Shanthakumari vs The Government of Tamil Nadu and another

A.S. Venkatachalamoorthy, J.—One Ramakrishnan is undergoing life imprisonment as he was found guilty u/s 302, IPC. The wife of the

said Ramakrishnan by name Shanthakumari has filed the above petition, contending that her husband has completed 10 years, 5 months and 12

days of his imprisonment as on 19th October, 2000 and that the benefits conferred on some prisoners in G.O. Ms. No.1012, dated 14.9.2000,

Home (Prison-IV) Department, should be extended to him as well.

In the affidavit filed in support of the petition, it is stated that till the filing of this petition, prisoner Ramakrishnan came out on parole on several

occasions (the total period being 345 days) and that as per the Ruling of the Supreme Court in Fulchand Shah v. Union of India, W.P. (Cr.)248 of

1998, the parole period does not interrupt the period of detention. Or in other words, the petitioner in arriving at the total period of imprisonment

viz., 10 years, 5 months and 12 days, has also included the parole of 345 days.

The State of Tamil Nadu has filed a counter affidavit, giving the details of period during which the prisoner was let out on parole. As per those

details, the total period of parole granted to prisoner Ramakrishnan is 348 days as on the date of filing of the petition. According to the

respondents, as per Rule 36 of the Tamil Nadu Suspension of Sentence Rules, the day on which the prisoner was released and the day on which

he was readmitted shall both be counted as days of imprisonment but the period of leave shall not be taken as period of sentence undergone by the

prisoner. With reference to the Ruling relied on by the petitioner viz., W.P. No.248 of 1998 (Cr.), it is contended that the same is applicable only

to those who were detained under COFEPOSA and since the petitioner''s husband had been convicted under sections 302 and 392, IPC., and he

being a prisoner, the said Ruling of the Supreme Court would not come to his rescue.

Learned counsel for the petitioner first submitted that as per the Ruling of the Supreme Court, the parole period must also be treated as the

period during which the prisoner suffered imprisonment. Alternatively, he would contend that inasmuch as in the bond executed in Form II by the

prisoners availing Ordinary Leave, the condition which is found in Form-I-A viz., the bond executed by the prisoners availing the Emergency

Leave, that the prisoner would agree the period of absence from the prison to be treated as the period of suspension of sentence is not included, at

least, the period of ordinary leave should be counted as the period during which the prisoner suffered imprisonment.

Learned counsel appearing for the respondents would inter alia contend that the said Ruling of the Supreme Court will not apply to this case as

that Ruling came to be given with reference to a detenu under COFEPOSA. Secondly, he would point out that Rule-36 is a Rule applicable to

both Emergency and Ordinary Leave.

5.A. In Sunil Fulchand Shah Vs. Union of India and Others, . a Five Judges Bench of the Supreme Court had an occasion to consider the various

questions/issues arising u/s 10 and 12 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The Supreme

Court was considering the question whether the period during which the detenu was released on parole has to be included while computing the

period of detention. In that context, the Supreme Court observed as under:-

Since release on parole is only a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it

does not interrupt the period of detention and, thus, needs to be counted towards the total period of deteniion unless the rules, instructions or terms

for grant of parole, prescribe otherwise.

Thus, the Supreme Court has ruled that even in the case of COFEPOSA detenus, if the rules are otherwise, the parole period cannot be counted

as the period during which the detenu was in custody. Hence, we have to now find out as to what the Prisons Act or Tamil Nadu Suspension of

Sentence Rules lay down or prescribe.

Before we take up the discussion as such, it is necessary to refer to the relevant Rules touching on the issues in question. The Government of

Tamil Nadu, in exercise of powers conferred by sub-Section (5) of Section 432 of the Code of Criminal Procedure, 1973 issued Rules known as

The Tamil Nadu Suspension of Sentence Rules, 1982. It is necessary to refer to certain provisions in the said Rules.

Rule-2 is a definition clause and Rule 2(3) defines the term leave as under:

Leave means emergency or ordinary leave

Rule-3 makes it clear that leave cannot be claimed as a matter of right and it is a concession granted to the prisoner.

Rule-5 is to the effect that leave shall be of two kinds namely, emergency leave and ordinary leave.

Rules-6 to 13 deals with Emergency Leave. According to the said provisions, the said Emergency Leave is granted only for specified reasons viz.,

death or serious illness of close relatives set out therein and also to attend the wedding of son, daughter, full brother or full sister of the prisoner.

The Superintendent of Prison is empowered to grant Emergency Leave after satisfying himself that the conduct of the prisoner has been

satisfactory. The certificates produced by the prisoner are verified by the Superintendent before granting leave and the prisoner has to execute a

bond in Form I-A. In the said bond, the prisoner binds himself to do certain things therein, and one among them is to the following effect:

That I will agree to the period of my absence from the prison being treated as suspension of Sentence.

Rules-19 to 27 deal with Ordinary Leave. Rule-26 sets out the grounds for the grant of Ordinary Leave to a prisoner. As per Rule-23, the petition

for Ordinary Leave shall be submitted by the prisoner or by a relative of the said prisoner to the Government direct or sent through the

Superintendent of Prison where the prisoner to whom leave is to be granted is confined. Rule-24 is to the effect that such provisions shall be

processed and the Probation Officer shall personally enquired into and send his report to the Government or to the Superintendent in Form I.

Rule-25 lays down the conditions to be fulfilled by the prisoner while availing of the ordinary leave and one of the conditions being he must execute

a surety bond in Form II for Rs.500 with two sureties for a likesum each.

The next Rule that has to be referred to is Rule-36 which reads as under: -

Treatment of the period of leave;- The day on which the prisoner was released and the day on which he was readmitted shall both be counted as

days of imprisonment but the period of leave shall not be taken as period of senlence undergone by the prisoner.

A. To answer the question as to whether a prisoner can come out on parole and if so what is the procedure to be followed and what is the

effect of the same, the Tamil Nadu Suspension of Sentence Rules, 1982 has been enacted.

As already pointed out, it is made clear therein that leave cannot be claimed as a matter of right and it is only a concession and further that there

are two kinds of leave viz., Emergency Leave and Ordinary Leave. Emergency Leave is granted to enable a prisoner to go out on parole when a

sudden necessity arises such as death or illness of a close relative mentioned in those Rules. Similarly, ordinary leave is granted for certain reasons

and the same are enumerated in Rule 20.

7.B. Rule-36 is to the effect that the day on which the prisoner was released and the day on which he was readmitted shall both be counted as

days of imprisonment but the period of leave shall not be taken as period of sentence undergone by the prisoner. What is to be noted is that in the

said Rule, the Rule-making Authority used the word ""leave"" which has been explained and defined under Rule-2 to mean both Emergency and

Ordinary Leave. Or in other words, if really the Rule-making Authority intended that Rule to apply only to Emergency Leave, then they would

have made it clear.

7.C. It is true that while in Form-IA viz., the bond which a prisoner has to execute while going on emergency leave, he agrees to the period of his

absence from the prison being treated as suspension of sentence and such a clause is absent in the surety bond in Form II, which the prisoner, who

goes on ordinary leave should execute, but that would not defeat the clear provisions found in Rule-36 of the Tamil Nadu Suspension of Sentence

Rules, 1982.

7.D. In fact, in the Jail Manual also, there is a specific provision. Clause-239 (Chapter XVI) of the Jail Manual mentions as to what are the cases

where the period spent by prisoners outside the prison shall not count towards sentence. It reads thus:-

Periods that will not count towards sentence:-

(i) Escape

(ii) Bail

(iii) Suspended period of sentence including emergency leave.

(iv) Unauthorised extension of temporary release.

(v) Suspended period of sentence if directed by the Court.

(vi) Suspension of sentence for police investigation.

(vii) violation of conditional release.

(viii) Extradition.

Even the Emergency Leave is not treated differently. There is no question of treating the Ordinary Leave as the period during which the prisoner

was behind the bars.

Even otherwise, on the grounds of equity and reasonableness, when the Government decided not to take into consideration the Emergency

Leave and to be tacked in with the actual period of imprisonment, there is no question of tacking on the ordinary leave.

Viewing from any angle, it is abundantly clear that whether a prisoner goes on Emergency Leave or Ordinary Leave, that period cannot be

taken into consideration and counted along with the period when the prisoner was actually behind the bars for the purpose of finding out the period

of sentence actually undergone by a prisoner.

In this view of the matter, there is no merit in the Habeas Corpus Petition. Consequently, the same is dismissed.