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2019 Supreme(Mad) 1012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.R. SWAMINATHAN, J.
Rahmath Nisha - Appellant
Versus
The Additional Director General of Prison, O/o the Additional Director General of Prison, Chennai & Others - Respondents
WP(MD)No. 12695 of 2019
Decided on : 01-06-2019
Advocate Appeared:
For the Petitioner:A. Abdul Kabur, Advocate.
For the Respondents: R. Anandraj, Additional Public Prosecutor.
The court recognized the right of a remand prisoner to perform the last rites of his deceased wife and directed the prison authorities to facilitate his participation in the funeral and limited time with his family.
Headnote:
Mandamus - Prisoner's Leave for Wife's Funeral - The court directed the prison authorities to allow the remand prisoner to attend his wife's funeral and perform customary religious rites, and to spend time with his children and close relatives for a limited period.
Fact of the Case:
The petitioner sought a writ of mandamus to direct the prison authorities to grant leave to her brother, a remand prisoner, to attend his wife's funeral.
Finding of the Court:
The court acknowledged that the petitioner's brother was not a convict and therefore not entitled to leave, but recognized his right to perform the last rites of his deceased wife. The court directed the prison authorities to allow the prisoner to attend the funeral, perform customary religious rites, and spend time with his children and close relatives for a limited period.
Issues: Prisoner's entitlement to leave for wife's funeral, jurisdiction of the court to grant bail, and arrangements for the prisoner's welfare and custody during the leave period.
Ratio Decidendi: The court balanced the prisoner's right to perform the last rites of his deceased wife with the constraints of his remand status and the jurisdictional limitations on granting bail, ultimately directing the prison authorities to facilitate the prisoner's participation in the funeral and limited time with his family.
Final Decision: The writ petition was allowed, and the court directed the prison authorities to allow the remand prisoner to attend his wife's funeral, perform customary religious rites, and spend time with his children and close relatives for a limited period.
(Prayer: Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, to direct the respondents 1 and 2 to grant 3 days leave to the petitioner's brother namely Mohamed Shalin son of Kajah Mohaideen aged about 39 who is confined at Palayamkottai Central Prison, Tirunelveli as a remand prisoner (R.P.No.2829) in order to attend his wife's funeral by considering her representation dated 01.06.2019 sent through E-mail.)
1. Heard the learned counsel on either side.
2. The petitioner is the sister of one Mohamed Shalin. He is presently confined as a remand prisoner at Palayamkottai Central Prison, Tirunelveli (R.P.No.2829). He is an accused in several Criminal Cases. The wife of Mohamed Shalin, namely Mohamed Ramzan, passed away this morning at about 4.00 a.m. The factum of the death is not in dispute.
3. The petitioner's prayer is that her brother must be granted three days leave to perform the last rites.
4. It is true that the petitioner is not a convict. Therefore, the question of granting leave will not arise. It is a fact that Mohamed Shalin was remanded to judicial custody by the learned Additional CMM, Bangalore, for the offences under UAP Act. In fact originally he was confined at Parapana Agrahara Prison, Bangalore. He was transferred to Palayamkottai Prison, to face the trial in S.C.No. 163/2014 on the file of the Chief Judicial Magistrate, Nagercoil. Therefore, as rightly pointed out by the learned Additional Public Prosecutor, this Court will not have jurisdiction to grant bail also. However, one cannot ignore the fact that Mohamed Shalin is entitled to perform the last rites of his deceased wife. Therefore, this Court directs the Prison Authorities / Second Respondent to take the remand Prisoner Mohamed Shalin (R.P.2829) today (01.06.2019) to his house at Aasuran East Street, Melapalayam, Tirunelveli. Mohamed Shalin shall be permitted to perform the usual customary religious rites.
5. The learned counsel appearing for the petitioner states that “Janazah” will be performed at Periyakuthuba Pallivasal, Melapalayam. The authorities shall allow the prisoner to take part in the said ceremony also. After the funeral ceremony he shall also be allowed to go to burial ground at Melapalayam in the same Pallivasal premises. After the funeral rites are over Mohamed Shalin will be allowed to remain with his three children and close relatives for about one hour, after which he shall be brought back to Central Prison, Palayamkottai. Since the children are minors and arrangements will have to be made for their welfare, the second respondent is directed to take Mohamed Shalin to his residence tomorrow (02.06.2019) and day after tomorrow (03.06.2019) and he will be permitted to be in his house from 10.00 a.m. to 5.00 p.m. The prisoner will be brought back to jail on all the days after the permitted hours.
6. Since this order is being dictated in the presence of the learned Additional Public Prosecutor, he is directed to communicate these directions over phone to the second respondent. The second respondent need not wait for the receipt of the certified copy of this order. Registry is also directed to communicate the same by Fax to the second respondent through the Principal District Judge, Tirunelveli.
7. The cost of the escort will be borne by the State Government.
8. Mr.Agmal Kasali, B.E., B.L., (M.S.No.3070/2015) No.6, 1st Floor, Puthumanai, Pallivasal Complex, Melapalayam, Tirunelveli - 5, learned counsel present in the Court along with the counsel for the petitioner, on instructions, gives an undertaking that Mohamed Shalin will not contact anybody over phone or anyother electronic mode. It is further undertaken that the order passed in favour of the prisoner will not be made use of for any extraneous purpose. It is further made clear that the escort police is entitled to be present along with prisoner Mohamed Shalin on all these three days. The jurisdictional police and the prison authoriti
