No Leave For Prisoners Under TN Sentence Suspension Rules During Pendency Of Their Appeal: Madras High Court

Madras High Court has recently reiterated that convict prisoners cannot be granted parole/leave under Tamil Nadu Suspension Of Sentence Rules, 1982 during the pendency of their appeal.

The Division Bench of Justice PN Prakash and Justice R. Hemalatha held that the legal principle enunciated in K.M.Nanavati v. State of Bombay [AIR 1961 SC 112] ought to be followed and the executive power of State for grant of leave cannot be extended when it is the appellate court that can grant suspension of sentence and bail. 

Section 432 CrPC talks about the powers of the government to suspend or remit sentences. TN Suspension Of Sentence Rules was framed under S.432(5) of CrPC. However, Section 389 CrPC talks about suspension of sentence by the appellate court when an appeal is pending. The court also observed that Rule 2(4) of the Sentence Suspension Rules generally means a sentence as finally fixed on appeal or revision.

In 2002, when the apex court was hearing Manokaran v. State of Tamil Nadu (2020), the bench disapproved the practice of state government exercising its executive powers for grant of leave to those covicts whose appeals were pending. The Joint Secretary to the Government was summoned and the Additional Director General Of Prisons issued an office memo.

The office memo stated that no short term leave can be granted to convict prisoners without informing the court in which the prisoner's appeal is pending. The office memo, after clarifying that such convict should approach the appellate court or High Court in the backdrop of Nanavati judgment and SC Directions in Manokaran, underscored that emergency leave or ordinary leave cannot be granted by the state government in such circumstances.

Madras High Court was considering a writ petition filed by a prisoner's mother after the Superintendent of Police, Puzhal Prison rejected the representation seeking one month ordinary leave. The rejection order was based on a) the convict has not completed three years of imprisonment as required under Rule 22 of the Sentence Suspension Rules, and b) appeal challenging the conviction and 10 years' sentence for NDPS Case over the possession of commercial quantity of Alprazolam tablets was pending before the High Court.

The court, although disagreed with ground (a), aligned with the reasoning given in (b) and denied the grant of leave to the prisoner named Wasib Khan.

The court rejected the reasoning in ground (a) since the detention as an undertrial was not calculated by the Prison Authorities while declining the grant of leave. Wasib Khan was in detention since 2016 and remained in prison as an undertrial without bail for three years. In 2019, he was convicted and sentenced to 10 years' rigorous imprisonment.

Referring to Section 428 CrPC, the court observed that the period of custody is calculated from the date of incarceration and hence Wasib Khan has fulfilled the requirements of Rule 22.

"Under Section 428 Cr.P.C., a prisoner is entitled to set off and the benefit of such a set off cannot be denied to him while calculating the actual period of incarceration, for fulfilling the eligibility condition in Rule 22 of the Sentence Suspension Rules. Ergo, the reason (a) assigned in the impugned order for rejecting Wasib Khan's leave application cannot be sustained", the court observed.

However, the court dismissed the writ petition by upholding ground (b) given by the Prison Authority.

Case Title: Wasib Khan v. The State represented by its Deputy Inspector General of Prisons (Chennai Range) & Ors.

Case No: W.P. No.10265 of 2021

Citation: 2022 LiveLaw (Mad) 73

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