1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.12.2011 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P.(MD)NO.13464 of 2011 P.Rajeswari ... Petitioner Versus 1.State of Tamil Nadu, Rep. by the Principal Secretary to Government, Home (Prison V) Department, Secretariat, Fort St. George, Chennai - 600 009. 2.The Additional Director General of Prison, Egmore, Chennai - 600 008. 3.The Superintendent of Police, Central Prison, Madurai. ... Respondents 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 pertaining to the impugned order in Lr.No.52428/Pri.V/2011-3 dated 26.09.2011 on the file of the Respondent No.1 and quash the same as illegal and consequently direct the respondent No.1 to 3 to release the petitioner's son namely Ravi @ Ravichandran (C.P.No.4967-Central Prison, Madurai) on Parole for one month. For Petitioner : Mr.T.Lajapathi Roy For Respondents : Mr.R.Karthikeyan, Additional Government Pleader. O R D E R The petitioner has come up with the above writ petition challenging an order passed by the first respondent rejecting the application of the petitioner's son for the grant of ordinary leave. 2. Heard Mr.T.Lajapathi Roy, learned counsel for the petitioner and Mr.R.Karthikeyan, learned Additional Government Pleader for the respondents. 3. The petitioner's son was convicted for the offence under Sections 120(b) r/w 302, 325, 324, 201, 212 and 216 I.P.C. and Sections 3, 4 and 5 of Explosive Substance Act 1908, Section 12 of Passports Act 1967 and the provisions of the Foreigners Act, and was sentenced to death, by the https://hcservices.ecourts.gov.in/hcservices/ 2 Designating Court No.1, Ponnamallee by a judgment dated 28.11.1998. But the Supreme Court of India modified his death sentence into one of life, by its judgment dated 11.05.1999. It is admitted by the respondent in the draft counter affidavit circulated to the learned Additional Government Pleader that the petitioner's son has already undergone imprisonment for 20 years 4 months and 13 days. 4. The petitioner's son made a request for the grant of ordinary leave, for the settlement of some properties on 19.07.2011. Since the same was not considered, the petitioner came up with W.P.No.7878 of 2010. The writ petition was disposed of with a direction to the respondents to consider the representation and to pass orders. In pursuance of the said directions, the first respondent has passed the impugned order rejecting the request as per Rule 7(ii), 21(c) and 21(d) of the Tamil Nadu Suspension of Sentence Rules, 1982. Challenging the said order, the petitioner is before this Court. 5. On 25.11.2011, I ordered notice in this writ petition. Today, the learned Additional Government Pleader submitted that a draft of the counter has been sent for the signature of the first respondent. The copy of the counter affidavit was also produced before me. The counsel for the petitioner has no objection to the draft counter being taken note of by me, despite the same not having been filed into Court. 6. In the counter affidavit, the first respondent has admitted that the petitioner's son has spent 20 years 4 months and 13 days as on 26.11.2011. The respondents have also submitted that the Advisory Board for the premature release of the petitioner's son met on 15.04.2010 and the minutes of the Advisory Board have been submitted to the Government on 23.06.2010 and that it is pending consideration of the Government. 7. The respondents have also admitted in the counter affidavit that in the past 20 years, the petitioner's son had availed leave only on three occasions. The first was for five days from 12.09.2001 to 18.09.2011. The second occasion was for six days from 05.08.2002 to 12.08.2002. The third occasion was for three days from 15.05.2003 to 19.05.2003. In other words, the petitioner's son has availed leave only for a total period of 14 days in the past 20 years. 8. Despite the above background, the respondents have stated that since the petitioner's son was convicted in the Rajiv Gandhi Assassination case, his presence outside the prison is considered prejudicial to public peace and tranquility. But the said statement is not supported by any evidence. On the contrary, he has gone on leave only for a total period of 14 days on three different occasions and there is no record to show that there was disturbance to public peace and tranquility on those three occasions. 9. Even inside the prison, his conduct does not appear to be one of any objectionable nature. The respondents have relied upon only three incidents that had taken place inside the prison. One incidence happened on 04.10.1999, in which the petitioner's son quarreled with another convict and he was severely warned. The second incident took place on 07.12.1999, in which he quarreled with the very same co-convict. For this, a period of 10 days was deducted from the remission to which he is https://hcservices.ecourts.gov.in/hcservices/ 3 entitled. On the third occasion viz., 08.07.2008, he is only supposed to have argued with the Superintendent and was severely warned. 10. All the above three circumstances indicated by the respondents in their draft counter affidavit would not make me come to the conclusion that the petitioner's son's conduct and character inside the prison was so bad as to disentitle him for the grant of leave. 11. Thus, the entire draft counter affidavit, does not show either any bad record when the petitioner's son was sparingly outside the prison on Parole or when he was in the prison in the past 20 years. Keeping this background in mind let me now turn on to the provisions of the Tamil Nadu Suspension of Sentence Rules, 1982. 12. The aforesaid Rules contemplates two kinds of leaves viz., emergency leave and ordinary leave. Emergency leave is granted under Rule 6, for attending to the death or serious illness or the wedding of near relatives, named in the Rule itself. There are conditions laid under Rule 7 for the grant of emergency leave. But the petitioner's son has not applied for emergency leave. He has only applied for ordinary leave under Rule 20. Rule 20 reads as follows: "20.Grounds for the grant of ordinary leave: The grounds for the grant of ordinary leave to a prisoner shall be- (i) to make arrangements for the livelihood of his family and for the settlement of life after release; (ii) to make arrangements for the admission of the children in the school or college; (iii) construction or repairing the homestad; * [(iv) to make arrangements or to participate in the marriage of the prisoner, sons, daughters, full brother or full sisters, as the case may be, of the prisoner. (v) setting family disputes like partition etc.; (vi) agricultural operations like sowing, harvesting ect.; and (vii) any other extraordinary reasons.] 13. The eligibility for ordinary leave is indicated in Rule 22. The eligibility criteria are as follows: (i) he must have been sentenced by a Court in this state for a term or imprisonment for life, for an offence against the law, relating to a matter to which the executive power of the State extend and he has completed three years of imprisonment from the date of initial imprisonment; (ii) the period of ordinary leave should not exceed one month at a time; (iii) the second spell of ordinary leave not exceeding one month can be granted only after the completion of two years of imprisonment after the expiry of the previous leave; and (iv) if the prisoner has got only a balance of three years to serve ordinary leave, he can be granted leave not exceeding one month for each https://hcservices.ecourts.gov.in/hcservices/ 4 of the three years, to enable him to make arrangement for settling the family life after release. 14. It is not contended in the draft counter affidavit that the petitioner's son does not fulfil the eligibility criteria fixed under Rule 22. But according to the respondents, the petitioner's son is not eligible, in view of Rule 21(c) and (d) 15. Rule 21 lists out the categories of prisoners who are not eligible for ordinary leave. They are; (a) Offenders classified as habituals; (b) Prisoners sentenced under Sections 392 to 402 of the Indian Penal Code (Central Act 45 of 1860); (c) Prisoners where presence is considered dangerous or prejudicial to public peace and tranquility; (d) Prisoners who are considered dangerous or who are involved in the following prison offences:- (1) assault; (2) outbreak; (3) riot; (4) mutiny; (5) escape (6) instigation to serious violations of prison rules (7) strike; (e) Prisoners committed to prisons in default of furnishing security to keep the peace or be of good behaviour; (f) Prisoners suffering from unsoundness of mind or contagious diseases. In such cases the eligibility shall be decided in accordance with the opinion of the Medical Officer. 16. The respondents have relied upon Rule 21(c). But as I have pointed out, the prisoner has spent more than 20 years inside the prison. He has gone out only on three occasions for short spells. On all those three occasions, his conduct and character in the society, has not come to adverse notice. Even during his prison life, the incidents pointed out by the respondents, do not convince me to hold that his presence was a threat. Therefore, the mere apprehension or presumption in the mind of the respondents that the prisoner's presence is considered dangerous or prejudicial to public peace and tranquility, cannot be accepted unless there is evidence to show, with regard to the past events or conduct on the part of petitioner's son that the opinion formed by the respondents was on an objective basis. 17. Insofar as the matter enumerated under Rule 21(d) is concerned, the incidents that had happened inside the prison do not fall under the category of assault, outbreak, riot, mutiny, escape, instigation to serious violations of prison rules or State. Out of the three occasions narrated by the respondents in their draft counter, two occasions relate to a wordy quarrel with co-prisoner. The third occasion relates to the argument that the petitioner's son picked up with the Superintendent. As Amartya Sen says every Indian is argumentative. Therefore, I do not think that the reasons stated in the impugned order or in the counter affidavit filed by the respondents, could be taken to provide a valid justification for rejecting the request of the petitioner for the grant of ordinary leave. Having spent 20 years, without taking ordinary leave https://hcservices.ecourts.gov.in/hcservices/ 5 even for one occasion, it would be in the fitness of things that the petitioner's son is granted such a leave. 18. Therefore, the writ petition is allowed, the impugned order is set aside and the respondents are directed to grant ordinary leave to the petitioner's son at least for a period of 15 days. The first respondent shall pass appropriate orders within two weeks prescribing the date, time and the modalities for working out the period to be granted. Sd/- Assistant Registrar (Records) /True Copy/ Sub Assistant Registrar To 1.The Principal Secretary to Government, Government of Tamil Nadu, Home (Prison V) Department, Secretariat, Fort St. George, Chennai - 600 009. 2.The Additional Director General of Prison, Egmore, Chennai - 600 008. 3.The Superintendent, Central Prison, Madurai. + 1 cc to Mr.T.Lajapathi Roy, Advocate, SR No.45210 W.P.(MD)NO.13464 of 2011 21.12.2011 vsm RJ/23.12.11 (IT) 5p/5c https://hcservices.ecourts.gov.in/hcservices/