The central legal point established in the judgment is that a convict prisoner facing trial cannot be granted leave, and the grant of remission or parole is a privilege available to the prisoner on fulfilling certain conditions and is a discretionary power to be exercised by the authorities.

JUDGMENT :

P.N. Prakash, J.

(Prayer: Petition filed under Article 226 of the Constitution of India, to issue a writ of Certiorarified Mandamus calling for the records pertaining to the impugned order passed by the second respondent vide his proceedings in No.7479/Thagu.2/2022, dated 13.05.2022 quash the same as illegal and consequently directing the second respondent to grant emergency leave (Parole) to the petitioner's son namely Ibrahimsha, S/o.Mohammed Hanifa, Convict Prisoner (C.P) No.5830 now confined at Central Prison, Madurai, for a period of three weeks by considering her representation dated 06.05.2022.)

1. This writ petition has been filed challenging the notice dated 13.05.2022 and for a direction to the second respondent to grant E.L. (Parole) to the petitioner's son for a period of three weeks.

2. The minimum facts that are required for deciding this writ petition are as under:

2.1 The convict prisoner Ibrahimsha, (C.P) No.5830, who is presently lodged in Central Prison, Madurai, was convicted and sentenced on various grounds of imprisonment in S.C.No.147 of 2015 on 06.02.2019, the maximum being imprisonment for life for the offence under Section 302 IPC.

2.2 On appeal, the conviction and sentences were confirmed by a Division Bench of this Court in Crl.A.(MD) No.103 of 2019 on 25.03.2022.

2.3 The petitioner, who is the mother of the said convict prisoner, addressed a representation seeking emergency leave for her son on the ground that she is very sick and may not live long. The said leave application has been rejected by the Superintendent of the Central Prison, Madurai, on 13.05.2022, which order is impugned herein.

2.4 The leave application has been rejected on the short ground that, there are other cases pending against the convict prisoner and hence, under Rule 35 of the Tamil Nadu Suspension of Sentence Rules, 1982, (for brevity “the Suspension of Sentence Rules”) leave cannot be granted to him.

3. The Superintendent of Prisons has filed a counter-affidavit, wherein, in paragraph No.4, it is stated as follows:-

“4. With regard to the averments contained in Paragraphs No.4, 6 and 7 of the affidavit, it is submitted that previously the petitioner's son Life Convict Prisoner No.5830 Ibrahimsha S/o. Mohammed Hanifa has been remanded to Judicial custody concerned in Vilakkuthoon Police Station Crime No.803/2015 u/s 147, 148, 302, 120(b), 201, 212 and 3 of Explosive Act which is still pending in SC No.426/2018 before the VI Additional District Sessions Judge, Madurai. The next date of hearing is 20.07.2022. Moreover, he also remanded to Judicial custody concerned in Subramaniyapuram Police Station Cr No.268/2018 u/s 457 IPC and 380 IPC and the same is pending before the Judicial Magistrate Court No.IV, Madurai. The Remand period has been extended till 11.07.2022. Therefore, as narrated in the paragraph No.2 of this affidavit, the petitioner's son is not eligible for granting Emergency Leave and Ordinary Leave as per the provisions of Tamil Nadu Suspension of Sentence Rules, 1982.”

4. Assailing the impugned order, Ms.Rajini, learned counsel for the petitioner, placed very strong reliance on an earlier order dated 11.01.2018, which was passed by a Division Bench of this Court in Banumathi v. The Chief Secretary to the Government, Union of Puducherry, (H.C.P.No.2340 of 2017).

5. This Court carefully perused the above said order. In that case, the question before the Division Bench was the applicability of Rule 631 of the Pondicherry Prison Rules, 1969. Unfortunately, it was not brought to the notice of the said Division Bench that the Government of Pondicherry, vide G.O.Ms.No.75, Home Department, dated 02.11.1987, had passed the Pondicherry Suspension of Sentence Rules, 1982 in supersession of Rules 594 to 636 of the Pondicherry Prison Rules, 1969. Therefore, much reliance cannot be placed upon the order of this Court in Banumathi (supra).

6. On the contrary, a Division Bench of this Court, in S.Santhosam v. State by Secretar