Zubaida Begum v. The State Rep By Its
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 11.11.2022 PRONOUNCED ON : 29.11.2022
CORAM:
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH AND THE HONOURABLE Mr.JUSTICE RMT.TEEKAA RAMAN W.P.No.25682 of 2022 & W.M.P. No.24719 of 2022 Zubaida Begum Petitioner v The State represented by its Secretary to Government of Tamil Nadu Department of Home Fort St. George Chennai 600 009 2.
The Deputy Inspector General of Prison Vellore Range Vellore 632 001 3.
The Superintendent Central Prison Vellore 632 002 Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of mandamus, directing the respondents to grant ordinary leave for 40 days to the detenu, Sarfudeen, S/o.P.K.Abdul 1/6
Salam, aged about 45 years, Convict No.6583, confined in the Central Prison, Vellore.
For petitioner : Dr.S.Manoharan For respondents : Mr.R.Muniyapparaj Additional Public Prosecutor
ORDER
P.N.PRAKASH, J.
The petitioner is the wife of one Sarfudeen, S/o Abdul Salam (Convict No.6583), confined at the Central Prison, Vellore. The petitioner addressed a representation dated 22.08.2022 seeking 40 days ordinary leave for her husband on the ground that her health condition is very bad and she needs his presence for mobilising funds for her treatment as well for eking out her family's livelihood, in terms of Rule 20(i) and (vii) of the Tamil Nadu Suspension of Sentence Rules, 1982. Thereafter, the petitioner has filed the instant writ petition seeking a mandamus to the prison authorities to grant 40 days ordinary leave to her husband. In response to the above, the in charge Superintendent of Prison, Central Prison, Vellore, has filed a counter affidavit dated 28.09.2022, wherein, at paragraph nos.8 to 10, it is stated as under: 2/6
"8.
I further submitted that the averments contained in Para 8, 9 and 10 of the affidavit. It is submitted that the petitioner submitted a representation on 22.08.2022. It was received by the third respondent herein, the Superintendent, Central Prison, Vellore, on 22.08.2022 with a request to grant 40 days ordinary leave for her husband life convict prisoner, no.3831 Sarfudeen S/o Abdul Salam, for making arrangements for wife's medical treatment.
The above said life convict prisoner was involved in the Coimbatore Serial Bomb Blast case for communal basis he was convicted and sentenced under section 3,4(b),5,6 of the Explosive Substances Act, 1908, section 3 r/w 25(1-B)(a) of the Arms Act, 1959 sentenced to imprisonment for life which is an ineligible section to grant of ordinary leave as per the amendments to the Tamil Nadu Suspension of Sentence Rules, 1982, in G.O. (MS) No.205 Home (Prison-V) Department dated 25.04.2022, Tamil Nadu Prison Manual Volume III Rules, No.21(h) (1) terrorist crimes and section 435 Cr.P.C. The 3rd respondent is not empowered to grant ordinary leave for 40 days. Hence, the representation of the petitioner request was rejected by the third respondent vide this office letter no.R3/6813/2022 dated 16.09.
2022 and the same intimation was issued to the petitioner on 16.09.2022.
9.
Further, it is submitted that the petitioner's husband is not eligible for ordinary leave and emergency leave since, his appeal is pending before the Hon'ble Supreme Court of India, New Delhi in Diary No.35989/2010, Crl.A. No.1205-1208/2021 dated 12.05.2021, SLP (Crl.) No.1851-1854/2011 dated 21.02.2011. As per the order passed by this Hon'ble High Court of Madras in W.P. No.10265 of 2021 dated 18.02.2022 and Wasib Khan vs. State and the same was Director General of Police/Director General of Prisons and Correctional Services, Chennai issued a circular in memo No.1953/PS4/2021 dated 14.03.2022.
10.
In these circumstances, it is humbly prayed that this Hon'ble Court may be pleased to dismiss the W.P. No.25682/2022 and thus render justice."
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A reading of the above shows that the petitioner's representation dated 22.08.2022 seeking ordinary leave has been rejected by order dated 16.09.2022 and the same has also been intimated to the petitioner.
The learned counsel for the petitioner submitted that all the earlier Benches, both Single Benches and Division Benches, except this Division Bench, have been granting leave munificently. In support of the said submission, he placed reliance on the following orders: i. M. Uma Manickam v State (Single Bench)1 ii. A. Fathima v The State (Single Bench)2 iii. Pooranam v The Superintendent, Central Prison, Madurai (Division Bench)3 iv. Mohammed Ghouse v The State (Division Bench)4 v. Zubaida Begum v The State (Division Bench)5 vi. R. Chellammal v The State (Division Bench)6 We do not want to embark upon the exercise of distinguishing each of the aforesaid orders in the light of the statutory provisions in the 1 W.P. No.25184 of 2014 decided on 15.10.2014 2 W.P. No.980 of 2015 decided on 29.01.2015 3 W.P. (MD) No.8089 of 2013 decided on 20.08.2013 4 H.C.P. No.1673 of 2018 decided on 27.08.2018 5 H.C.P. No.1937 of 2020 decided on 20.11.2020 6 W.P. No.11939 of 2022 decided on 29.08.2022 4/6
Tamil Nadu Suspension of Sentence Rules, 1982, the authoritative pronouncement of the Constitution Bench of the Supreme Court in Nanavati v State of Mumbai7 and the law laid down by the Supreme Court in Home Secretary (Prison) and Others v H. Nilofer Nisha8, because, it would preempt any challenge to the rejection order by seeking a writ of certiorari.
In the result, this writ petition is closed with liberty to the petitioner to challenge the rejection order dated 16.09.2022, if so advised. Costs made easy. Connected W.M.P. is closed.
[P.N.P., J.] [T K R, J.] 29.11.2022 cad AIR 1961 SC 112 (2020) 14 SCC 161 5/6
P.N.PRAKASH, J.
AND RMT.TEEKAA RAMAN, J.
cad 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 Vellore Range Vellore 632 001 3.
The Superintendent Central Prison Vellore 632 002 4.
The Public Prosecutor Madras High Court Chennai 600 104 Pre-delivery order in .11.2022 6/6