Bhuvaneswari v. The Secretary
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Bhuvaneswari W/o.S.Dhanapal .. Petitioner Vs.
1.
The Secretary Government of Tamil Nadu Home Department Fort St.George Chennai-600 009.
2.
The Deputy Inspector General of Prison Prison Department Whannels Road, Ansari Estate Egmore, Chennai-600 008.
3.
The Superintendent of Prisons Central Prison, Coimbatore Coimbatore - 641 018.
4.
The Inspector of Police District Crime Branch Salem.
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..Respondents Petition filed under Article 226 of the Constitution of India praying writ of mandamus directing the respondents to direct the respondents to grant parole for petitioner's husband by names S. Dhanapal (Convict No. 23926) S/o Chellaiyan, aged about 60 years, who is now under incarceration at Central prison Coimbatore for a period of 2 months for taking medical treatment based on petitioner's representation dated 25.05.2023. For Petitioner :
Mr.B.Shruthan 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 petitioner's spouse Mr.S.Dhanapal son of Mr.Chellaiyan is a convict prisoner (Convict No.23926) now lodged in Central Prison, Coimbatore; that petitioner's spouse shall hereinafter be referred to as 'said convict prisoner' for the sake of convenience and clarity; that said convict prisoner was convicted and imposed 7 years sentence vide Crl.A.No.105 of 2019 on the file of III Page Nos.2/9
Additional District and Sessions Court, Salem; that petitioner sent a representation on 25.05.2023 requesting for 30 days ordinary leave saying that said convict prisoner is suffering from heart disease, Type 2 Diabetes and has a raw wound is in his right foot; that a medical opinion from a private hospital has been obtained which is to the effect that said convict prisoner has to take treatment for three months failing which health issues may worsen; that captioned writ petition has been filed in this Court on 29.08.2023 with a mandamus prayer qua grant of leave for said convict prisoner.
3. Issue notice.
4. Mr.E.Raj Thilak, learned State Additional Public Prosecutor accepts notice for respondents and submits, on instructions, that 25.03.2023 representation of petitioner has been rejected in and by an order dated 09.06.2023 bearing reference No.11109/tha.ku.3/2023 made by third respondent [hereinafter 'impugned order' for the sake of convenience]. Page Nos.3/9
5. Considering the facts, circumstances of the case and taking into account the fact that the ground on which leave has been sought has not been subjected to disputation or contestation, we shall be embarking upon a legal drill of testing the impugned order though the main prayer is for Mandamus.
6. Considering the limited scope of case on hand, main writ petition was taken up with the consent of both sides though the matter is in the Admission Board.
7. We examined the impugned order and we find that the only reason for rejection of leave plea is Rule 22(1)(b) of 'the Tamil Nadu Suspension of Sentence Rules 1982' [hereinafter 'said Rules' for the sake of convenience and clarity] which says that two years of imprisonment in cases of prisoners sentenced to imprisonment for a period exceeding five years but not more than fourteen years is imperative for grant of ordinary leave.
8. A scanned reproduction of impugned order is as follows: Page Nos.4/9
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9. Learned Prosecutor, adverting to the impugned order submits that Rule 22(1)(b) of said Rules is the lone impediment and therefore, leave plea has been rejected.
10. After carefully considering the submission of both sides and examining the case file, we deem it appropriate to grant 30 days leave to said convict prisoner and reasons are as follows:
(i) The ground on which leave has been sought i.e., medical ailment has not been subjected to disputation or contestation; (ii) Incarceration of said convict prisoner thus far has been uneventful / blemishless;
(iii) As regards Rule 22(1)(b) of said Rules, it is a piece of subordinate legislation made by Executive in exercise of Section 432(5) of 'The Code of Criminal Procedure, 1973 (2 of 1974)' [hereinafter 'Cr.PC' for the sake of brevity and clarity] and constitutional powers of this Court cannot be constricted or stifled by such subordinate legislation. This means that Rule 22(1)(b) of said Rules is not an impediment as regards this Court granting Page Nos.6/9
leave.
11. We have perused the conviction, sentence and we find that case on hand would be an appropriate case to say that said convict prisoner will be given ordinary leave without escort but with a condition that said convict prisoner shall sign everyday in the forenoon session before jurisdictional Magistrate namely, Judicial Magistrate No.I, Attur and shall utilize the leave period only for the ground on which leave has been sought.
12. 30 days leave will be from 04.09.2023 at 10.30 a.m. to 03.10.2023 at 5.30 p.m. On 30 days elapsing, said convict prisoner shall surrender in the office of third respondent i.e., by dusk (5.30 p.m) on 03.10.2023.
13. Captioned Writ Petition is disposed of in the aforesaid manner with the aforementioned directives and observations. There shall be no order as to costs.
(M.S.,J.) (R.S.V.,J.) 01.09.2023 Index : Yes Speaking P.S.: Though captioned writ petition is disposed of, Registry to list the Page Nos.7/9
captioned writ petition under the cause list caption 'FOR REPORT' on 12.10.2023.
mk M.SUNDAR, J., and R.SAKTHIVEL, J., mk To 1.
The Secretary Government of Tamil Nadu Home Department Fort St.George, Chennai-600 009.
2.
The Deputy Inspector General of Prison Prison Department Whannels Road, Ansari Estate Egmore, Chennai-600 008.
3.
The Superintendent of Prisons Central Prison, Coimbatore Coimbatore - 641 018.
4.
The Inspector of Police District Crime Branch Salem.
5.
The Public Prosecutor High Court, Madras.
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