In W.P.(MD) No.13301 of 2022-MAD HC- Leave cannot be claimed as matter of right under Rule 3 of Tamil Nadu Suspension of Sentence Rules, 1982; Mandamus not to be issued for enforcing such concession: Madras HC Justices P.N. Prakash & R. Hemalatha [19-07-2022]

Read Order: SIRAJ NISHA V. THE STATE REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT AND ORS 

Mansimran Kaur

Madurai , July 22, 2022: In a case pertaining to the Tamil Nadu Suspension of Sentence Rules, 1982, the Madurai Bench of the Madras High Court has opined that leave cannot be claimed as a matter of right under Rule 3. It is a concession granted to a prisoner and therefore, a mandamus cannot be issued for enforcing a concession.

The Division bench of Justice P.N. Prakash and Justice R. Hemalatha  dismissed the present writ petition which  was instituted for assailing the notice dated May 13, 2022 and for issuance of direction to the Prison Authorities to grant E.L.(Emergency Leave) to the petitioner’s son for a period of three weeks. The Bench opined that the executive power to suspend a sentence by granting leave is unavailable to a person facing trial before a competent Court. 

Relevant facts necessary for adjudication of the present petition were that the convict prisoner Ibrahimsha, lodged in the Central Prison, Maduarai was convicted and sentenced on several grounds of imprisonment and was awarded imprisonment for life for commission of the offence under Section 302 of IPC.  On appeal, the conviction and sentences were confirmed by a Division Bench of this Court.

The petitioner in the present case was the mother of the convict. She was seeking an emergency leave for her son on the ground that she was very sick and may not live long. However, the said application was rejected by the Superintendent of the Central Prison, Madurai, on May 13, 2022. 

The leave application was rejected on the ground that there were other cases pending against the prisoner and hence, under Rule 35 of the Tamil Nadu Suspension of Sentence Rules, 1982, leave cannot be granted to him. It was this impugned order that was assailed by way of present petition. 

Referring to Rule 35, the Bench opined that if such a convict prisoner is already on bail in that case, the trial Court would ensure his attendance by issuing Prisoner’s Transfer Warrant under Section 267 Cr.P.C. If the convict prisoner is not on bail in that case, the trial Court would remand him to custody under Section 309 Cr.P.C. with a direction to the prison authorities to produce him on a particular date. 

After hearing the submissions of the parties, the Court opined that a convict prisoner, who is facing trial in a Court of law, is kept in the custody of the prison authorities under the orders of the Court for that case. It would, therefore, be impermissible for the executive to circumvent a judicial order by releasing the prisoner on leave. That would, ex facie, amount to an interference in the administration of justice by the Court, the Court stated. 

It would also fall foul of the principle of separation of powers enshrined in Article 50 of the Constitution of India. Rule 35 of the Sentence Suspension Rules, thus, strikes a balance. The executive power to suspend a sentence by granting leave is unavailable qua a person facing trial before a competent Court, the Court further noted. Further reliance was placed on the Judgment of the Apex Court in Home Secretary (Prison) & Ors., v. H.Nilofer Nisha. 

Thus, in light of the above stated observations, the instant writ petition was dismissed on account of being meritless.