Maheswari v. The State Rep By Its

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 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 Page Nos.1/12

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

O R D E R

[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, Page Nos.2/12

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 Page Nos.3/12

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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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, Page Nos.5/12

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: Page Nos.6/12

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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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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 Page Nos.10/12

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 Page Nos.11/12

M.SUNDAR, J.

and R.SAKTHIVEL , J.

gpa 27.06.2023 Page Nos.12/12