Rajesh v. The Principal Secretary To Government
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30.11.2023 CORAM :
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Rajesh ... Petitioner vs.
1.The Principal Secretary to Government, Home, Prohibition & Excise (Prison - IV) Fort St. George, Chennai - 600 009.
2.Inspector General of Prisons, O/o. Prison Department Headquarters, Whannels Road, Egmore, Chennai - 600 008.
3.The Deputy Inspector General of Prisons, Trichy Range, Race Course Road, Trichy - 620 023.
4.The Superintendent of Prisons, Central Prison, Trichy - 620 020.
... Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order passed by the 3rd respondent vide her proceedings in No. 106/MuVu/2023 dated 10.11.2023 and quash the same as illegal and also consequent direction may be issued to the respondents to grant 40 days ordinary leave to petitioner's brother Senthil S/o. Anbalagan Convict No. 20107 confined at 1/17
Central Prison, Tiruchirappalli within stipulated time. For Petitioner : Mr.C.Karthikeyan For Respondents : Mr.A.Thiruvadi Kumar, Additional Public Prosecutor
O R D E R
[Order of the Court was made by M.SUNDAR, J.] Captioned 'Writ Petition' ['WP' for the sake of brevity] has been filed in this Court on 27.11.2023.
2. Factual matrix in a nutshell is that petitioner's blood brother one Thiru.Senthil, son of Anbalagan (Prisoner No.20107) now lodged in Trichy Central Prison is serving life sentence having been convicted vide judgment and sentence dated 12.04.2005 in S.C.No.01 of 2004 on the file of learned Sessions Judge, Nagapattinam, which was confirmed in an appeal by this Court vide judgment dated 25.09.2007 in Crl.A.No.492 of 2005; that Writ Petitioner's brother 'Thiru.Senthil' shall be referred to as 'said prison inmate' for the sake of convenience and clarity; that a representation dated 31.10.2023 was sent by Writ Petitioner seeking 40 days ordinary leave for said prison inmate on the ground that wife of said prison inmate (Mrs.Philomina) has renal failure and the presence of said prison inmate is imperative to arrange medical treatment for her and also to take care of 2/17
her; that this plea was rejected by the third respondent in and by an 'order signed on 10.11.2023 (as regards date, only month and year were given) bearing reference No. 106/Kc/2023' (hereinafter 'impugned order' for the sake of brevity, convenience and clarity); that impugned order has been made solely citing Rule 21(b) of 'The Tamil Nadu Suspension of Sentence Rules, 1982' ('said Rules' for brevity) which makes prisoner who was sentenced under Sections 392 to 402 of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of convenience and clarity] is not eligible for ordinary leave; that it is to be noted that in the case on hand said prison inmate was convicted inter alia under Section 392 of IPC; that assailing the impugned order, captioned WP has been filed.
3. Issue Notice.
4. Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor accepted notice for all the respondents and submitted, on instructions, that the only impediment in granting 40 days ordinary leave to said prison inmate is aforementioned Rule 21(b) of said Rules as said prison inmate has been convicted inter alia qua Section 392 of IPC.
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5. This Court carefully considered the submissions on both sides. This Court also carefully perused the case file. This Court comes to the conclusion that the impugned order deserves to be interfered with and the plea of Writ Petitioner seeking 40 days ordinary leave without escort for his brother ie., said prison inmate deserves to be acceded to. The reasons are as follows: a) as already alluded to supra, the only ground on which, the impugned order has been made is Rule 21(b) of said Rules. As regards Rule 21(b) of said Rules, this Court has already held that the same cannot be an impediment. This is vide Akram Khan's case (Akram Khan Vs. The State Rep. by its The Deputy Inspector General of Prison and another) in W.P.No.21242 of 2023, dated 19.07.2023 and a scanned reproduction of the same is as follows:
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b) if Rule 21(b) of said Rules does not come in the way owing to Akram Khan principle, the entire substratum of the impugned order 13/17
gets eroded and the impugned order becomes liable for being set aside in the legal drill on hand;
c) as regards Akram Khan principle, there is no disputation that the same has been given legal quietus and has not been carried in an appeal;
d) in the given case on hand, there is no disputation or contestation that the said prison inmate's wife has suffered renal failure and is undergoing treatment. The medical certificate is not subjected to any disputation or contestation; e) said prison inmate has already gone on leave (ordinary leave) as many as 43 occasions without escort and on all occasions, the said prison inmate has returned and surrendered diligently and the leave periods have passed without any untoward incident. f) said prison inmate remains incarcerated for 19 years 6 months and 20 days as of today;
g) said prison inmate is not involved in any prison offence; 14/17
h) to put it differently, absent Rule 21(b) of said Rules impediment (which has been removed vide Akram Khan principle), the said prison inmate otherwise becomes eligible for 40 days ordinary leave.
6. In the light of the narrative, discussion and dispositive reasoning thus far, the following order is made:
(i) impugned order ie., order signed on 10.11.2023 (only month and year are given) bearing reference No.106/Kc/2023 made by the third respondent is set aside;
(ii) said prison inmate ie., Thiru.Senthil, son of Anbalagan (convict No.20107) now lodged in Central Prison, Tiruchirappalli is granted 40 days leave from 02.12.2023 (10.30 a.m.) to 10.01.2024 subject to the conditions which are adumbrated infra; (iii) said prison inmate shall stay with his wife at Kovilputhu 15/17
Street, Valivalam Post, Thirukkuvalai Taluk, Nagapattinam District; (iv) said prison inmate shall not partake in any activity which is not connected with the ground on which leave is granted; (v) said prison inmate shall sign in the Court of the jurisdictional Magistrate (this Court is informed that jurisdictional Magistrate is Judicial Magistrate, Kilvelur) every Monday and Friday; (vi) said prison inmate shall surrender in the office of the fourth respondent on 11.01.2024 Thursday by 5.30 p.m. ie., by dusk.
7. Captioned Writ Petition is disposed of in the aforesaid manner with the aforesaid directives. There shall be no order as to costs. Sd/- Assistant Registrar(AD-II) // True Copy // /12/2023 Sub Assistant Registrar(CS) vsm 16/17
To 1.The Principal Secretary to Government, Home, Prohibitaion & Excise (Prison - IV) Fort St. George, Chennai - 600 009.
2.Inspector General of Prisons, O/o. Prison Department Headquarters, Whannels Road, Egmore, Chennai - 600 008.
3.The Deputy Inspector General of Prisons, Trichy Range, Race Course Road, Trichy - 620 023.
4.The Superintendent of Prisons, Central Prison, Trichy - 620 020.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Copy to The Judicial Magistrate,Kilvelur DATED : 30.11.2023 KB(04.12.2023) 17P 7C Madurai Bench of Madras High Court is issuing certified copies in this format from 17.07.2023. 17/17