ORDER :

P.N. Prakash, J.

The petitioner is the sister of one Gunasekaran @ Udayakumar @ Kumar. Gunasekaran was prosecuted in Pappireddipatti P.S. Cr.No.37 of 2010 and he faced trial in S.C. No.39 of 2010 in the Court of the Principal Sessions Judge, Dharmapuri, in which, he was convicted on 26.10.2016 of the offences under Sections 302 and 394 IPC and was sentenced to two terms of imprisonment, the maximum being imprisonment for life. The appeal preferred by him thereagainst in Crl. A. No.267 of 2017 was dismissed by this Court on 10.01.2020. After his conviction and sentence, he was lodged in the Central Prison, Vellore, as a convict prisoner for undergoing the sentence. Since Gunasekaran was facing trial in two other cases, viz., S.C. No.210 of 2011 for the offence under Sections 395 read with Section 397 IPC before the I Additional Sessions Court, Salem and S.C. No.334 of 2017 for the offences under Sections 120, 379, 302 and 414 IPC in the Court of the II Additional District Judge, Salem, he was transferred from the Central Prison, Vellore, to the Central Prison, Salem, so that it will be convenient for the prison authorities to produce him for trial before the said two Courts in Salem on the hearing dates.

2. While that being so, the petitioner addressed a representation dated 19.06.2021 to the Home Secretary, Government of Tamil Nadu, the Deputy Inspector General of Prisons, Coimbatore Range and the Superintendent, Central Prison, Salem, seeking 10 days emergency leave for her brother Gunasekaran to visit their mother Kasiammal, aged 82 years, whose health condition is said to be critical. Pending that representation, the petitioner has filed the instant writ petition for a mandamus to the respondents to grant 10 days emergency leave to Gunasekaran by considering her representation dated 19.06.2021.

3. Heard Mrs. S. Nadhiya, learned counsel for the petitioner and Mr. R. Muniyapparaj, learned Government Advocate (Crl. Side) appearing for the respondents.

4. Mr. M. Senthilkumar, Superintendent of Prisons, Central Prison, Salem, has filed a counter affidavit dated 29.07.2021, wherein, he has inter alia stated that in the light of Rule 35 of the Tamil Nadu Suspension of Sentence Rules, 1982 (for brevity “the Sentence Suspension Rules”), Gunasekaran is not entitled to any kind of leave, as he is facing trial in two cases, as stated above.

5. This Court gave its anxious consideration to the rival submissions.

6. Mrs. Nadhiya submitted that under Rule 40 of the Sentence Suspension Rules, the Government has got the power to grant exemption and that is why, the petitioner's representation dated 19.06.2021 was addressed to the Home Secretary as well and in a case of this nature, it would be in the fitness of things for the Government to grant exemption and consequently, grant leave to Gunasekaran to visit his ailing mother.

7. Before proceeding to decide as to whether Gunasekaran is entitled to emergency leave or not, it is felicitous to trace the genesis of the Sentence Suspension Rules. Section 432 (5) Cr.P.C. appears to be the source of power for the Sentence Suspension Rules and it reads as under :

“432. Power to suspend or remit sentences :

(5) The appropriate Government may, by general rules or special orders give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with :

Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and-

(a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or

(b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.”

(emphasis supplied)

8. A reading of the above shows that the Government may, by general rules or special o