The discretionary nature of granting ordinary leave to convict prisoners under the T.N. Suspension of Sentence Rules and the limitations of the court's jurisdiction in such matters.

ORDER :

P.N. Prakash, J.

(Prayer: Petition filed under Article 226 of the Constitution of India, praying to issue a WRIT OF HABEAS CORPUS directing the respondents to grant ordinary leave for one month to the detenu, Shabeer, S/o. Anwar Basha, aged about 36 years, convict No.10125 at Central Prison, Coimbatore.)

1. The petitioners in these cases are the relatives of convict prisoners/convict prisoners themselves undergoing various terms of imprisonment in the prisons that fall within the territorial jurisdiction of the Principal Seat of this Court at Madras. The petitioners seek writs of habeas corpus for the grant of ordinary leave to such convict prisoners. In view of the commonality of the issues involved and the reliefs sought, these petitions are decided by this common order.

2 At the outset, it is not in dispute that none of these cases relates to any complaint of unlawful detention which is the sine qua non for maintaining a petition for habeas corpus under Article 226 of the Constitution of India. The celebrated writ of habeas corpus, alluded to as the “great constitutional privilege” and “the first security of civil liberty”, is a swift and effective remedy against illegal detention. Equally, where the detention is pursuant to an order passed by a court of competent jurisdiction, a petition for habeas corpus cannot lie. In Col.B.Ramachandra Rao (Dr.) v. State of Orissa and others [(1972) 3 SCC 256], the Supreme Court observed as under:

“5. Most of those grievances merely suggest that the cases against him are not true and they have been engineered by some high placed individuals for mala fide reasons. This Court does not, as a general rule, go into such controversies in proceedings for a writ of habeas corpus. Such a writ is not granted where a person is committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal and we are not satisfied that the present is not such a case.” (emphasis supplied)

This position has been recently reiterated by the Supreme Court in Home Secretary (Prisons) v. H.Nilofer Nisha [2020-1-L.W.(Crl.) 612], wherein, it was observed thus :

“15. It is a settled principle of law that a writ of habeas corpus is available as a remedy in all cases where a person is deprived of his/her personal liberty. It is processual writ to secure liberty of the citizen from unlawful or unjustified detention whether a person is detained by the State or is in private detention. As Justice Hidayatullah (as he then was) held: ‘The writ of habeas corpus issues not only for release from detention by the State but also for release from private detention-. At the same time, the law is well established that a writ of habeas corpus will not lie and such a prayer should be rejected by the court where detention or imprisonment of the person whose release is sought is in accordance with the decision rendered by a court of law or by an authority in accordance with law.”

In view of the aforesaid decisions, there cannot be an iota of doubt that the prayers sought in these habeas corpus petitions are not maintainable.

3. When this Court posed a question to the learned counsel for the petitioners as to how a habeas corpus petition would lie for the grant of parole/ordinary leave when the detention, per se, is not illegal as the convict prisoners are undergoing their respective sentences that have been passed by Courts of competent jurisdiction, they stated in unison that earlier Division Benches have been entertaining such petitions and granting reliefs of ordinary/emergency leave to convict prisoners in exercise of powers under Article 226 of the Constitution of India. The learned counsel also placed strong reliance on the judgment of the Supreme Court in Sunil Batra II vs. Delhi Administration [(1980) 3 SCC 488] and submitted that the prisoners are not denuded of their fundamental right guaranteed under Article 21 of the Constitution of India and therefore, thi