A piece of Subordinate Legislation cannot abridge or denude Constitutional powers of the Court.

JUDGMENT

(Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus to call for the records pertaining to the Impugned Order bearing No.14704/Tha.Ku.2/2023 dated 24.08.2023 passed by the third respondent and quash the same and consequently direct the respondents to grant ordinary leave for 30 days without escort to the detenu Sankar, son of Sanjeevirayar, aged about 44 years, Convict No.16501 confined at Central Prison, Cuddalore.)

M. Sundar,

1. Captioned 'Writ Petition' ('WP' for the sake of brevity) has been filed in this Court on 20.09.2023 with a certiorarified mandamus prayer assailing an 'order dated 24.08.2023 bearing reference No.14704/j/F/2/2023 made by the third respondent' [hereinafter 'impugned order' for the sake of convenience and clarity] rejecting an application dated 21.08.2023 made by the writ petitioner seeking one month ordinary leave and six days emergency leave for her spouse who is a prison inmate.

2. Factual matrix in a nutshell is that writ petitioner's spouse one Thiru.Sankar, son of Thiru.Sanjeevirayar is a prison inmate i.e., a convict prisoner having been convicted and sentenced to undergo 20 years of rigorous imprisonment with a default fine clause of 5 years simple imprisonment (fine of Rs.2 lakhs) vide conviction and sentence dated 11.12.2018 in Special S.C.No.27 of 2018 on the file of learned Mahila Court, Cuddalore; that this conviction and sentence was assailed in this Court vide Crl.A.No.10 of 2019 and the same came to be dismissed on 22.02.2021 but it is to be noted that it has been clearly recorded that the victim is now the spouse of the prison inmate and a mother of two children born out of the wedlock; that this criminal appeal was carried to Hon'ble Supreme Court unsuccessfully but a curative petition against the same has been filed and the same is pending; that leave was sought on two grounds namely a) for making arrangements for admission of children in the school and b) for repairing the homestead; that the leave application was rejected vide the impugned order primarily citing Rule 2(4) which defines 'sentence' and Rule 35 which talks about not granting leave when trial is pending qua a prisoner; that it has to be noted that Rules 2(4) and 35 are Rules qua 'Tamil Nadu Suspension of Sentence Rules, 1982' [hereinafter 'said Rules' for the sake of convenience and clarity].

3. Dr.S.Manoharan, learned counsel for writ petitioner in his campaign against the impugned order submitted that the reasons i.e., grounds on which leave has been sought has not been subjected to disputation or contestation but leave application has been rejected on technical grounds.

4. Issue notice.

5. Mr.E.Raj Thilak, learned State Additional Public Prosecutor accepted notice for all three respondents.

6. Owing to the narrow scope on which the captioned writ petition turns, with the consent of both sides, captioned writ petition was taken up and heard out.

7. Learned Prosecutor on instructions submits that pendency of the aforementioned curative petition in Hon'ble Supreme Court has attracted Rule 35 read with Rule 2(4) of said Rules. To be noted, Curative Petition is Curative Pet(R) No.000003 of 2023 and the same is pending. Learned Prosecutor pointed out that this has been captured in the impugned order.

8. We carefully considered the rival submissions. We perused the case records and we come to the conclusion that the impugned order deserves to be interfered with (certiorari limb) and the prison inmate deserves to be given leave (mandamus limb) and the reasons are as follows:

i) As rightly pointed out by learned counsel for the writ petitioner, the grounds on which leave has been sought, namely making arrangements for admission of children in school and repairing the homestead have not been subjected to any disputation or contestation;

ii) The aforementioned two grounds snuggly fit into subclauses (ii) and (iii) of R