Madras High Court
Selvam vs The State Rep. By Its on 15 September, 2023
2023:MHC:4258
W.P.No.27137 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
W.P.No.27137 of 2023
Selvam
S/o.Chinnathurai .. Petitioner
Vs.
1. The State rep. by its
The Deputy Inspector General of Prison
Office of the Deputy Inspector General of Prison
Trichy Range, Race Course Road,
Trichy District - 620 023.
2. The Superintendent of Prison
Central Prison at Trichy
Trichy - 620 020.
3. The Superintendent of Prison
Central Prison at Puzhal-I
Thiruvallur District - 600 066. ..Respondents
Petition filed under Article 226 of the Constitution of India praying
writ of Mandamus to direct the respondents to grant 40 days ordinary leave
without escort to the petitioner / convict namely, Mr.Selvam, son of
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W.P.No.27137 of 2023
Chinnathurai, by considering petitioner's representation dated 28.07.2023
presently, who is detained under third respondent respectively.
For Petitioner : Mr.M.Mohamed Saifulla
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
Captioned writ petition has been filed in this Court on 11.09.2023
with a mandamus prayer qua writ petitioner's representation dated
28.07.2023 seeking 40 days ordinary leave (to be noted, writ petitioner is a
life convict prisoner). To be noted, this representation dated 28.07.2023
shall hereinafter be referred to as 'said representation' for the sake of
convenience and clarity.
2. Short facts (shorn of elaboration / particulars that are not
imperative for appreciating this order) are that writ petitioner was convicted
in and by judgment of conviction and sentence dated 05.10.1998 in
S.C.No.392 of 1997 on the file of learned Principal District and Sessions
Judge's Court, Tirunelveli; that originally capital punishment was awarded
for a 302 of 'the Indian Penal Code, 1860 (Act 45 of 1860)' [hereinafter
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W.P.No.27137 of 2023
'IPC' for the sake of brevity] offence; that thereafter, the matter travelled to
this Court, Hon'ble Supreme Court and by way of Mercy pleas before
Hon'ble Governor, His Excellency the President; that capital punishment
was modified as life imprisonment; that writ petitioner is now lodged in
Central Prison, Puzhal, Tiruvallur District - 600 066 (Convict No.23170);
that writ petitioner has remained incarcerated from 1994 for 29 years now;
that writ petitioner has been granted leave and has gone on leave multiple
times (15 times) in the past and on all occasions, he has returned and
surrendered without any untoward incident; that now vide said
representation, 40 days ordinary leave has been sought on two grounds
namely, (a) to make arrangements for admission of writ petitioner's two
children in B.E., and M.E. courses and (b) to repair his homestead; that said
representation remains unattended is learned petitioner counsel's say and
that has necessitated the filing of captioned writ petition in this Court on
11.09.2023 is his further say.
3. In the hearing today, Mr.M.Mohamed Saifulla, learned counsel on
record for petitioner drew our attention to said representation and submitted
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W.P.No.27137 of 2023
that the aforementioned two grounds on which ordinary leave has been
sought snugly fits into sub-clauses (ii) and (iii) of Rule 20 of 'the Tamil
Nadu Suspension of Sentence Rules 1982' [hereinafter 'said Rules' for the
sake of convenience and clarity]; that on all earlier occasions of leave, there
has been nothing untoward and writ petitioner has returned promptly; that
there is no impediment in granting 40 days ordinary leave that has been now
sought.
4. Issue notice.
5. Mr.E.Raj Thilak, learned State Additional Public Prosecutor
accepts notice for all three respondents.
6. Learned Prosecutor, on instructions, submits that said
representation is being processed and a call has to be taken qua said
representation by first respondent owing to Rule 19 of said Rules. It is also
submitted by learned Prosecutor that as part of said representation being
considered, report of jurisdictional Probation Officer has been obtained and
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W.P.No.27137 of 2023
there is nothing adverse in the same. To state with specificity, learned
Prosecutor says that jurisdictional Probation Officer's report says that leave
as sought for shall be granted albeit with escort is jurisdictional Probation
Officer's report.
7. In the light of the narrative thus far, it comes to light that the
captioned matter turns on a very narrow compass and therefore with the
consent of both sides, the captioned writ petition was taken up and heard
out.
8. After careful consideration of facts and the trajectory the matter has
taken thus far, including the trajectory of incarceration of writ petitioner for
nearly three decades (29 years) now (from 1994) we are of the view that
request / plea qua said representation has to be acceded to i.e., writ
petitioner has to be granted 40 days ordinary leave as sought for and reasons
are as follows:
(i) As rightly pointed out by learned counsel for writ
petitioner, two grounds i.e., admission of children and repair
work of homestead snuggly fit into sub-clauses (ii) and (iii) of
Rule 20 of said Rules captioned 'Grounds for the grant of
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W.P.No.27137 of 2023
ordinary leave'. There is no disputation or contestation about
these grounds;
(ii) Convict prisoner has gone on leave as many as 15
times thus far and details of the same as placed before us by
learned Prosecutor are as follows:
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The above tabulation makes it clear that on 2 out of 15
occasions, this Court i.e., Hon'ble coordinate Division Benches
of this Court have granted leave. Be that as it may, what is of
greater significance is, on all 15 occasions, nothing untoward
has happened, convict prisoner has returned and surrendered
on the leave period elapsing;
(iii) As regards said representation which we are
concerned with in the captioned matter i.e., representation
dated 28.07.2023, it is submitted that jurisdictional Probation
Officer's report does not say anything adverse and it only says
that it is desirable to grant 40 days leave with escort. To be
noted, learned counsel for writ petitioner, on instructions,
submits that writ petitioner is willing to go with escort. This
submission is recorded;
The aforementioned two reasons, i.e., the reasons which
snugly fit into sub-clauses (ii) and (iii) of Rule 20 of said
Rules, in our view are very compelling as it pertains to
education of writ petitioner's children. In this regard, we
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remind ourselves that a prisoner and his fundamental rights do
not part ways at the prison gates and Right to Education is
indisputably a fundamental right. The said Rules is a piece of
Subordinate Legislation made by Executive i.e., Government
of Tamil Nadu 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]. A piece of Subordinate Legislation which has not
gone through grind i.e., Legislative grind in the Legislature can
hardly constrict or in any manner hamper Constitutional
powers of this Court, more so, when such Constitutional
powers pertain to Article 21 of Constitution of India. In this
regard, we remind ourselves of recent judgement of Hon'ble
Supreme Court in Elgar Parishad case i.e., 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] was reiterated to say that a bail
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W.P.No.27137 of 2023
restricting clause in a Statute cannot denude jurisdiction of
Constitutional Court and that this is a fundamental proposition.
Though K.A.Najeeb principle and Elgar Parishad case were
rendered in the light of Section 43D of Unlawful Activities
(Prevention) Act, 1967, principle applies in all fours i.e.,
principle that a restriction clause in a Statute cannot denude
jurisdiction of a Constitutional Court applies in all force. We
draw inspiration from Hon'ble Supreme Court, having declared
that this is a fundamental proposition. Reverting to the case on
hand, said Rules is not even a Statute, it is a Subordinate
Legislation made under Rule making powers vested with the
Executive under Section 432(5) of Cr.PC and this Subordinate
Legislation has not gone through legislative grind of law
making in the Legislature. Therefore, this piece of Subordinate
Legislation is only a codified guideline for the Executive to
deal with requests for leave from prisoners and it cannot
abridge Constitutional powers which this Court is exercising.
At the risk of repetition, we reiterate that a prisoner and his
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W.P.No.27137 of 2023
fundamental rights do not part ways at the prison gates. To put
it in a nutshell, Subordinate Legislation cannot denude nay not
even abridge Constitutional powers.
9. In the light of the reasons set out supra, we make the following
order:
(i) Writ petitioner is granted 40 days ordinary leave with
escort from 21.09.2023 10.30 a.m. to 01.11.2023 5.30 p.m.;
(ii) Writ petitioner shall surrender before third
respondent by dusk on 01.11.2023 Wednesday i.e., by 5.30
p.m.;
(iii) The strength of the escort shall be decided by
jurisdictional police depending on the ground situation;
(iv) Writ petitioner shall utilize the leave only for the
purpose which has been granted i.e., education of his children
and repair work of his homestead and shall not partake in any
other activities;
(v) Writ petitioner being granted leave with escort does
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not mean that writ petitioner will be confined in his house and
it shall not be treated as house arrest.
Captioned Writ Petition is disposed of in the aforesaid manner with
the aforesaid directives. There shall be no order as to costs.
(M.S.,J.) (R.S.V.,J.)
15.09.2023
Index : Yes
Speaking
Neutral Citation : Yes
mk
Note: Upload forthwith
P.S.: Though captioned writ petition is disposed of, Registry to list the
captioned writ petition under the cause list caption 'FOR REPORTING
COMPLIANCE' on 03.11.2023.
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W.P.No.27137 of 2023
M.SUNDAR, J.,
and
R.SAKTHIVEL, J.,
mk
To
1. The State rep. by its
The Deputy Inspector General of Prison
Office of the Deputy Inspector General of Prison
Trichy Range, Race Course Road,
Trichy District - 620 023.
2. The Superintendent of Prison
Central Prison at Trichy
Trichy - 620 020.
3. The Superintendent of Prison
Central Prison at Puzhal-I
Thiruvallur District - 600 066.
4. The Public Prosecutor
High Court, Madras.
W.P.No.27137 of 2023
15.09.2023
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