Point of Law: Suspension of the execution of a sentence – Appropriate Government for grant of remission or suspension of sentence for these offences is the State Government

JUDGMENT :

(Prayer: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, directing the respondents to grant parole for 30 days without escort to my husband namely; Mohammed Ali, S/o.Khaja Mohideen, aged about 49 years, Life Convict No.10727, detained at Central Prison, Coimbatore.)

1. A vexed question which puts the jail authorities in a quandary every time they deal with a leave petition submitted by a convict who is convicted under laws which fall under the Executive Power of the Union and also to which the Executive Power of the State extends, is attempted to be given a definite answer. This will be the most appropriate case, since the convict has been convicted and sentenced under laws referable to List I, List II and List III of Schedule VII of the Constitution of India, 1950 (hereinafter referred to as “the Constitution”).

2. When the matter came up for hearing on 25.01.2021, this Court passed the following Order and this Order captures the purpose for which the present Writ Petition was filed before this Court.

This Writ Petition has been filed for the issue of a writ of mandamus directing the respondents to grant emergency leave to the husband of the petitioner, who is a life convict, on the ground that the marriage of their son is going to be held on 31.01.2021.

2. The learned counsel for the petitioner submitted that there was some urgency in the present case and hence a writ petition has been directly filed before this Court without giving any representation to the 4th respondent. The learned counsel further submitted that the petitioner is seeking for an emergency leave under Rule 6 and 7 of the Tamil Nadu Suspension of Sentence Rules, 1982, in order to enable her husband, who is a life convict to conduct the marriage of his son, which is fixed to be held on 31.01.2021.

3. The learned Additional Public Prosecutor appearing on behalf of the respondents submitted that as and when a representation is received in this regard, the same will be considered in accordance with law. The learned Additional Public Prosecutor further submitted that such a leave cannot be granted without the permission of the State Government. For this purpose, the learned Additional Public Prosecutor relied upon the circular issued by the ADGP dated 24.07.2018. The learned Additional Public Prosecutor submitted that there is a larger issue that requires consideration in the present case.

4. Taking into consideration the limited period available, since the marriage is proposed to be conducted on 31.01.2021, there shall be a direction to the petitioner to make a representation to the 4th respondent along with the relevant documents and the 4th respondent shall consider the application in line with Rule 6 and 7 of the Tamil Nadu Suspension of Sentence Rules, 1982 and grant leave for 15 days with minimum Escort, subject to the usual conditions that can be imposed by the 4th respondent. The convict shall be released from the Prison at 10.00 a.m. on 29.01.2021 and he shall return back to the Prison on 12.02.2021 at 5.p.m. This will be without prejudice to the main contention raised by the learned Additional Public Prosecutor on granting leave in cases of this nature wherein, a Central enactment is involved and the convict has also been punished for the same.

5. Post this case for further hearing on 09.02.2021 at 2.15 p.m . In the meantime, a counter shall be filed along with all the relevant documents.

3. It was brought to the notice of this Court by the learned Additional Public Prosecutor, that the convict has surrendered before the jail authorities on the date and time fixed by this Court.

4. Considering the importance of the issue involved in the present Writ Petition, this Court requested the assistance of Mr. B.A. Sujay Prasanna, Mr. V. Lakshmi Narayanan, Mr. Sharath Chandran and Mr. M. Mohammad Riyaz, Additional Public Prosecutor to assist this Court as amicus. They readily expressed their willingness