The central legal point established in the judgment is that Rule 35 of the Sentence Suspension Rules prohibits granting leave to a prisoner with a pending criminal case, and Rule 40 does not grant the State Government the power to grant leave outside the provisions of the Sentence Suspension Rules.

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorarified mandamus to call for the records pertaining to the proceedings of the third respondent in No.6380/R1/2021 dated 15.12.2021 and quash the same and direct the second and third respondents to grant one month leave without escort to the petitioner’s husband T. Suresh, male aged 34 years, S/o Thirunavukkarasu (Convict No.6380), who is confined in the third respondent prison, in accordance with law.)

P.N. Prakash, J.

1. Seeking 30 days ordinary leave under Rule 20 of the Tamil Nadu Suspension of Sentence Rules, 1982 (for brevity “the Sentence Suspension Rules”) for the convict prisoner, viz., Suresh (Ct. No.6380), the petitioner, Kalaivani, who is his wife, addressed a representation dated 19.08.2021 to the respondents, which has been rejected by the Superintendent of Prisons, Central Prison -I, Puzhal, Chennai, by order dated 15.12.2021, aggrieved by which, the present writ petition has been filed.

2. The Superintendent of Prisons, Central Prison -I, Puzhal, Chennai, has filed a counter affidavit dated 28.02.2022 justifying the impugned order.

3. Mr. Senthilvel, learned counsel for the petitioner, contended that the convict prisoner was earlier granted ordinary leave on the orders of this Court in H.C.P. No.2110 of 2019 and H.C.P. No.2016 of 2020 dated 24.10.2019 and 04.11.2020, respectively, pursuant to which, he availed leave and returned to the prison promptly; that apart, under Rule 40 of the Sentence Suspension Rules, the Government has got the power to grant exemption which the Government should have exercised.

4. Per contra, Mr. R. Muniyapparaj, learned Additional Public Prosecutor appearing for the respondents/State refuted the aforesaid contentions.

5. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondents/State.

6. The reason for denying ordinary leave to the convict prisoner has been stated in the impugned order as under:

“the Inspector of Police, H1, Washermanpet Police Station raised strong objection stating that there will be law and order problems if her husband/said convict prisoner is released on leave and (ii) her husband/said convict prisoner has a case pending trial before the XV Metropolitan Magistrate Court, registered as C.C. No.571 of 2017 concerning R.K. Nagar Police Station Cr.No.913/2014, and hence, he is not eligible for ordinary leave as per Rule No.35 of the Tamil Nadu Suspension of Sentence Rules, 1982.”

7. Rule 35 of the Sentence Suspension Rules which reads as follows:

“35. Pending cases:

No prisoner on whom a case is pending trial shall be granted leave.”

8. Under Rule 832 of the Tamil Nadu Prison Rules, an undertrial prisoner is required to be produced before the trial Court by the Prison authorities on all hearing dates. Therefore, ordinary leave cannot be granted to a convict prisoner against whom there is a criminal case pending trial.

9. As regards the applicability of Rule 40 of the Sentence Suspension Rules, this is an exemption power of the Government to exercise which, we are afraid, a mandamus cannot be issued. The scope of Rule 35 and Rule 40, ibid., has been discussed in detail by a Division Bench of this Court in S. Santhosam vs.State and others [2021-2-LW (Crl.) 519], in which, one of us (PNPJ) was a member, wherein, it has been held as under:

“15. If a convict prisoner has, to his credit, another criminal case in which he is facing trial, a duty is cast upon the prison authorities to produce him before the trial Court from time to time. This is limpid from Rule 832 of the Tamil Nadu Prisons Rules, which reads as under:

“832. Production before Court:-

(1) The duty of ascertaining the time at which a prisoner committed to the Sessions is to be produced before the Sessions Court, and of providing the necessary escort for this purpose, rests with the police.

(2) The Superintendent is responsible fo