1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.10.2011 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P (MD)No.8809 of 2011 and M.P (MD) No.1 of 2011 A.Jenisha ... Petitioner Versus The Superintendent, Central Prison, Palayamkottai, Thirunelveli. ... Respondent PRAYER : Writ petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records from the respondent relating to his order dated 25.07.2011 in No.9327/ThaKu2/2011, quash the same and consequently direct the respondent to grant 30 days leave to the father of the petitioner D.Asokan, Prisoner No.3743, Central Prison, Palayamkottai. For Petitioner : Mr.S.Arunachalam For Respondent : Mr.K.P.Krishnadoss Government Advocate O R D E R The petitioner has come up with the above Writ Petition challenging an order refusing to grant ordinary leave to the father of the petitioner who is serving life imprisonment in Palayamkottai Central Prison. 2. Heard Mr.S.Arunachalam, learned Counsel for the petitioner and Mr.K.P.Krishnadoss, learned Government Advocate for the respondent. 3. The petitioner's father was convicted for the offences punishable under Sections 302, 148, 307, 149, 324, 149 and 435 I.P.C by the IIIrd Additional Sessions Judge, Tirunelveli in S.C.No.274 of 1996. The conviction and life imprisonment ordered by the Sessions Court were confirmed by this Court on an appeal in Cr.A.No.188 of 1999. But the petitioner's father has failed a further appeal before the Supreme Court and it is now pending. https://hcservices.ecourts.gov.in/hcservices/ 2 4. On the ground that the petitioner and his sister are studying IInd Year and Ist year, B.Tech in Jeeppiaar Engineering College, Chennai and that his father's services are required for providing funds for the children by disposing of a property, the petitioner made a representation for the grant of ordinary leave. But the same was rejected by the impugned order, dated 25.07.2011. Aggrieved by the said order, the petitioner is before this Court. 5. The short ground on which the request of the petitioner was rejected by the respondent is that his father's appeal is pending on the file of the Supreme Court and that in terms of Rules 22(1) and 35 of the Tamil Nadu Suspension of Sentence Rules, 1982, he is not eligible for the grant of leave. 6. At the outset Rule 35 indicated in the impugned order has no application to the case on hand. Rule 35 prohibits the grant of leave to a prisoner on whom a case is pending trial. It is not stated by the respondent that any case is pending trial against the petitioner's father. 7. Coming to Rule 22(1), it imposes a restriction upon the grant of ordinary leave to a person who has not completed 3 years of imprisonment. Rule 22(1) reads as follows:- "22. Eligibility for ordinary leave-(1) No prisoner shall be granted ordinary leave unless he has been sentenced by a Court in this State to imprisonment for a term or imprisonment for life for an offence against any law other than a law relating to a matter to which the executive power of the Union Government extends and he has completed three years of imprisonment from the date of initial imprisonment." 8. A careful reading of Rule 22(1) would show that the period of three years has to be calculated "from the date of initial imprisonment". Therefore, the respondent has to calculate the period from the date of initial imprisonment and not the date of imprisonment following the judgment rendered by the Appellate Court. 9. Even according to the respondent, the petitioner's father was initially arrested and imprisoned on 15.02.1999, following his conviction by the Criminal Court. He was released on bail on 09.04.1999 pending appeal. But the appeal was dismissed by a judgment dated 02.07.2007. Consequently, he was again imprisoned on 25.02.2009. 10. But, unfortunately the respondent has calculated, as seen from the counter filed by them, the date of initial imprisonment as 25.02.2009. The respondent has not taken into account the imprisonment suffered by the petitioner's father from 15.02.1999 to 09.04.1999. As a matter of fact, the respondent has taken the entire period from 15.02.1999 till the date of imprisonment following the dismissal of the appeal, as a period during which the petitioner's father was on bail. This is factually incorrect even as per the https://hcservices.ecourts.gov.in/hcservices/ 3 averments contained in the counter. In other words, the failure of the respondent to take into account the date of initial imprisonment as 15.02.1999 has vitiated the impugned order. Therefore, the impugned order is liable to be set aside. 11. As per the counter affidavit, the petitioner's father has completed imprisonment of 2 years 7 months and 22 days as on 30.08.2011. After that date, two months have passed as on today. Yet another period of two months from 15.02.1999 to 09.04.1999 has not been taken into account by the respondent. If all these periods are taken into account, the petitioner's father might become eligible even under Rule 22(1) of the Tamil Nadu Suspension of Sentence Rules, 1982. 12. In view of the above the Writ Petition is allowed, the impugned order is set aside and the respondent is directed to consider the application of the petitioner for the grant of ordinary leave to his father, from the date on which he would complete the three year period, as per the calculation indicated above. The respondent shall remember that the purpose for which the petitioner seeks ordinary leave for his father falls within the parameters of Rule 20(1) and (2) of the Rules. The respondent shall pass orders afresh, granting leave from the date of eligibility as per the Rules within a period of two weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. No costs. Sd/- Assistant Registrar(T&P) /True Copy/ Sub Assistant Registrar To The Superintendent, Central Prison, Palayamkottai, Thirunelveli. +1cc to Mr.S.Arunachalam, Advocate, Sr.No.37039 ps ssk/31.10.2011 /3c -3p/- W.P (MD)No.8809 of 2011 29.10.2011 https://hcservices.ecourts.gov.in/hcservices/