvaneswari Vs. The
Secretary and three others] reported in 2023:MHC:3983
(Neutral Citation of this Court) and Pushpalatha case
[Pushpalatha Vs. The State and two others] reported in
2023:MHC:4244 (Neutral Citation of this Court). It is
further to be noted that these cases have been made by this
Court by respectfully following the Vernon case [Vernon
Vs. State of Maharashtra and another] reported in 2023
SCC OnLine SC 885 : 2023 LiveLaw (SC) 575 and
K.A.Najeeb principle [Union of India Vs. K.A.Najeeb
reported in 2021 3 SCC 713]. Vernon principle and
K.A.Najeeb principle have been relied on to say that a
statutory provision cannot constrict constitutional powers
when it comes to liberty. In this regard, we deem it
appropriate to extract and reproduce sub-paragraph (iii) of
paragraph 8 in Baskar's case which reads as follows:
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W.P(MD)No.27397 of 2023
'8.........
(i)..........
(ii)........
(iii) This Court in Bhuvaneswari case
[Bhuvaneswari Vs. The Secretary and three others]
reported in 2023:MHC:3983 (Neutral Citation of this
Court) Pushpalatha case [Pushpalatha Vs. The State and
two others] reported in 2023:MHC:4244 (Neutral Citation
of this Court) and in a catena of cases has repeatedly held
that said Rules is a piece of Subordinate Legislation made
by Executive in exercise of Rule making powers inter alia
under Section 432(5) of 'The Code of Criminal Procedure,
1973 (2 of 1974)' [hereinafter 'Cr.PC' for the sake of brevity
and clarity] and therefore, such Subordinate Legislation
which has not even gone through Legislative grind in the
Legislature cannot in any manner abridge much less denude
Constitutional powers of this Court. In this regard, though
rendered in the context of Section 43D(5) proviso of
Unlawful Activities (Prevention) Act, 1967, we draw
inspiration from Vernon case [Vernon Vs. State of
Maharashtra and another reported in 2023 SCC OnLine
SC 885 : 2023 LiveLaw (SC) 575], wherein K.A.Najeeb
principle [Union of India Vs. K.A.Najeeb reported in 2021
3 SCC 713] that a statutory provision cannot constrict
constitutional powers when it comes to liberty as laid down /
reiterated by Hon'ble Supreme Court. To be noted UAPA is a
Statute which has gone through the law making drill
whereas in the case on hand we are dealing with a piece of
Subordinate Legislation made by the Executive arm. In this
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W.P(MD)No.27397 of 2023
view of the matter, we find that even the Executive has been
vested with powers vide Rule 40 of said Rules to exempt any
person from all or any of the provisions of said Rules. This
only means that even this Subordinate Legislation i.e., said
Rules is not non-negotiable. This is evident from the window
provided vide Rule 40 of said Rules but it is not necessary
for us to take Rule 40 route as we are exercising
Constitutional powers cannot be abridged, much less
denuded by a piece of Subordinate Legislation;........'
(iv) To be noted, the facts of the case in Baskar's
case are such that where 40 days ordinary leave was
sought on the ground of failing health of prison inmate's
mother which was negatived citing Rule 22(3) of said
Rules which says that one year imprisonment should have
elapsed between two spells of leave. Applying Baskar
principle which has been written by us by respectfully
following Vernon and K.A.Najeeb principles laid down by
Hon'ble Supreme Court, we find that said Rules which is a
piece of Subordinate Legislation cannot in any manner
abridge much less denude the constitutional powers of this
Court. The sequitur means that as much as Rule 22(3) was
not an impediment in Baskar's case, Rule 22(1) will not
be an impediment in the case on hand.
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W.P(MD)No.27397 of 2023
10. This Court having set out the narrative and dispositive
reasoning, now makes the following order:
(i) 14 days ordinary leave without escort is granted
to the said prison inmate Thiru Arunkumar, son of Late
Natarajan [life convict No. 6065] now lodged in Central
Prison, Madurai;
(ii) 14 days ordinary leave shall be from 18.11.2023
[10.30 a.m.] to 01.12.2023;
(iii) Said prison inmate shall sign before the
jurisdictional Magistrate's Court everyday [we are
informed that the Jurisdictional Magistrate is Judicial
Magistrat I, Ramanathapuram];
(iv) the above condition will not apply for three
days of the leave viz., 18.11.2023, 23.11.2023 and
02.12.2023;
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W.P(MD)No.27397 of 2023
(v) the said prison inmate shall surrender before the
office of the third respondent on 02.12.2023 [Saturday] by
dusk ie., by 5.30 p.m.; and
(vi) the said prison inmate shall not utilise the leave
for any purpose other than the ground on which leave has
been granted.
11. Captioned Writ Petition is disposed of in the aforesaid manner
with the aforementioned directives. There shall be no order as to costs.
(M.S., J.) (R.S.V., J.)
17.11.2023
Index : Yes
Neutral Citation : Yes
vsm
Note: (i)Upload forthwith
(ii)All concerned to act on this order being uploaded in official
website of this Court without insisting on certified hard copies. To be
noted, this order when uploaded in official website of this Court will be
watermarked and will also have a QR code.
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W.P(MD)No.27397 of 2023
To
1.The Secretary to Government,
Home Department (Prison),
Government of Tamil Nadu,
Secretariat,
St. George Fort,
Chennai – 9.
2.The Additional Director General of Police (Prisons)/
The Inspector of General of Police,
Office of ADGP (Prisons)/ I.G. of Prisons,
Thalamuthu Natarajar Maaligai,
Egmore, Chennai – 8.
3.The Superintendent of Prison,
Central Prison,
Madurai.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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W.P(MD)No.27397 of 2023
M.SUNDAR, J.
and
R.SAKTHIVEL, J.
vsm
ORDER MADE IN
W.P(MD)No.27397 of 2023
DATED : 17.11.2023
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