Masilamani vs State of Tamil Nadu

K.M. Natarajan, J.—This petition under S. 482 of the Code of Criminal Procedure has been filed by the petitioner-accused Who is

undergoing imprisonment He was convicted by the Sessions Judge, South Arcot District at Cuddalore in S.C. No. 102 of 1974, along with ten

others, for an offence under S. 302 read with S. 34, Indian Penal Code and they were sentenced to undergo imprisonment for life on 4.12.1974.

The same was confirmed by the High Court in the appeal filed by the petitioner. The petitioner would state that he is a holder of M.A. Degree from

Annamalai University and is now doing M.A. Political Science. He commands high respect in the Central Prison and secured several prizes and

marks and special remissions to his credit. His wife Mrs. Mallika, who has filed an affidavit in support of the petition is a practising advocate of this

Court and the petitioner has got a daughter through her. It is seen from the affidavit filed by his wife that the petitioner has already served 12-1/2

years of imprisonment and has earned a special remission of 4 years in the Central Prison, Vellore. Their Lordships of the Supreme Court in W.P.

No. 286 of 1986 passed an order on 16.10.1986 as follows:

The Learned Counsel appearing on behalf of the State-Respondent states that the case of the petitioner for premature release will be considered

within a period of three months. We hope and trust that the case will be properly reconsidered. In view of this statement made on behalf of the

respondent, this writ petition is disposed of.

In the meantime, it is submitted by the petitioner that the mother of the petitioner by name Yasodhai Ammal was admitted in the Thillai Nursing

Home, East Car Street, Chidambaram and Dr. Krishnamurthi is treating on her and that her condition is precarious and the presence of the

petitioner on her side is very much needed during the last days of her life, that she is now aged 65 years and that her health is impaired only on

account of the petitioner''s confinement in jail. It is further stated that the petitioner was also released oh parole on prior occasions arid he complied

with the rules of parole. In the additional-affidavit filed by her, it is stated that the petitioner''s brother Padmanaban working as Branch Post Master

at Adivarahanallur, Chidambaram Taluk, is admitted in the JIPMER Hospital, Pondicherry. He is seriously suffering from Cirrhosis of Liver and his

condition is also precarious and that he is the only brother of the petitioner. Hence in the circumstances it is prayed for a direction to release the

petitioner on parole for a period of one month.

Learned Government Advocate for the respondent submitted that this petition is not maintainable as premature and that the petitioner has to only

move the Government under S. 432, Cr.P.C. to suspend the sentence for proper reasons.

In support of the allegations stated in the affidavit filed by the wife of the petitioner, she has also produced the medical certificate from Dr.

Krishnamurthi, M.B.B.S. Thillai Nursing Home, East Car Street, Chidambaram, to the effect that the petitioner''s mother Yasodhai Ammal is

suffering from severe chest pain and she is seriously ill on account of heart attack and that she is undergoing medical treatment as an inpatient in his

hospital, namely, Thillai Nursing Home, from 17.11.1986. She has also produced a photostat copy of the case-sheet regarding the nature of the

illness of the petitioner''s brother Padmanabhan, who was admitted in the JIPMER Hospital, Pondicherry, on 27.11.86 for the complaint of

cirrhosis of liver. Learned Counsel for the petitioner drew my attention to the decision of this Court reported in Ramakrishnan v. The State of Tamil

Nadu 1983 L.W. Crl. 181 wherein Natarajan, J. held as follows:

Held : this is a case where the High Court can well exercise its powers under S. 482, Crl.P.C., and grant parole and suspension of sentence to the

petitioner for a period of 15 days. The leave asked for is of an emergent nature. In such circumstances, routine factors which have normally to be

taken note of before granting leave cannot have any part to play. In extraordinary situations, the Courts should relegate technical and procedural

matters to the background and take human factors into consideration and give relief to the parties within the bounds of law. Otherwise, the

functioning of Courts would be only as Courts of law and not as Courts of justice. The words ""to secure the ends of justice"" occurring in S. 482,

Crl.P.C. have real meaning and content in them and hence the High Court is bound to exercise its inherent powers on all such occasions when it

deems it its duty to do so. Though the opinion given by the Probation Officer in his report was that the grant of leave to the petitioner may prove a

hazard to public peace and safety and that his return to the village even on short leave, will not be welcomed by the villagers, there is no tangible

material to show that the suspension of sentence is fraught with danger to peace and tranquillity. The other co-accused of the petitioner who have

also been awarded life sentences have been granted parole by the Government. Therefore, the Court may overrule the objections raised by the

Government for granting relief to the petitioner, and direct that there will be suspension of sentence and giant of parole to the petitioner for a period

of two weeks and that the petitioner will surrender himself back to prison custody.

The said decision was also relied on by a Division Bench of this Court in M. Kandasamy v. State W.R.P. No. 11971/83 in W.P. No. 3027/83

dated 7.10.1983. In that case it was held:

Having regard to the fact that the petitioner had been granted parole on an earlier occasion in the year 1978 and to the averments made in his

affidavit that his father is bedridden and to the fact that a considerable delay has been caused in passing an order other way by the Government

due to the non-receipt of the report from the Probation Officer, and to the fact that any parole that is granted after the lifetime of the petitioner''s

father would not be of any use to him, we feel that the circumstances in this case do warrant granting of parole to the petitioner on humanitarian

grounds.

Consequently, parole was granted for 30 days in the above quoted case. The Learned Counsel also drew my attention to the order of this Court in

Chinnasamy alias Thimmakali v. State Crl.M.P. No. 8312 of 1986 wherein a life-convict was granted parole for one month from 6.10.1986 to

6.11.1986 and subsequently the same was extended by another week, by me, in Crl.M.P. Nos. 11031 and 11032 of 1986.

Learned Government Advocate relied on the decision of Sengottuvelan, J. in R. Rajan v. State Crl.M.P. No. 3177 of 1985 wherein he declined

to grant parole. It has to be noted that in the circumstances of the said case the learned judge has pointed out that there is absolutely no emergency

and the petitioner could have approached the Government or the prison authority and without the same, he cannot file the petitioner under S. 482,

Cr.P.C. The Learned Counsel for the petitioner, on the other hand, produced the order passed by the learned Judge, Sengottuvelan, J. in

Thyagarajan v. State Crl.M.P. No. 5736 of 1985 wherein he has granted parole for 30 days on the ground that the petitioner''s wife is going to

deliver a child and this is a fit case for granting parole. It is not in dispute that in normal circumstances the prisoner has to approach the jail

authorities and the State Government for suspension of the sentence and release of him on parole under the Tamil Nadu Suspension of Sentence

Rules for grant of parole. But, as rightly observed by Natarajan, J. in Ramkrishnan v. The State of Tamil Nadu 1983 L.W. (Crl.) 181 referred to

above, in extraordinary situations, the Courts should relegate technical and procedural matters to the background and take human factors into

consideration and give relief to the parties within the bounds of law. Otherwise, the functioning of courts would be only as Courts of law and not as

Courts of Justice. The above view was also affirmed by a Division Bench of this Court in the above quoted writ petition. In the instant case, it is

not in dispute that the petitioner has been granted parole on prior occasions and he has complied with the rules of parole properly. It is also seen

from the affidavit filed by the wife of the petitioner, who is an advocate, and the medical certificate and and the case sheet produced by her that the

mother of the petitioner is seriously laid up in the nursing home and his only brother is admitted in the JIPMER Hospital, Pondicherry and that the

presence of the petitioner is very much required as his mother would like to see him very much before her life comes to an end. This is an

extraordinary situation which warrants this Court to exercise the power under S. 482, Cr.P.C. on humanitarian grounds. The ratio laid down in the

above quoted cases is on all fours applicable to the facts of this case.

In the result, there will be a suspension of sentence and grant of parole to the petitioner for a period of two weeks from 4.12.1986 to

17.12.1986 on the ground of emergency and the petitioner will surrender himself back to the prison before the Superintendent, Central Prison,

Vellore, before 12 noon on 18.12.1986 and the petition is ordered accordingly.