The court concluded that the pendency of an appeal cannot serve as a basis for denying a prisoner's application for leave, clarifying the scope of the Tamil Nadu Suspension of Sentence Rules, 1982.

JUDGMENT

(Prayer:Writ Petition filed under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order bearing No.414/Tha.Ku.2/2022, dated 31.01.2023, passed by the 2nd respondent and quash the same and consecutively direct the respondents to grant ordinary leave for 40 days without escort, to the detenu, Thirupathirajan, S/o.Narayanan life convict prisoner Convict No.4432 detained at central prison, Palayamkottai.)

M.S. Ramesh, J.

1. The petitioner's husband, Thirupathirajan, is a life convict prisoner (CP.No.4432) and detained at Central Prison, Palayamkottai. When the petitioner had made an application on 13.01.2023 seeking for grant of 40 days ordinary leave under the provisions of the Tamil Nadu Suspension of Sentence Rules, 1982, her request was rejected through the impugned order dated 31.01.2023, on the ground that the Madras High Court, in its order passed in W.P.No.10265 of 2021 dated 18.02.2022 (L.Wasib Khan Vs. The State and others – 2022 (2) CTC 598), had held that when an appeal against conviction is pending, the suspension of sentence should be sought for only before the Appellate Court. The rejection order is put under challenge in the present Writ Petition.

2. The core issue that arises for consideration in the present Writ Petition is as to whether the pendency of an appeal against conviction, before the Appellate Court, can be cited as an embargo for rejection of a request for grant of leave under the provisions of the Tamil Nadu Suspension of Sentence Rules, 1982 (hereinafter referred to as “1982 Rules”)?

3. The learned counsel for the petitioner submitted that Rule 35 of the Suspension of Sentence Rules prohibits grant of leave to a prisoner against whom a case is pending trial and therefore, the same cannot be equated to the pendency of an appeal.

4. Per contra, Mr.A.Thiruvadikumar, learned Additional Public Prosecutor appearing for the respondents drew the attention of this Court to the decision in the case of L.Wasib Khan Vs. The State and others reported in 2022(2) CTC 598 (arising out of W.P.No.10265 of 2021 dated 18.02.2022 and referred to in the impugned order) and submitted that when Section 389 of the Code of Criminal Procedure, 1973 (CrPC) empowers the Appellate Court to suspend the sentence pending the appeal, the executive power of the State cannot be extended to grant suspension of sentence in accordance with the law laid down in this case and therefore, there is no infirmity in the reason assigned in the impugned order. He also drew our attention to a recent decision of a co-ordinate Bench of this Court in the case of K.Rajalakshmi Vs. The Principal Secretary to the Government of Tamil Nadu and others passed in W.P.(MD).No.13918 of 2023 dated 15.06.2023, wherein, the co-ordinate Bench of this Court had placed reliance on Wasib Khan's case (supra), as well as the decision of the Hon'ble Supreme Court in the case of K.M.Nanavati Vs. State of Bombay reported in AIR 1961 SC 112 and submitted that suspension of sentence can be sought for only before the Court, where the appeal against conviction is pending and the State has no powers to grant suspension. He also emphasized that earlier when the State had granted parole in a similar situation in the case of Manokaran vs. State of Tamil Nadu in Crl.A.No.866 of 2000, while the appeal was pending, the Hon'ble Supreme Court had frowned upon such an action stating that when the earlier bail petition filed by the appellant was already rejected, the State Government ought not to have released him on parole pending the appeal, which made the