R.Saraswathy v. The State Rep By Its,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE Mr.JUSTICE R.SAKTHIVEL R.Saraswathy W/o.Radha Krishnan .. Petitioner Vs.
1. The State Rep. By its The Home Secretary (Prison) Home Department, Secretariat Fort St.George, Chennai
2. The Director General of Prison Thalaimuthu Natarajar Building Egmore, Chennai - 600 008
3. The Superintendent of Prison Salem Central Prison, Hasthampatti - 636 007 ... Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records pertaining to the impugned order in No.1545/tha.ku.3/2022 dated 02.02.2023 passed by the 3rd respondent and quash the same and consequently direct the respondent to grant 30 days leave without escort to the convict prisoner D.Radha Krishnan, son of Duraisamy, Life Convict (CT.No.0631), aged about 49 years, now confined in Salem Central Prison. Page Nos.1/19
For Petitioner :
Mr.M.Mohamed Saifulla For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] This order will now dispose of the captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity].
2. This order has to be read in conjunction with and in continuation of earlier proceedings made in the previous listings on 15.03.2023, 25.04.2023 and 14.06.2023, which read as follows: Proceedings dated 03.03.2023 'Petitioner in the captioned Writ Petition is the spouse of a convict prisoner (Convict No.0631) now lodged in Central Prison, Salem. To be noted, the convict prisoner is a lifer as he is serving life sentence having been convicted in and by order and sentence dated 31.08.2015 made in S.C.No.206/2010 on the file of I Additional Sessions Court, Salem.
2. Be that as it may, a representation was made Page Nos.2/19
seeking 30 days leave without escort to the convict on the ground that the petitioner (lifer's spouse) has medical ailments. This representation was negatived by third respondent in and by an order signed on 02.02.2023 bearing reference No.1545/jF3/2022 [hereinafter referred to as 'impugned order' for the sake of convenience and clarity]. To be noted, the impugned order has been signed on 02.02.2023 by third respondent but the date reads as .....02.2023. We find this to be a rather casual manner of dealing with liberty of a person which is sacrosanct qua sublime Constitutional philosophy.
3. Be that as it may, Mr.M.Mohamed Saifulla, learned counsel for petitioner, submits that the impugned order is a very terse order and no reasons much less tenable reasons have been given for negativing the leave prayer.
4. Mr.R.Muniyapparaj, learned Additional Public Prosecutor, assisted by Mr.M.Sylvester John, who accepts notice on behalf of all the three respondents, sought two weeks time to file counter affidavit. As a preliminary submission, learned Prosecutor drew our attention to Rule 35 of the 'Tamil Nadu Suspension of Sentence Rules, 1982' [hereinafter referred to as 'said Rules' for the sake of convenience and clarity] and submits that a person qua whom a case is pending trial cannot be granted leave. However, prima facie, it appears that Rule 35 of said Rules is Page Nos.3/19
also within the sweep of Rule 40 of said Rules which is power to exempt qua the Government i.e., executive arm.
5. We express no opinion at this prima facie stage. Let a counter be placed before this Court within a fortnight after favouring the petitioner's counsel with advance copy. List a fortnight hence. List on 17.03.2023.'
Proceedings dated 27.03.2023 Learned counsel representing the counsel on record for petitioner requests for an adjournment stating that additional typed-set of papers needs to be filed. Request for adjournment acceded to.
2. List one week hence. List on 06.04.2023.
Proceedings dated 26.04.2023 Read this in conjunction with and in continuation of earlier proceedings in the previous listings. 2.Today, learned Additional Public Prosecutor served a copy of counter affidavit on the counsel for petitioner. Learned Prosecutor seeks time to file it in the Registry and bring it on board. Request acceded to.
3.List on 02.06.2023.
Proceedings dated 02.06.2023 Read this in conjunction with and in continuation of earlier proceedings made in the previous listing on 26.04.2023.
2. Today, Mr.M.Mohamed Saifulla, learned counsel for Page Nos.4/19
petitioner is before us and learned counsel is ready but learned State Additional Public Prosecutor requests for an accommodation for circulating some case laws which according to learned Prosecutor has a bearing on the matter on hand. Request acceded to.
3. List a fortnight hence. List on 16.06.2023. Proceedings dated 16.06.2023 Read this in conjunction with and in continuation of earlier proceedings made in the previous listing on 02.06.2023. 2.Today, Mr.M.Mohamed Saifulla, learned counsel on record for the petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for respondents are before us. 3.Adverting to the aforementioned earlier proceedings, learned State Additional Public Prosecutor submits that the compilation is ready but he needs to circulate an order dated 15.06.2023 made by a coordinate Hon'ble Division Bench in Madurai yesterday vide W.P.(MD) No.13918 of 2023. Learned Public Prosecutor says that the order dated 15.06.2023 in W.P.(MD) No.13918 of 2023 may have an impact on the case on hand. Let the needful be done. Requests of Prosecutor acceded to. 4.List one week hence. List on 23.06.2023.'
Page Nos.5/19
3. The aforementioned proceedings shall be read as an integral part and parcel of the instant order. Therefore, short forms and abbreviations used in the aforementioned proceedings will continue to be used in the case on hand also.
4. Today, after hearing Mr.M.Mohamed Saifulla, learned counsel for petitioner and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for the respondents, we are inclined to interfere with the impugned order, set aside the same and grant 20 days ordinary leave to the convict prisoner. The reasons are as follows:
i) In the impugned order, the only reason for negativing the leave application of the convict prisoner is Rule 35 of 'the Tamil Nadu Suspension of Sentence Rules, 1982' [hereinafter 'said Rules' for the sake of convenience and clarity], which says that a person against whom the case is pending shall not be granted leave but this Rule 35 of said Rules is also within the sweep of Rule 40 of said Rules which vests with the Government the power to exempt from all or any of the provisions of said Rules. As we exercise constitutional powers, Page Nos.6/19
there is no difficulty in exempting a convict prisoner from Rule 35 of said Rules.
ii) In terms of precedents as regards the convict prisoner itself, the convict prisoner has already been granted leave one week, 12 days and for the period from 15.07.2020 to 24.07.2020 by three different Benches of this Court and the orders are as follows:
Page Nos.7/19
Page Nos.8/19
Page Nos.9/19
Page Nos.10/19
Page Nos.11/19
Page Nos.12/19
Page Nos.13/19
Page Nos.14/19
(iii) The aforementioned orders were made by Hon'ble Division Bench of this Court when two cases cited in the impugned order were pending. The two cases cited in the impugned order are pending for more than 10 years. (iv) In the earlier occasions, when the convict prisoner was granted leave, no uneventful i.e., nothing untoward had happened and the convict prisoner had returned and surrendered after availing the leave.
Page Nos.15/19
5. We crystallize the order for the sake of specificity and the same is as follows:
i) Convict prisoner is granted 20 days ordinary leave under Rule 27 of said Rules as he has sought for ordinary leave on medical grounds (there is no disputation about the medical condition) and for arranging funds for his treatment; ii) 20 days leave shall be from 07.07.2023 to 27.07.2023; iii) As regards the two cases that are now pending against the convict prisoner, we are informed that C.C.No.101 of 2020 pending on the file of Judicial Magistrate, Sendamangalam, Namakkal is listed for hearing on 30.06.2023 and S.C.No.58 of 2013 pending on the file of II Additional District and Sessions Judge, Salem is listed for hearing on 05.07.2023. As the leave is granted from 07.07.2023, both these Courts are requested to give next dates well after 27.07.2023 so that it does not intercede qua 20 days leave which we are granting; iv) Convict prisoner shall sign in the jurisdictional Police Station, Thammampatti police station, Salem District every day Page Nos.16/19
at 10.30 am;
v) The convict prisoner shall surrender in Salem Central Prison by dusk at 05.30pm on 27.07.2023.
6. Captioned writ petition is disposed of in the aforesaid manner with the aforesaid directives.
Though captioned writ petition is disposed of by this order, Registry is directed to list the captioned writ petition under the cause list caption 'FOR REPORTING COMPLIANCE' on 01.08.2023.
(M.S.,J.) (R.S.V.,J.) 23.06.2023 Index : Yes Speaking order gpa Page Nos.17/19
To
1. The Home Secretary (Prison) Home Department, Secretariat Fort St.George, Chennai
2. The Director General of Prison Thalaimuthu Natarajar Building Egmore, Chennai - 600 008
3. The Superintendent of Prison Salem Central Prison, Hasthampatti - 636 007
4. The Public Prosecutor Madras High Court, Chennai Page Nos.18/19
M.SUNDAR, J.
and R.SAKTHIVEL , J.
gpa 23.06.2023 Page Nos.19/19