The main legal point established in the judgment is that the State authorities cannot exercise their power to grant leave under the Tamil Nadu Suspension of Sentence Rules, 1982, when an appeal is pending before the appellate Court, as per Rule 35. The judgment also highlighted the discretionary power of the State Government under Rule 40 to exempt a convict from the provisions of the Rules.

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, directing the Respondents to grant parole to the petitioner''s husband viz., Kandhasamy Pandian, S/o. Pandian, Convict Prisoner No.5861, now confined at Central Prison, Madurai for a period of 5 days by considering the petitioner''s representation dated 07.06.2023.)

R. Suresh Kumar, J.

The prayer sought for herein is for a Writ of Mandamus, directing the respondents to grant parole to husband of the petitioner viz., Kandhasamy Pandian, S/o. Pandian, Convict Prisoner No.5861, now confined at Central Prison, Madurai, for a period of 5 days, by considering her representation dated 07.06.2023.

2. The short facts, which are supposed to be noticed for disposal of this Writ Petition are as follows:-

The petitioner''s husband viz., one Kandhasamy Pandian, S/o. Pandian was convicted in a murder case, punishable under Section 302 of I.P.C., corresponding to Crime No.226 of 2007 in Othakadai Police station. The said judgment and conviction, though was appealed before this Court, which was confirmed by the Judgement of this Court, as against which, Special Leave Petitions have been preferred before the Hon''ble Supreme Court of India in S.L.P. Nos.1433 of 2019 and 1434 of 2019. The said S.L.Ps. are pending before the Hon''ble Supreme Court.

3. In this context, it is the further case of the petitioner that, her husband has been undergoing the jail sentence for the past four years. Earlier the petitioner''s husband applied for parole for two times, on the ground of her illness he availed the parole. In both the times parole was granted considering the longer judicial custody and character of the husband of the petitioner.

4. When that being so, now, the petitioner, who is the wife of the convict along with the elders of the family has decided to perform a function for her daughter Kayalvizhi i.e., Puberty function (in tamil “TAMIL”). The said function was fixed to be held on 28.06.2023. Therefore, in order to make arrangements for the said function and to participate in the function, the petitioner seems to have approached the Jail authorities for release of her husband by granting him leave or parole, which was not considered, despite such representation has been made.

5. Therefore, the petitioner has given a representation on 07.06.2023 to the first respondent for grant of such parole / leave to the husband of the petitioner for a period of 5 days, by considering her representation dated 07.06.2023.

6. To issue a Writ of Mandamus to the first and second respondents to consider such representation for grant of such 5 days leave, for the reasons stated therein, the petitioner has filed the present Writ Petition with the aforestated prayer.

7. We have heard Mr.S.Krishnan, the learned counsel appearing for the petitioner, who has reiterated the aforestated prayer, seeking indulgence of this Court. 8. We have also heard Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor, appearing for the respondents. He would submit that, insofar as the consideration of the representation given by the petitioner dated 07.06.2023 is concerned, such a consideration could be made only within the power of the State under the Tamil Nadu Suspension of Sentence Rules, 1982 (In short the 1982 Rules).

9. Under the said Rules, there are two types of leave, one is emergency leave and the another one is ordinary leave. What are all the grounds for grant of emergency leave, that have been mentioned under Rule 6. Like that, what are all the grounds for grant of ordinary leave have been mentioned under Rule 20.

10. Insofar as the leave now sought for by the petitioner for her husband is only ordinary leave and the same has to be dealt with under the provisions of the said Rules. In this context, the learned Additional Public Prosecutor would further submit that, Rule 35 of the said Rules has made it clear that, no prisoner on whom a case is penin