Muthulakshmi v. The State Represented By Its
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR AND THE HONOURABLE MR.JUSTICE R.SAKTHIVEL W.P.NO.26500 OF 2023 Muthulakshmi ..
Petitioner / wife of the detenu VS.
The State represented by its 1.The Deputy Inspector General of Prison Coimbatore Zone Coimbatore.
2.The Superintendent Coimbatore Central Prison Coimbatore.
..
Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order bearing No.17027/Tha.Ku.3/2023 dated 22.08.2023 passed by the second respondent and quash the same and consequently direct the respondents to grant ordinary leave for 30 days without escort to the detenu Magesh, aged about 40 years, S/o. Krishnan bearing Convict No.19592 confined at Central Prison, Coimbatore. 1/21
For Petitioner :
Mr.M.Ezhilarasu For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.SUNDAR, J.] Captioned writ petition has been presented in this Court on 05.09.2023 with a Certiorarified Mandamus prayer. 2.Factual matrix in a nut shell i.e., facts that are essential and imperative for appreciating this order are that the writ petitioner's spouse one Thiru. Magesh, Son of Krishnan, is a prison inmate {Convict Prisoner (Convict No.19592)} now in Central Prison, Coimbatore; that the writ petitioner sent a representation dated 14.08.2023 to the respondents seeking one month leave without escort on the ground that arrangements have to be made for education of children who are in school. 3.Issue notice.
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4.Mr.E.Raj Thilak, learned State Additional Public Prosecutor accepts notice for all respondents and submits that the only impediment in grant of leave or in other words the impugned order has been made owing to Rule 21 (b) of 'The Tamil Nadu Suspension of Sentence Rules 1982' [hereinafter 'said Rules' for the sake of convenience and clarity] which reads as follows:
'21.Non-eligibility for ordinary leave. - The following categories of prisoners shall not be eligible for ordinary leave:- (a)...
(b)Prisoners sentenced under sections 392 to 402 of the Indian Penal Code (Central Act 45 of 1860); (c)...
(d)...
(1)...
(2)...
(3)...
(4)...
(5)...
(6)...
(7)...
(e)...
(f)...
(g)...
(h) (1) (2) (3) (i) (j) (k)'
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5.Owing to the narrow compass in which the captioned matter turns, with the consent of both sides, the main writ petition was taken up and heard out in the admission Board itself.
6.After hearing both sides, we are of the view that the impugned order deserves to be interfered with (to be noted certiorari limb) and ordinary leave sought qua convict prisoner deserves to be acceded to (mandamus limb). The reasons are as follows:
(i)the ground or reason given for leave has not been subjected to disputation or contestation; (ii)the ground snugly fits into sub Rules (i) and (vii) of Rule 20 of said Rules;
(iii)as regards Rule 21(b) of said Rules, the same being the sole impediment we deem it appropriate to say that Mr.Akram Khan's case vide 4/21
order dated 19.07.2023 in W.P.No.21242 of 2023 we had held that offences pertaining to Sections 392 to 402 of 'The Indian Penal Code (45 of 1860)' ['IPC' for the sake of convenience and brevity] viz., dacoity and robbery were made part of Rule 21(b) of said Rules under different social settings.
7.We deem it appropriate to scan and reproduce entire Akram Khan's case and a scanned reproduction of order dated 19.07.2023 made in W.P.No.21242 of 2023 is as follows:
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8.The aforementioned Akram Khan's case order principle is Rule 21(b) of said Rules which was made more than four decades ago was made in a different social context i.e., different social setting and the same has now become anachronistic. To be noted, four decades ago when said Rules were made there was imminent need to contain dacoity, robbery etc., necessitating the placing of such offences in one category and raising the rigour in dealing with such offences.
9.To be noted, Akram Khan's case principle has been reiterated by this Court in Sathyakala's case reported in 2023:MHC:3911 2023.
10.The conduct of the prison inmate in the prison i.e., conduct during the period of incarceration for six years eleven months and ten days (as of 08.09.2023) has been blemishless and therefore, there is enough reason to prima facie believe that the prison inmate is gravitating towards reformation.
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11.As this is the first occasion on which prison inmate would be going on leave, we deem it appropriate to say that leave is granted with escort.
12.In the light of the narrative, discussion and dispositive reasoning articulated thus far, the following order is made: (i) The impugned order i.e., order dated 22.08.2023 bearing reference No.17027/Tha.Ku.3/ 2023 made by the second respondent is set aside (inter alia by applying Akram Khan principle);
(ii) Writ petitioner's spouse Thiru. Magesh (Convict No.19592) Son of Thiru. Krishnan, now in Central Prison, Coimbatore is granted Ordinary Leave from half past ten on 30.09.2023 to 31.10.2023 with escort;
(iii) Prison inmate (writ petitioner's spouse Thiru. Magesh) shall surrender before the second respondent by dusk i.e., by 05.30 p.m. on 01.11.2023 18/21
(Wednesday);
(iv) Prison inmate shall utilize the leave only for the purpose which it has been granted i.e., education of his children and shall not part take in any other activities.
\ 13.All concerned shall comply with this order on the same being uploaded in the official website of this Court without insisting on certified copies (hard copies). To be noted, such uploaded versions are water marked and QR coded.
14.Captioned WP disposed of in the aforesaid manner. There shall be no order as to costs.
(M.S., J.) (R.S.V., J.) 15.09.2023 Index : Yes Speaking Note : Upload forthwith TK P.S-I: Though the captioned writ petition is disposed of, Registry shall list the captioned writ petition under the cause list caption 'FOR 19/21
REPORTING COMPLIANCE' on 09.11.2023.
M.SUNDAR, J.
AND R.SAKTHIVEL, J.
TK To 1.The Deputy Inspector General of Prison Coimbatore Zone Coimbatore.
2.The Superintendent Coimbatore Central Prison Coimbatore.
3.The Public Prosecutor High Court, Madras.
W.P.NO.26500 OF 2023 15.09.2023 20/21
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