The executive power of the State cannot extend to grant parole or leave or suspension of sentence when the appellate Court has the power to grant suspension of sentence and bail pending appeal.

ORDER :

J. Nisha Banu, N. Anand Venkatesh, JJ.

Prayer : Petition - filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order passed by the first respondent by his proceedings No.16623/Taku 2/ 2022, dated 29.09.2022 and to quash the same as illegal and consequently, direct the first respondent to grant one month ordinary leave under the provisions of the Tamil Nadu Suspension of Sentence Rules 1982, to the petitioner husband namely, Chinna Mani, C.P.No.5991, presently logged in Prison, Madurai.

This Writ Petition has been filed challenging the impugned proceedings of the first respondent, dated 29.09.2022, wherein the ordinary leave sought for by the petitioner, who is the wife of the detenu, was rejected by the first respondent on the ground that the appeal is pending before the Apex Court in Criminal Appeal No.488 of 2020 and therefore, there is a bar under the Tamil Nadu Suspension of Sentence Rules, 1982.

2. The learned counsel for the petitioner submitted that the first respondent went wrong in rejecting the ordinary leave sought for, mainly on the ground that the appeal is pending before the Apex Court. According to the learned counsel for the petitioner, such pendency of appeal by itself is not a ground to reject the leave. To substantiate his submissions, the learned counsel relied upon the judgment passed by this Court in W.P.(MD) No.8089 of 2013 in Pooranam Vs. The Superintendent, Central Prison, Madurai, dated 20.08.2013. The learned counsel also relied upon the judgment passed in W.P.(MD) No.8300 of 2015 in Murugeswari and another Vs. The State of Tamil Nadu and others, dated 18.08.2015, wherein, the earlier judgment was followed by this Court.

3. The learned counsel for the petitioner by placing reliance on the above two judgments submitted that the facts in the above case is very similar to the facts of the case on hand. That apart, this Court had directed the Additional Director General of Prisons and the Superintendent of All Central Prisons and Special Prisons for Women, to grant such leave in accordance with the Rules, even in cases where appeal is pending before the Apex Court.

4. Per contra, the learned Additional Public Prosecutor appearing on behalf of the respondents submitted that the contention raised by the learned counsel for the petitioner is directly covered by the latest judgment of this Court in L. Wasib Khan Vs. The State rep. by its Deputy Inspector General of Prisons (Chennai Range) Gandhi Irwin Road, Egmore, Chennai and others reported in 2022 (1) L.W.(Crl.) 416. The learned Additional Public Prosecutor also submitted that once an appeal has been filed before the Apex Court and the same is pending, the respondents do not have the right or jurisdiction to grant leave to the detenu and if at all the detenu requires any leave / parole, the detenu has to only approach the Apex Court and the detenu cannot be permitted to knock the door of this Court.

5. We have carefully considered the submissions made on either side and the judgment cited by them.

6. The judgments that were brought to the notice of this Court by the learned counsel for the petitioner did not deal with the earlier observations made by the Apex Court in Manoharan Vs. State of Tamil Nadu, wherein the Apex Court came down heavily on the Government for granting leave during pendency of appeal before the Apex Court. This was noted in the judgment that was cited by the learned Additional Public Prosecutor and for proper appreciation, the relevant portions in the judgment are extracted hereunder :-

“9 Now, coming to reason (b) for rejection of leave to Wasib Khan, viz., pendency of appeal before the High Court, this issue is no longer res integra in the light of the authoritative pronouncement of the Constitution Bench of the Supreme Court in K.M. Nanavati vs. State of Bombay [AIR 1961 SC 112] and in view of the definition of the word ‘sentence’ in Rule 2