BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
14. 11.2014 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Petition No.16361 of 2014 M.Nisha Akbar ... Petitioner Vs. The Superintendent of Police, Trichy Central Prison, Trichy District. ... Respondent Prayer Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, directing the Respondents to grant 10 days emergency leave to the Petitioner's brother by name Mr.Sheik Meeran S/o.M.S.Ali, a life convict bearing Prisoner No.16808, who is confined at Trichy Central Prison, to see his ailing sister under Rule 6 of the Tamil Nadu Suspension of Sentence Rules, 1982. !For Petitioner : Mr.P.Muthu Vijayapandian For Respondents :Mr.V.Muruganandam Govt. Advocate :ORDER
Heard the Learned Counsel appearing for the Petitioner and the Learned Additional Government Pleader appearing for the Respondents.
2. The Petitioner has preferred the instant Writ of Mandamus, directing the Respondent to grant 10 days emergency leave to the Petitioner's brother by name, Mr.Sheik Meeran S/o.M.S.Ali, a life convict, bearing Prisoner No.16808, who is presently confined at Trichy Central Prison, to see his ailing sister, under Rule 6 of the Tamil Nadu Suspension of Sentence Rules, 1982.
3. According to the Petitioner, her brother is one of the accused in S.C.No.392 of 1997, on the file of the Learned Principal District Judge, Nagercoil. The Court has passed the judgment against her brother for hanging. As against the said judgment, her brother preferred an appeal on the file of this Court. This Court has also confirmed the appeal. Subsequently, her brother preferred an appeal before the Hon'ble Supreme Court of India and the Hon'ble Supreme Court also confirmed the same. However, on consideration of Mercy Petition before His Majesty President of India, the same was considered by the Hon'ble President of India and the sentence of hanging was modified into that of a life sentence. Subsequently, her brother is undergoing the imprisonment for the last 20 years.
4. The Petitioner's brother was originally confined at Central Prison at Palayamkottai and later, he was transferred to Trichy Central Prison. The fact is that, her brother was granted parole in the year 2011, for a period of three days to see her father. Thereafter, her father died. Subsequently, to see her mother, the leave was not granted. But, on the mothers death, her brother was granted one day parole. Thereafter, her brother was not granted any leave till today. She is only surviving sister and further she is undergoing serious medical problem due to Jaundice and in death bed. However, the Respondent has not granted leave to her brother notwithstanding her health condition was informed.
5. The real grievance of the Petitioner is that due to treatment of severe Jaundice, she is bed ridden for the past two months and as such, she cannot travel from Nagercoil to Trichy to see her brother. She had also made a representation to the Respondent on 18.08.2014 along with the Doctor's Certificate for providing emergency leave to her brother, through a registered post. The Respondent received the same, but failed to consider her request.
6. Per contra, the Respondent caused a reply dated 02.09.2014 assigning the reasons that there are cases pending trial and as such, her brother could not be granted any leave. The said reason is an unlawful and untenable one. There is no rule stating that there should not be leave to the convict, when there is another trial is pending.
7. In effect, the Petitioner prays for granting of 10 days emergency leave to her brother by name Sheik Meeran S/o.P.M.S.Ali, a life convict bearing Prisoner No.16808, who is presently confined at Trichy Central Prison, to see her, under Rule 6 of the Tamil Nadu Suspension of Sentence Rule 1982.
8. Per contra, it is the submission of the Learned Additional Government Pleader for the Respondent that the Petitioner's brother / a life convict, bearing Prisoner No.16808, is concerned, in Kottar P.S.Cr.No.1151/1994, for the offences under Sections 302, 148, 143 and 144 of Indian Explosive Act, he was convicted to death sentence by the Learned Sessions Judge, Thirunelveli, on 05.10.1998. Further, he was admitted in Central Prison, Palayamkottai on 05.10.1998. The said prisoner was transferred to Central Prison, Vellore on 08.08.2013, as per the G.O.Rt.No.646 (Prison-V) dated 30.07.2003 and the Additional Director General of Police and Inspector of General General Prisons order No.24078/PW.2/2003, dated 07.08.2003. Again, the Petitioner's brother was transferred from Central Prison, Vellore and admitted into the Trichy Central Prison on 29.03.2008, as per G.O.No.344, Home Department, dated 26.08.2008 and Additional Director General of Police and Inspector General on Prisons order No.52718/PW.2/2007, dated 28.03.2008.
9. It is brought to the notice of this Court that the sentence of Death imposed upon the Petitioner's brother was confirmed in RT.No.4/1998 and 110/1998, dated 30.04.1999 by this Court.
10. It is to be noted that the Hon'ble President of India was pleased to commute the sentence of death awarded to the Petitioner's brother Sheik Meeran, by order dated 05.10.1998. Further, the Petitioner's brother was also convicted in Vedasery Ps Cr.206/1993, u/s.302, 341, 148 of IPC., and he was awarded a punishment of imprisonment for life and fine of Rs.10,000/- etc., In fact, the representation of the Petitioner, dated 18.08.2014 was received by the Office of the Central Prison on 20.08.2014, wherein, she has stated that she is suffering seriously because of Janudice and Astma and requested to release her brother Sheik Meeran, a life convict No.16808, on leave, to see her. The said representation was considered and a reply was issued to the Petitioner on 02.09.2014. Also that, the Petitioner's brother was involved in another case concerned in Eraniel P.S.Cr.No.145/2011 under Sections 302, 147, 148, 279, 294(b) IPC., 120(b), 94(b), 302, 201 IPC and PT warrant was issued by the Learned Judicial Magistrate in D.No.1316/2013, dated 13.03.2013 and this case is still pending. As such, the Petitioner's brother is not eligible for Emergency Leave, as per the Tamil Nadu Manual Vol.III, Rule No.35. This particular fact was informed to the Petitioner vide Letter No.16026/R.4/2014, dated 02.09.2014.
11. In this connection, this Court aptly refers to the Rule 34 of Tamil Nadu Suspension of Sentence Rules, 1982, which reads as follows:- ".34. Extension of emergency leave and procedure:- If a prisoner released on emergency leave wants extension of the period he may submit a petition for the same to the Government with a copy to the Superintendent of Prisons in good time before expiry of leave and the Government may pass such orders as they deem fit. If orders authorising the extension are not received before the expiry of his emergency leave, the prisoner shall report back to the prison. As soon as a prisoner released on emergency leave surrenders to the prison authorities, his original order of release and the bond executed by him shall became inoperative. Where a prisoner who is released on emergency leave, surrenders to the prison authorities before his petition for extension of the period of emergency leave has been sanctioned, he shall not be released after such surrender without obtaining a fresh release order from the Superintendent of Prisons.".
12. Also Rule 35 speaks of 'pending cases', which runs as follows:- ".35. Pending Cases:- No prisoner on whom the case is pending trial case shall be granted leave.".
13. On a careful consideration of respective contentions and although the Petitioner in her affidavit in the Writ Petition has clearly averred that due to treatment of severe Jaundice, she has been bed ridden for the past two months and as such, she could not travel from Nagercoil to see her brother viz., Sheik Meeran S/o.M.S.Ali, a life convict, bearing Prisoner No.16808 and in that context, she has also sought permission from this Court to grant 10 days emergency leave to her brother, in terms of Rule 6 of the Tamil Nadu Suspension of Sentence Rules, 1982, this Court is of the considered view that Rule 35 of the Tamil Nadu Suspension of Sentence Rules, 1982, in a categorical term mentioned that 'No prisoner on whom case is pending trial shall be granted leave' and admittedly, the case P.S.Crime No.145/2011, under various Sections of IPC., against the Petitioner's brother is pending, which cannot be disputed.
14. Under such circumstances, this Court is not in a position to accede to the request of the Petitioner viz., to grant 10 days emergency leave to her brother, by name, Mr.Sheik Meeran S/o.M.S.Ali, a life convict bearing Prisoner No.16808, who is presently confined at Trichy Central Prison, to see her, who is ailing. Consequently, the Writ Petition fails.
15. In the result, the Writ Petition is dismissed. It is made clear that the dismissal of the present Writ Petition will not preclude the Petitioner to approach the Government wherein, she can make a request for granting emergency leave to her brother by name Mr.Sheik Meeran S/o.M.S.Ali, a life convict, bearing Prisoner No.16808, who is presently confined at Trichy Central Prison, to see her, who is ailing, under relevant provision of the Tamil Nadu Suspension of Sentence Rules, 1982. No costs. 14.11.2014 Index : Yes Internet : Yes MPK To The Superintendent of Police, Trichy Central Prison, Trichy District. M.VENUGOPAL, J.
MPK Writ Petition No.16361 of 2014 14.11.2014