1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.10.2011 CORAM: THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P.(MD).No.11868 of 2011 and M.P.(MD).No.1 of 2011 Mohamed Iliyas Usmani ... Petitioner vs. The Superintendent, O/o. The Superintendent, Central Prison, Palayamkottai. ... Respondent PRAYER: This Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus to quash the impugned order No.9400/Tha.Ku.1/2011 dated 08.10.2011 on the file of the respondent and consequently direct the respondent to grant Parole to the petitioner's brother Moosa @ Tada Moosa with escorts for a period of two days. For Petitioner : Mr.S.M.A.Jinnah For Respondent : Mr.B.Pugalendhi Special Government Pleader O R D E R The petitioner has come up with the above writ petition challenging an order passed by the Superintendent of Central Prison, Palayamkottai, dated 08.10.2011, refusing to grant permission to the petitioner to attend the 40th day fathiha of his deceased mother. 2. Heard Mr.S.M.A.Jinnah, learned counsel for the petitioner and Mr.B.Pugalendhi, learned Special Government Pleader for the respondent. 3. More than the qualifications the petitioner has acquired he appears to have a long list of achievements which are extracted him para 11 of the counter filed by the respondent. But, be that as it may, he is a convict now undergoing life imprisonment in Palayamkottai Central Prison, for the past 12 years. His mother died on 02.09.2011. For attending to the funeral rites, the petitioner made a representation and also came up with a Writ Petition on the file of this Court in W.P.(MD) No.9976 of 2011. At the time when the writ petition came up for admission, he was granted an emergency leave in the beginning, for a duration of two hours to attend to the funeral of his mother. However, subsequently, after the respondent gave a long list of cases in which the petitioner was either convicted or accused, this Court dismissed the writ petition by an order dated 06.09.2011. 4. Subsequently, the petitioner made a representation to the respondent to grant him permission to attend to the 40th day fathiha of his mother. That was rejected by the respondent on the ground that there is no provision for granting emergency leave for such an occasion. Aggrieved by the said order, the petitioner is before this Court. https://hcservices.ecourts.gov.in/hcservices/ 2 5. The respondent has filed a counter, giving in detail, the list of cases in which the petitioner is either accused or already convicted. Therefore, a stout opposition is made in the counter for the release of the petitioner on emergency leave. It is also contended that under Rule 6 of the Tamil Nadu Suspension of Sentence Rules 1982, there is no provision for the grant of leave for such an occasion. 6. I have carefully considered the serious objections raised by the respondent. But Rule 6 of the Tamil Nadu Suspension of Sentence Rules 1982 issued by the Government in exercise of the powers conferred by sub- section (5) of Section 432 of the Code of Criminal Procedure prescribes that emergency leave may be granted for attending death or serious illness or marriage of specified categories of relatives of the prisoner. The said Rule is framed in such a manner that it places on equal pedestal, death, serious illness or marriage. This is why it is contended by the learned Special Government Pleader that the 40th day ceremony is not something in respect of which Rule 6 can be invoked. 7. But the words appearing in Rule 6 viz., 'death', 'serious illness' and 'wedding' cannot be given ordinary literal meaning. The word death would certainly include within its fold, the ceremonies that a person is obliged perform, if he happens to be a believer. Otherwise if a plain and literal interpretation is given to the word "death", even a father, mother, son, daughter or brother would be able only to pay last respects by just visiting the place where the dead body is kept, as if such a person is a stranger to the family. The intention of Rule 6 cannot be understood to be reducing the role of a father, son, mother, or daughter to that of a mere visitor paying last respects to a departed soul. Therefore, I am of the view that the word 'death' appearing in Rule 6 should be construed in such a manner as to include within its fold the obligations imposed by the personal law of the party or custom, so that the purpose of grant of leave is satisfied. 8. Viewed from the said angle, I am of the view that the request made by the petitioner cannot be said to fall outside the purview of Rule 6. Moreover, there is no dispute about the fact that the petitioner is lodged in prison for the past 12 years. The counter affidavit does not disclose any crime committed by the petitioner in the past 12 years within the prison premises. There are no bad antecedents mentioned in the counter affidavit about his conduct in the prison. Except stating that the petitioner organised the other prisoners to go on a hunger strike, demanding outside food, there are no other antecedents pointed out by the respondent. In such circumstances, I am of the view that permitting the petitioner to attend to the 40th day fathiha, would be in all fairness and keeping in tune with the traditions of the manner in which prisoners are to be treated. 9. An objection is raised by the learned Special Government Pleader. It is that the 40th day actually fell on 13.10.2011 and that therefore, the prayer does not survive any more. But, it is seen from para 5 of the affidavit in support of the writ petition that the specific case of the petitioner is that the 40th day ceremony is fixed on 30.10.2011. The date is not so rigid. Some people go by the English calender, some go by other prescriptions. Therefore, the 40th day ceremony is not something which https://hcservices.ecourts.gov.in/hcservices/ 3 cannot be performed beyond the 40th day. Hence, the said objection is also over ruled. 10. One more objection raised by the respondent is that the appeal filed by the petitioner against his conviction in the Coimbatore bomb blast case is pending before the Supreme Court. But there is no rule or regulation which prohibits the grant of emergency leave merely on the ground that an appeal filed by him is pending in a forum. The appeal filed by the petitioner may result only in either of the three things viz., his getting acquittal or his sentence getting reduced or getting confirmed. In extra-ordinary cases, it may result in enhancement of penalty. The grant of emergency leave will not certainly have a bearing upon any of the above results which are possible to come out of the appeal pending on the file of the Supreme Court. Therefore, all the objections are over ruled. 11. In fine, the writ petition is ordered directing the respondent to grant emergency leave to the petitioner on 30.10.2011 subject to all other conditions such as the payment charges for escort etc. The petitioner shall be released at 10.00 a.m. on 30.10.2011 and shall be brought back before 4.00 p.m. on the same day. Consequently, connected Miscellaneous petition is closed. No costs. Sd/- Assistant Registrar (A.E) /True Copy/ Sub Assistant Registrar (C.S) To The Superintendent, Central Prison, Palayamkottai. + 1 cc to The Special Government Pleader, SR No.36322 W.P.(MD).NO.11868 of 2011 19.10.2011 akv RJ/20.10.11 (IT) 3p/3c https://hcservices.ecourts.gov.in/hcservices/