1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23-12-2011 CORAM: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.(MD)No.13353 of 2011 S.Manimegalai .. Petitioner Vs. 1.State represented through The Secretary, Home Department, St.George Fort, Chennai – 600 009. 2.The Director General of Prison, Egmore, Chennai – 600 008. 3.The Superintendent of Central Prison, Central Prison, Madurai. .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the respondents to release petitioner P.Solaimalai Raja @ Raja Convict Prisoner No.3911 now lodged in the Central Prison, Madurai on parole for the period of two months to enable the petitioner to undergo surgery in the private hospital. For Petitioner : Mr. C.M.Arumugam for MS/. C. Sundaravadivel G. Thalaimutharasu For Respondents: Mr.M.Alagadhevan, Spl.Govt.Pleader O R D E R The petitioner has come up with the above writ petition seeking the grant of leave for her husband, who is a life convict, to undergo treatment in a private hospital. 2. Heard Mr. C.M.Arumugam, learned counsel for the petitioner and Mr.M.Alagadhevan, the learned Special Government Pleader for the respondents. 3.The petitioner's husband was convicted of an offence under Section 302 r/w 34 IPC and sentenced to undergo life imprisonment, as per the judgment in S.C.No.454 of 2000 dated 05.02.2002. His appeal in C.A.No.265 of 2002 was dismissed on 18.03.2002 and the Special Leave Petition before the Supreme Court was also dismissed. 4.From 06.10.2009 onwards the petitioner's husband undergoing incarceration. He has developed certain ailment on account of which the petitioner seeks permission to treat him in a private hospital. 5.The respondents have filed a counter, paragraph 3 of which explains the position very well. Paragraph 3 reads as follows:- "3. It is submitted that with reference averment contained in Paragraph 3, 4,5,6,7,8,9,10 of the Affidavit, after admission in Central Prison Madurai, he had severe abdomen pain, and sent to Government Rajaji Hospital, Madurai and admitted on 15.5.2010 as in-patient and discharged on 21.5.2010. He was diagnosed as a Gall Bladder Stone and advised surgery for the same. The prisoner was not willing for surgical Management. He is taking treatment at Prison Hospital. https://hcservices.ecourts.gov.in/hcservices/ 2 On 24.06.2011 he had chest pain and referred to Government Rajajai Hospital and admitted at Government Rajaji Hospital as in-patient and discharged on 27.6.2011. Again he had chest pain on 01.11.2011 and admitted at Government Rajaji Hospital, Madurai as in patient and discharged on 12.11.2011. He was diagnosed as Chronic Obstructive Pulmonary disease (COPD) with Mild Pulmonary Hypertension. Further treatment was given in Prison Hospital. Then he was screened for CT Diagnosed (Pulmonary) and report attached along with this report. Detailed report of Government Rajaji Hospital is also attached. Further I submit that contents in Paragraph 4 is not correct. The food provided to the petitioner is daily tested and tasted by the prison doctor, Jailer and Superintendent of Prisons. Further I submit that he was already suffering from such disease while in bail (i.e., Outside of Prison)." 6.The counter affidavit discloses that the petitioner has not come up with a false case. The ailments are admitted. Therefore, the only question is as to the entitlement of the petitioner's husband to a quality treatment according to his own wish. The right to quality medical treatment is part of the right guaranteed under Article 21. Therefore I do not think that the respondents can stand on formalities. 7. The only impediment for the petitioner's husband is that his case would not fall under Rule 20, for the grant of ordinary leave. This is in view of the fact that he has not completed three years of imprisonment. Though the prisoner can seek emergency leave, the period of emergency leave is restricted and the entitlement of the prisoner is also in doubt in terms of Rule 6. Therefore he can only seek ordinary leave. 8. Since he has not yet become eligible for the application of Rule 20, the appropriate action is to direct the Government to consider the case of the petitioner's husband sympathetically under Rule 40. Rule 40 empowers the first respondent to grant exemption. The power of exemption has to be exercised in extraordinary cases and the case of the petitioner is one which falls under the category of extraordinary case. Therefore the writ petition is ordered directing the first respondent to consider the case of the petitioner's husband as an extraordinary case in terms of Rule 40 and pass appropriate orders, within a period of two weeks from the date of receipt of a copy of this order. No costs. SD ASST REGISTRAR ( RTI Act ) /TRUE COPY/ MPK SUB ASST REGISTRAR To 1.The Secretary,Home Department, St.George Fort, Chennai – 600 009. 2.The Director General of Prison, Egmore, Chennai – 600 008. 3.The Superintendent of Central Prison, Central Prison, Madurai. 1CC TO MR. C. SUNDARAVADIVEL, ADVOCATE, SR: 45606: DM::2011:DECEMBER:26:: W.P.(MD)No.13353 of 2011 2P:5C:: 23-12-2011 https://hcservices.ecourts.gov.in/hcservices/