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2016 Supreme(Mad) 2768
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N. PRAKASH, J.
N. Bhuvaneswari – Appellant
Versus
The State of Tamil Nadu Represented by its Secretary Home Department – Respondent
W.P. No. 26605 of 2016
Decided On : 30-08-2016
For the Appellant : Mr. S.R. Rajagopal for Mrs. Vijayalakshmi Rajagopal.
For the Respondent: Mr. C. Emalias, Additional Public Prosecutor.
Headnote:
Tamil Nadu Suspension of Sentence Rules, 1982 - Section 20(iv) – Prisons Act, 1894 - Section 3(1) - Indian Penal Code, 1860 - Sections 120-B, 148, 341 and 302 – Criminal Produce Code, 1973 - Section 432(1) – Criminal Conspiracy and Murder – Convicted - Power to suspend or remit sentences – The Term "Prison" - Power to suspend or remit sentences Pending cases - Petitioners husband is a life convict undergoing imprisonment for life, pursuant to his conviction and sentence by I Additional District and Sessions Judge, Salem in S.C. for various offences, including offence under Section 302 IPC (5 counts) - His appeal to this Court in Crl.A. was dismissed on with a modification that sentences imposed by Trial Court should run concurrently, instead of consecutively - According to petitioner, her husband is in prison for last 16 years - Held, Rule 35 is intended to ensure that Executive does not release a convict prisoner on ordinary leave during pendency of trial against him and thus, shirk responsibility to produce him before Trial Court, irrespective of whether a person is on bail in that case or not - Executive power to release a convict prisoner on leave, is subject to responsibility of jail authorities to produce him before the Trial Court for hearings - In the teeth of legislative interdict under Rule 35 of the Suspension of Sentence Rules, if unbridled power is given to Executive to grant leave to a convict prisoner, ignoring responsibilities to produce him before the Court for trial, that may lead to an abuse of executive powers, which cannot be countenanced – Court opinion, Rule 35 cannot be interpreted to mean that it will not apply to a convict prisoner, who, incidentally is also a remand prisoner, whether, he is on bail or otherwise - Writ petition dismissed
1. This writ petition is filed questioning the legality and validity of the letter dated 12.07.2016 in No.2330/Tha.Ku.3/2016 and for a direction to the respondents to grant ordinary leave to the petitioner's husband under Section 20(iv) of the Tamil Nadu Suspension of Sentence Rules, 1982 (for brevity “the Suspension of Sentence Rules”) for making arrangements, participating and solemnizing marriage of the petitioner's daughter Ms. Narthika.
2. The incontrovertible facts in this case are as follows:
2.1 The petitioner's husband Nagarajan @ Koola Nagarajan is a life convict no.2330 undergoing imprisonment for life, pursuant to his conviction and sentence by the I Additional District and Sessions Judge, Salem in S.C. No.34 of 1999 on 20.10.2004 for various offences, including the offence under Section 302 IPC (5 counts). His appeal to this Court in Crl.A. No.140 of 2005 was dismissed on 01.02.2007 with a modification that the sentences imposed by the Trial Court should run concurrently, instead of consecutively.
2.2 According to the petitioner, her husband Nagarajan is in prison for the last 16 years. While so, a case in Mettur P.S. Crime No.105 of 2011 was registered against him for offences under Sections 120-B, 148, 341 and 302 IPC and final report was filed against him. The case was taken on file and is pending trial in S.C. No.302 of 2015 before the II Additional District and Sessions Judge, Salem. At this juncture, the petitioner made a representation to the Government for granting ordinary leave to Nagarajan under the Suspension of Sentence Rules, which was rejected by the impugned order on the ground that he will not be entitled to leave as he is facing trial in S.C. No.302 of 2015 before the II Additional District and Sessions Court, Salem. The impugned order relies upon Rule 35 of the Suspension of Sentence Rules to deny leave to Nagarajan, challenging which, this writ petition has been preferred by Nagarajan's wife, with a further relief of a direction to the respondents to grant ordinary leave to Nagarajan under Rule 20(iv) of the Suspension of Sentence Rules.
3. Heard Mr. S.R. Rajagopal, learned counsel for the petitioner and Mr. C. Emalias, Additional Public Prosecutor appearing for the respondents.
4. In the counter affidavit filed by the State, it is averred that Nagarajan was granted leave in 2011 and on his release, he had planned the murder of a person, pursuant to which, the second case in Mettur P.S. Crime No.105 of 2011 was registered against him, which is pending trial in S.C. No.302 of 2015. In the counter, various acts of indiscipline committed by Nagarajan in the prison have also been catalogued. Of course, this need not detain this Court any further, because, the impugned order is only on the ground of prohibition envisaged by Rule 35 of the Suspension of Sentence Rules.
5. Mr. S.R. Rajagopal, learned counsel for the petitioner, placed strong reliance on the following judgments and contended that the right under Article 21 of the Constitution of India is available to a prisoner in all its fours and that cannot be diluted by any law, much less a subordinate legislation.
(i) Sunil Fulchand Shan vs. Union of India and Others, (2000) 3 SCC 409;
(ii) Poonam Lata vs. M.L. Wadhavan and others, (1987) 3 SCC 347;
(iii) Sheela Barse vs. State of Maharashtra, (1983) 2 SCC 96;
(iv) Francis Coralie Mullin vs. Administrator, Union Territory of Delhi and others, (1981) 1 SCC 608;
(v) P. Nedumaran vs. The State of Tamil Nadu, represented by Secretary to Government (Home) Department, Chennai and another, 2001 (4) CTC 549, (Single Bench judgment of this Court);
(vi) Javed Ahmed Abdul Hamid Pawala vs. State of Maharashtra, (1985) 1 SCC 275;
(vii) D. Bhuvan Mohan Patnaik and others vs. State of Andhra Pradesh and others, (1975) 3 SCC 185;
(vii) State of A.P. vs. Challa Ramkrishna Reddy and others, (2000) 5 SCC 712;
(viii) Sunil Batra vs. Delhi Administration and others, (1978) 4 SCC 494.
6. Mr. Rajagopal relied upon paragraph nos.
