Prisoners may receive ordinary or emergency leave during an appeal under the Tamil Nadu Suspension of Sentence Rules, provided they are not facing concurrent trials, with the Rules aimed at assisting reformation.

COMMON ORDER :

[Order of the Court is made by S.M.SUBRAMANIAM, J.]

The above writ petitions are referred before the larger Bench, in view of the conflicting views expressed by two Division Benches of this Court while interpreting Rule 35 of the TAMIL NADU SUSPENSION OF SENTENCE RULES , 1982, particularly in W.P.No.10265 of 2021 ( L.Wasib Khan v. State of Tamil Nadu ) and in W.P.(MD) No.6398 of 2023 ( Latha v. State of Tamil Nadu ), the former declining the grant of ordinary/emergency leave to the prisoner concerned and the latter granting the relief sought to the prisoner concerned.

2. Heard the parties to the lis on hand.

3. The reference has been made to answer the following two issues:

(1) Whether during pendency of the appeal before the High Court/Special Leave Petition before Apex Court, the prisoner can be extended the benefit of Ordinary Leave or Emergency Leave under the TAMIL NADU SUSPENSION OF SENTENCE RULES , 1982, by exercising the powers under Article 226 of the Constitution of India?

(2) Whether the TAMIL NADU SUSPENSION OF SENTENCE RULES , 1982 as amended by G.O.(MS)No.205, Home (Prison-V) Department dated 25.04.2022 places an embargo on grant of ordinary leave under Rule 22 as explanation to Rule 22 states that the period of actual imprisonment shall be counted from the date of admission to prison as convict and not the date of arrest and whether the period of incarceration during remand or during trial could be counted while determining the length of sentence suffered by the convict?

4. Considering the entire 1982 Rules to be a beneficial piece of legislation and every Rule requires to be interpreted in a liberal manner to achieve its object, of course, not in a negative sense, to the benefit of a prisoner, the larger Bench, in order to give a quietus to the controversy, is inclined to frame the following ancillary issues for consideration:

(3) Whether the Prison Authorities, specifically the Deputy Inspector General of Prisons or Superintendent of Prisons, as the case may be, is empowered to grant ordinary leave or emergency leave to a prisoner during the pendency of an appeal before the High Court or before the Hon'ble Supreme Court of India against the judgment of the trial Court?

(4) Whether the term “Sentence” defined under Rule 2(4) of the TAMIL NADU SUSPENSION OF SENTENCE RULES , 1982 shall prevail upon, or whether the competent authorities have to wait for the final verdict of the appellate Court in the appeal, even while considering an application made by the prisoner for grant of ordinary or emergency leave under Rule 22 of the said Rules?

5. We have gone through the conflicting views expressed by the respective Division Benches in the above-mentioned cases. Pertinently, all the judgments in these cases were consolidated by the Division Bench of this Court in the case of Latha vs. the State represented by the Deputy Inspector General of Prisons, Madurai Zone.

ISSUE NOS.1 AND 3: GRANT OF ORDINARY/EMERGENCY LEAVE DURING PENDENCY OF APPEAL:

6. The TAMIL NADU SUSPENSION OF SENTENCE RULES , 1982 was notified in exercise of the powers conferred by the Sub-Section (5) of 432 of the CRIMINAL PROCEDURE CODE , 1973 (corresponding to Section 473 of the Bharatiya Nagarik Suraksha Sanhita ( BNSS ), 2023). Rule 3 stipulates that leave is not a right. Therefore, no prisoner can claim leave as a matter of right. Instead, it is a concession granted to the prisoner in the context of reformation. Consequently, the competent authorities have to consider the leave application with reference to the eligibility and by following the due process as contemplated under the provisions of the TAMIL NADU SUSPENSION OF SENTENCE RULES , 1982.

7. Thus, we have no hesitation in holding that under Rule 35 of the TAMIL NADU SUSPENSION OF SENTENCE RULES , 1982, the competent Prison Authority is empowered to grant ordinary leave or emergency leave to a prisoner during the pendency of a criminal appeal before any of the Appellate Courts.

8. Howev