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2014 DIGILAW 3786 (MAD)

Samsunisha v. Superintendent of Prison

2014-10-13

V.RAMASUBRAMANIAN

body2014
Judgment 1. The petitioner, whose husband is a life convict, now lodged in the Central Prison, Coimbatore, has come up with the above writ petition, seeking the issue of a Writ of Mandamus to direct the respondent to release her husband on emergency leave, for attending to his mother, who is now ailing due to cancer. 2. Heard Mr. P. Pugalenthi, learned counsel for the petitioner and Mr. R. Vijayakumar, learned Additional Government Pleader takes notice for the respondent. 3. The petitioner's husband was convicted and sentenced to undergo life imprisonment in S.C. No. 2 of 2000 on the file of the Special Court for Exclusive Trial for Bomb Blast Cases at Coimbatore, by judgment dated 24.10.2007. A Division Bench of this Court dismissed the appeal filed by the petitioner's husband. The petitioner's husband has preferred special leave petitions in S.L.P.(Crl) Nos.24293 - 24296 of 2010 and the same are pending before the Supreme Court. 4. The mother of the convict, who is now aged 78 years and who is suffering from cancer, appears to be admitted in Ramakrishna Hospital at Coimbatore and is receiving treatment. Therefore, the petitioner applied for the grant of emergency leave for 7 days for her husband to attend to his mother. Since no order is passed, the petitioner is before this Court. 5. In the counter affidavit, the respondent has taken two objections. The first is that an appeal is now pending before the Supreme Court and hence, no leave can be granted. 6. But, the said objection has already been considered by me in a number of cases. The pendency of any other case or appeal should be with reference to some other case and not with reference to the same case, out of which, the life imprisonment has been imposed. Therefore, that objection cannot be sustained. 7. The second objection of the respondent is that as against the refusal of the Competent Authority to grant leave, an appeal would lie under Section 12 of the Tamilnadu Suspension of Sentence Rules, 1982. 8. But, the said objection cannot also be sustained in view of the fact that no order has been passed on the representation of the petitioner so far. Therefore, such a contingency does not arise. 9. 8. But, the said objection cannot also be sustained in view of the fact that no order has been passed on the representation of the petitioner so far. Therefore, such a contingency does not arise. 9. It appears from the counter affidavit filed by the respondent that the petitioner's husband was already granted emergency leave during the period January to May 2010 at least on five occasions, when his mother was seriously ill. There is no allegation that the leave availed by the petitioner's husband was either misused or that he did not return to the prison, after the expiry of the leave. Therefore, I do not see any change of circumstances between May 2010 and today for the respondent to take a different stand. 10. The respondent has also cited in paragraph 7 of the counter affidavit, certain instances, which arose within the jail, that has led to the respondent not being inclined to grant leave. 11. But, a careful perusal of the tabulation given in paragraph 7 of the counter affidavit would show that the instances happened mostly during the period from 2000 to 2005. In the year 20092010, only two instances each had happened, whenever the rights of the petitioner's husband were conceived to have been violated. Therefore, I do not think that the decision to deny emergency leave to the petitioner's husband especially when the mother of the petitioner's husband is allegedly ill due to cancer and is receiving treatment at Ramakrishna Hospital, Coimbatore. 12. Therefore, the writ petition is allowed and the respondent is directed to grant emergency leave to the petitioner's husband for a period of seven days, subject to usual terms and conditions. No costs.