A.Rahamath Nisha v. The State Represented By Its
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.03.2023
CORAM
THE HON'BLE Mr.JUSTICE M.SUNDAR and THE HON'BLE Mr.JUSTICE M.NIRMAL KUMAR A.Rahamath Nisha ... Petitioner (Wife of detenue) -VsThe State represented by its
1. The Secretary to Government of Tamil Nadu, Department of Home, Fort St. George, Chennai-600 009.
2. The Deputy Inspector General of Prison, Chennai Range, Chennai-600 008.
3. The Superintendent, Puzhal-I, Central Prison, Chennai-600 066.
.. Respondents Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the Respondents to grant ordinary leave for three months without escort from 07.03.2023 to the detenue, N.S.Abdul Hakkim S/o. Syed Mohammed aged about 45 years Convict No.4662, detained at Central prison, Puzhal, Chennai.
For Petitioner :
Mr.S.Manoharan For Respondents :
Mr.R.Muniyapparaj Additional Public Prosecutor *****
ORDER
[Order of the Court was made by M.SUNDAR, J.] Captioned writ petition has been filed with a prayer seeking mandamus qua respondents. The mandamus sought is by way of a direction to respondents to grant ordinary leave for three months (from 07.03.2023).
2. Dr.S.Manoharan, learned counsel on record for petitioner (to be noted, wife of convict prisoner is the petitioner before us) and Mr.R.Muniyapparaj, learned Additional Public Prosecutor on behalf of all the three respondents are before us.
3. With the consent of both sides, main writ petition has been taken up.
4. Leave has been sought primarily owing to acute ill-health of the convict prisoner. To be noted, in an by an order dated 03.02.2023 made in WP.No.853 of 2023, this Court had already granted 30 days leave and the
convict prisoner is already on leave. It is further to be noted that these 30 days leave elapses today (07.03.2023).
5. We deem it appropriate to reproduce our aforementioned earlier order dated 03.02.2023 made in WP.No.853 of 2023. A scanned reproduction of the same is as follows:
6. Aforementioned order is telltale qua the crux and gravamen of the issue. As regards the trajectory the matter has taken post our aforementioned earlier order, we are informed that the convict prisoner who is on leave is taking treatment and is inter alia under the management of a Radiation Oncologist in a hospital at Coimbatore.
7. Reverting to the captioned matter, Dr.S.Manoharan, learned counsel took us through medical reports. Two of the reports dated 21.02.2023 and 27.02.2023 are of relevance. A careful perusal of reports brings to light that a Craniotomy surgery of the tumor was done in Stanley Medical College earlier and Histopathology report shows that it is a case of Gliosarcoma Grade IV. We also notice that it is clear that prognosis of tumor is poor and average survival is between 1 and 1 1⁄2 years.
8. As the earlier surgery (Craniotomy surgery) was done in a Government Hospital namely Stanley Medical College/Hospital and as there is no disputation or contestation regarding medical reports before us, we are of the view that the convict prisoner is entitled to further leave.
9. As regards leave, the same is governed by 'Tamil Nadu Suspension of Sentence Rules 1982' [hereinafter 'said Rules' for the sake of convenience and clarity]. We are conscious of the fact that vide proviso to Rule 22(2)(c), there is a cap of 40 days in one spell. However, Rule 40 of said Rules makes it clear that Government i.e., Executive arm of the State has power to exempt any person from all or any of the provisions of said Rules. Therefore, it is clear that there is no impediment in this Court exempting anyone from said Rules. The result is, applying Rule 40, we find that this is a fit case for this Court to exempt the convict prisoner in the case on hand from the rigor of proviso to Rule 22(2)(c) of said Rules and grant three months leave as sought for.
10. This takes us to the question of escort. Learned counsel for petitioner submits that it would be desirable to extend leave without escort. The reason which learned counsel for petitioner projected before us is, in the course of past 30 days, when the convict prisoner wanted to go to hospital or meet his doctor, there was delay as the escort party said it has to take permission from their higher/superior officers. Taking into account the medical condition and more particularly the prognosis of tumor which has
been alluded to supra, we make it clear that this is a fit case to give a directive that the escort party shall ensure that there is no such delay and that the convict prisoner is able to continue his treatment without being impeded. Treatment has to be seamless. We are also informed that this is a case where the convict prisoner is not paying for the escort party and the State is absorbing the costs. In other words, we make it clear that leave will be continued with escort subject only to this directive which really tantamounts to stating the obvious or in other words, the directive is only a matter of stating the obvious.
11. Ergo, the sequitur is, the petitioner's husband Mr.N.S.Abdul Hakkim, son of Syed Mohammed, Convict No.4662 who was lodged in Central Prison, Puzhal is granted three months leave for medical treatment [from 07.03.2023 to 07.06.2023] with the same conditions imposed by Superintendent of Central Prison-I, Chennai vide order dated 29.01.2023. As regards escort party, we have already delineated that escort party shall not impede the medical treatment of the convict prisoner and that his medical treatment shall be seamless. On expiry of leave, the convict
prisoner shall surrender before the Central Prison, Puzhal i.e., on 07.06.2023 by 5.00 p.m.
12. Captioned writ petition disposed of in the aforesaid manner. There shall be no order as to costs.
(M.S,J.) (M.N.K.,J.) 07.03.2023 Index:Yes/No kmi P.S.: Upload forthwith To
1. The Secretary to Government of Tamil Nadu, Department of Home, Fort St. George, Chennai-600 009.
2. The Deputy Inspector General of Prison, Chennai Range, Chennai-600 008.
3. The Superintendent, Puzhal-I, Central Prison, Chennai-600 066.
M.SUNDAR, J.
and M.NIRMAL KUMAR, J.
kmi 07.03.2023