Madras High Court
Rajammal vs The Deputy Inspector General Of … on 20 April, 2026
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 20.04.2026
PRONOUNCED ON : 28.04.2026
CORAM:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
W.P.(Crl.) (MD) Nos.1752, 1981, 2313 and 2331 of 2026
W.P. (Crl.) (MD) No.1752 of 2026
Rajammal : Petitioner (s)
Vs.
1. The Deputy Inspector General of Prisons,
Prisons and Correctional Services Department,
Madurai Range,
Madurai.
2. The Superintendent of Prison,
Central Prison,
Madurai.
3. The Superintendent of Police,
Ramanathapuram District.
4. The Inspector of Police,
Kenikarai Police Station,
Ramanathapuram District. : Respondent(s)
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
Prayer : Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, calling for the records of
the order passed by the first respondent in No.964/cj.2/2025 dated
22.09.2025 and quash the same and consequently directing the first and
second respondents to grant 21 days ordinary leave without escort to the
petitioner's son namely Sankar, S/o.Ramu, Convict Prisoner (C.P No.
1801, PID No.384453) now confined under Central Prison, Madurai.
For Petitioner : Mr.S.Srikanth
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
W.P. (Crl.) (MD) No.1981 of 2026
Ramar : Petitioner (s)
Vs.
1. The Home Secretary,
Home Department (Prison),
Secretariat, Fort St.George,
Chennai – 600 009.
2. The Deputy Inspector General of Prisons,
Madurai Range,
Madurai – 625 001.
3. The Superintendent of Police,
Central Prison,
Palayamkottai – 627 007.
4. The Inspector of Police,
Thachanalur Police Station,
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
Tirunelveli District. : Respondent(s)
Prayer : Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, calling for the records of
the order passed by the second respondent in No.901/cj.2/2025 dated
28.08.2025 and quash the same and consequently directing the third
respondent to grant 28 days ordinary leave without escort to the
petitioner's brother namely Thangaraj, S/o.Subbukutti, PID No.21380.
Aged 39, currently confined in the Central Prison, Palayamkottai.
For Petitioner : Mr.P.M.Basil
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
W.P. (Crl.) (MD) No.2313 of 2026
Selvi : Petitioner (s)
Vs.
1. The State Rep. by its
Deputy Inspector General of Prisons,
Egmore, Chennai – 600 008.
2. The Deputy Inspector General of Prison,
Madurai Range, Madurai District.
3. The Superintendent of Police,
Special Prison for women (conviction),
Madurai. : Respondent(s)
Prayer : Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, calling for the records of
the proceedings in No.217/Utha.2/2026 dated 02.03.2026 and quash the
impugned order in passed by the second respondent and direct the second
respondent to grant ordinary leave the petitioner's mother, namely
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
Pawnthai W/o.Devaraj (PID No.287667) presently convict in Central
Prison, Madurai.
For Petitioner : Mr.S.Krishnamoorthy
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
W.P. (Crl.) (MD) No.2331 of 2026
Sekar : Petitioner (s)
Vs.
1. The State Rep. by its
Deputy Inspector General of Prisons,
Egmore, Chennai – 600 008.
2. The Deputy Inspector General of Prison,
Madurai Range, Madurai District.
3. The Superintendent of Police,
Special Prison for women (conviction),
Madurai. : Respondent(s)
Prayer : Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, calling for the records of
the proceedings in No.216/Utha.2/2026 dated 02.03.2026 and quash the
impugned order in passed by the second respondent and direct the second
respondent to grant ordinary leave the petitioner's mother, namely
Lakshmi W/o.Balan (PID No.287666) presently convict in Central
Prison, Madurai.
For Petitioner : Mr.S.Krishnamoorthy
For Respondents : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
COMMON ORDER
[Order of the Court was made by N.ANAND VENKATESH, J.]
These petitions raise a common question as to whether a
mandamus, under Article 226 of the Constitution, can be issued directing
release of a convict prisoner on ordinary leave notwithstanding his
ineligibility to avail such leave by virtue of Rule 21 of the Tamil Nadu
Suspension of Sentence Rules, 1982.
2. W.P.Crl.(MD) No.1752 of 2026 has been filed challenging the
impugned proceedings of the first respondent made in No.964/Utha.
2/2025, dated 22.09.2025 and for a consequential direction to the first
and second respondents to grant 21 days ordinary leave without escort, to
the petitioner’s son, who was convicted for offences under Sections 8(c)
read with 20(b)(ii)(c) of the “Narcotic Drugs and Psychotropic
Substances Act, 1985” (hereinafter referred to as “NDPS Act” for
brevity) by the Additional District Judge (E.C. Court), Pudukottai, in
C.C.No.30 of 2022 and was sentenced to undergo 12 years rigorous
imprisonment by judgment dated 26.05.2023. Aggrieved by the same, an
appeal came to be filed before this Court in Crl.A.(MD) No.507 of 2023
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and while confirming the conviction, this Court modified the sentence to
five years by judgment dated 15.10.2025. Accordingly, the convict is
presently serving sentence at Central Prison, Madurai.
3. The petitioner submitted a representation seeking for 21 days
ordinary leave without escort on the ground that the petitioner suffered
from severe chest pain and he also suffers from various ailments and he
has to take immediate treatment. For that purpose, an ancestral property
must be sold to augment funds. Accordingly, the petitioner sought for 21
days ordinary leave without escort for his son.
4. The representation made by the petitioner was rejected by the
first respondent through proceedings dated 22.09.2025 on the ground
that, since the convict has been convicted for offences under the NDPS
Act involving commercial quantity, there is a bar under Rule 21(h)(3) of
the “Tamil Nadu Suspension of Sentence Rules, 1982” (hereinafter
referred to as “Rules” in short) and the convict is not entitled for ordinary
leave.
5. The other matter ie., W.P.Crl.(MD) No.1981 of 2026 has been
filed challenging the proceedings of the second respondent made in No.
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
901/Utha.2/2025, dated 28.08.2025, wherein the convict is undergoing
life sentence at Central Prison, Palayamkottai and a representation was
made by the petitioner, who is the brother of the convict, on the ground
that the sister of the convict is suffering from medical complications and
she requires the physical and emotional support of the convict and also to
arrange money to undergo treatment.
6. The second respondent through the impugned proceedings dated
28.08.2025, has rejected the representation seeking for ordinary leave on
the ground that the convict was convicted for offence under Section 396
of IPC and there is a bar under Rule 21(b) of the Rules. Aggrieved by the
same, the present writ petition has been filed before this Court.
7. When the matter came up for hearing on 15.04.2026 and
17.04.2026, this Court expressed its mind to the learned counsel
appearing for the respective petitioners that, when there is a specific bar
under the relevant Rules, the same cannot be got over by asking this
Court to exercise its jurisdiction under Article 226 of the Constitution of
India even without questioning the validity of the Rule. In other words,
we informed the counsel that THE grant of ordinary leave under the
Rules will be subject to fulfilling the requirements of the Rules and it
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
cannot be claimed as a matter of right and if the requirement is not
satisfied and there is a specific bar in granting ordinary leave, this Court
cannot disregard the Rule and exercise its jurisdiction under Article 226
of the Constitution of India.
8. The learned counsel for the petitioners submitted that this issue
has been considered by the earlier Division Benches and hence, sought
for some time to produce those judgments. The learned Additional Public
Prosecutor also sought for some time to produce the relevant judgments
before this Court.
9. When the matter was taken up for hearing today, the learned
counsel for the petitioners and the learned Additional Public Prosecutor
appearing for the respondents placed the following judgments before this
Court for consideration:
I. Judgments which held that leave can be considered only within
four walls of the Rules:
· Bhuvaneswari v. State, (W.P. No.13462 of 2021, dated
30.07.2021);
· M.Jeyammal v. State, (W.P. No.3018 of 2022, dated
22.04.2022);
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
· Chitra v. State, (W.P.No.2768 of 2022, dated
28.02.2022).
II. The judgments where this Court exercised its jurisdiction under
Article 226 of the Constitution of India and granted ordinary leave
dehors the Rule are:
· Selvam v. State (W.P.No.27137 of 2023);
· Pakiyalakshmi v. State, (W.P.(MD) No.22254 of 2022,
dated 23.09.2022).
10. Reliance was also placed by counsels appearing on either side
on the following judgments:
(i) Narayan Chetanram Chaudhary v. State of
Maharashtra, reported in (2000) 8 SCC 457;
(ii) Yasmin v. The Deputy Inspector General of Prisons,
(W.P.No.11130 of 2025, dated 03.07.2025);
(iii) The State v. Yesu @ Velaiyan, reported in 2011 (5) CTC
353.
11. The attention of this Court was also drawn to the latest
judgment of the Division Bench of this Court in Sheefa Rani v. The
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
Secretary to Government of Tamil Nadu, in W.P.(Crl.) Nos.722 etc. of
2025 dated 19.11.2025, where the Division Bench dealt with cases where
regular appeals were pending before the concerned Courts challenging
the conviction and sentence passed by the trial court and in the
meantime, those accused persons started invoking the jurisdiction of this
Court under Article 226 of the Constitution of India and sought for
ordinary leave/emergency leave even without seeking for bail before the
concerned court where the appeal is pending. This Court, on considering
the entire law on the subject and after taking note of two Full Bench
judgments, which were in conflict with each other, referred the matter to
a Larger Bench. We are given to understand that the reference is still
pending as on date.
12. W.P.Crl.(MD) No.2313 of 2026 and W.P.Crl.(MD) No.2331 of
2026, came up for hearing on 24.04.2026 and this Court passed the
following orders:
“W.P.Crl.(MD) No.2313 of 2026:
Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor
takes notice on behalf of the respondents.
2. The petitioner has sought for ordinary leave to her mother,
who is presently serving sentence at Central Prison, Madurai.
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
She was convicted and sentenced for the offence under the
NDPS Act. The request made by the petitioner seeking for
ordinary leave came to be rejected by the second respondent
through the impugned proceedings dated 02.03.2026 mainly
on the ground that the petitioner’s mother was convicted for
the offence under the NDPS Act for possessing commercial
quantity and therefore, there is a bar under Rule 21(h)(3) of
Tamil Nadu Suspension of Sentence Rules, 1982.
3. We have already heard the connected writ petitions
pertaining to the same issue and reserved orders. Hence, this
writ petition shall also be tagged along with those connected
writ petitions and a common order can be passed by this
Court.
W.P.Crl.(MD) No.2331 of 2026:
Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor
takes notice on behalf of the respondents.
2. The petitioner has sought for ordinary leave to his mother,
who is presently serving sentence at Central Prison, Madurai.
She was convicted and sentenced for the offence under the
NDPS Act. The request made by the petitioner seeking for
ordinary leave came to be rejected by the second respondent
through the impugned proceedings dated 02.03.2026 mainly
on the ground that the petitioner’s mother was convicted for
the offence under the NDPS Act for possessing commercial
quantity and therefore, there is a bar under Rule 21(h)(3) of
Tamil Nadu Suspension of Sentence Rules, 1982.
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3. We have already heard the connected writ petitions
pertaining to the same issue and reserved the orders. Hence,
this writ petition shall also be tagged along with those
connected writ petitions and a common order can be passed
by this Court.”
13. The issue that arises for consideration in these writ petitions is
whether this Court can exercise its powers under Article 226 of the
Constitution of India to issue a mandamus to grant ordinary leave in the
teeth of an express bar under the Rules. To examine this question, it is
first necessary to understand the scope of the Suspension of Sentence
Rules, 1982.
SCOPE OF “SUSPENSION OF SENTENCE”
14. Under our constitutional scheme, the power of the judiciary
ends upon the delivery of a judgment and order of conviction and
sentence, and it is thereafter the duty of the executive to carry the
sentence into effect. The concept of suspension of sentence is dealt with
at two places under the Cr.P.C/BNSS, 2023 : Section 389 Cr.P.C,
presently Section 423 BNSS, which contemplates suspension of sentence
by an Appellate Court, pending decision in the appeal and Section 432
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
Cr.P.C, presently Section 474 BNSS, 2023 which contemplates
suspension of sentence by the Government. Thus, suspension of sentence
may be made either by the Court or by the Government depending upon
the stage at which such request is made.
15. The legal position in this regards was lucidly explained by B.P
Sinha, CJ in Nanavati v State of Bombay, AIR 1961 SC 112. In that
case, the accused had been tried and acquitted for murder in a jury trial
before the Sessions Judge of Greater Bombay. The Presiding Judge
disagreed with the jury and referred the case to the High Court on its
criminal original side. The High Court convicted and sentenced the
accused to life imprisonment. Immediately on pronouncement of
judgment, the execution of the sentence was suspended by the Governor
of Bombay Sri Prakasa by exercising his power under Section 161 of the
Constitution. The matter reached the Supreme Court, and the question
which was posed before the Constitution Bench was as follows:
“Section 401 occurs in Chapter XXIX, headed “Of
suspensions, remissions and commutations of sentences”.
This Chapter, therefore, does not deal with all the powers
vested in the Governor under Article 161 of the
Constitution, but only with some of them. Section 426 is in
Chapter XXXI, headed as “of appeal, reference and13/57
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026revision”. Section 426, therefore, deals specifically with a
situation in which an appeal is pending and the appellate
court has seisin of the case and is thus entitled to pass such
orders as it thinks fit and proper to suspend a sentence. It
will thus be seen that whereas Chapter XXIX, in which
Section 401 occurs, deals with a situation in which
pendency of an appeal is not envisaged, Section 426 deals
with a situation in which pendency of an appeal is
postulated. In other words, Chapter XXIX deals with
persons sentenced to punishment for an offence simpliciter
in general terms, whereas Section 426 deals with a special
case and therefore must be out of the operation of Section
401. But it has been vehemently argued by the learned
Advocate-General that the words “at any time” indicate
that the power conferred by Section 401 may be exercised
without any limitation of time. In the context of Section 401
“any time” can only mean after conviction. It cannot mean
before conviction, because there cannot be any sentence
before conviction. The question then is:
“Does it cover the entire period after the order of
conviction and sentence even when an appeal is pending
in the appellate court and Section 426 can be availed of by
the appellant?”
16. At this juncture, it must be clarified that Section 401 of the
Cr.P.C 1898 corresponds to Section 432 Cr.P.C 1973 which is presently
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
Section 474 of the BNSS, 2023, and Section 426 of the Cr.P.C 1898
corresponds to Section 389 Cr.P.C 1973 which is presently Section 430
of the BNSS, 2023. Thus, the precise question in Nanavati was whether
the power of the Government to suspend a sentence under Section 401
Cr.P.C 1898 corresponding to Section 432 Cr.P.C and Section 474 BNSS,
2023 could be exercised when the appeal is pending before the Court.
Answering this question, the Constitution Bench held as follows:
“It will be seen that Section 426 is as unfettered by other
provisions of the Code as Section 401 with this difference
that powers under Section 426 can only be exercised by
an appellate court pending an appeal. When both the
provisions are thus unfettered, they have to be
harmonised so that there may be no conflict between
them. They can be harmonised without any difficulty, if
Section 426 is held to deal with a special case restricted
to the period while the appeal is pending before an
appellate court while Section 401 deals with the
remainder of the period after conviction. We see no
difficulty in adopting this interpretation nor is there any
diminution of powers conferred on the executive by
Section 401 by this interpretation. The words “at any
time” emphasise that the power under Section 401 can be
exercised without limit of time, but they do not
necessarily lead to the inference that this power can also
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026under Section 426.”
17. From the above, it is limpid that the power to suspend
sentences under Section 389 & 432 Cr.P.C operate in two different and
distinct stages. The power under Section 389 stands on a different plane
and can be exercised when the matter is in seisen before the Court,
whereas Section 432 can be exercised for the “remainder of the period
after conviction”. If there remained any doubt, it was put to rest by the
following observations of B.P Sinha, CJ:
“So long as the judiciary has the power to pass a
particular order in a pending case to that extent the
power of the Executive is limited in view of the words
either of Sections 401 and 426 of the Code of Criminal
Procedure and Articles 142 and 161 of the
Constitution.”
18. The legal position that suspension of sentence under Section
432(5) Cr.P.C cannot be granted when the matter is pending before an
Appellate Court or when the Appellate Court has considered and rejected
the petition for suspension of sentence is also reiterated by the Andhra
Pradesh High Court in Veeramchaneni Raghavendra Rao v. Govt. of
A.P., 1984 SCC OnLine AP 205 : (1985) 1 AP LJ 383 and Thirumala
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
Reddy Thamasamma v. Govt. of AP, 1992 SCC OnLine AP 93 : (1992) 2
AP LJ 45. In the last mentioned decision, it was expressly declared:
“the power under section 432 of the Criminal Procedure Code
which corresponds to section 401 of the old Code is not
available for exercise during the period when an appeal is
pending before this Court.”
19. Similarly, in Umesh Kumar Singh v State of Rajasthan, 2012
SCC Online Raj 1827, a Division Bench of the Rajasthan held:
“Therefore, while considering the question of exercise of
powers by the executive and the judiciary, the principle laid
down by the constitution bench of the Hon’ble Supreme Court
in the case of K.M. Nanavati (supra) was that so long as the
judiciary has power to pass the particular order in a pending
case to that extent the power of the executive is limited and in
view of the words either of section 401 and 426 cr.P.C. and
Articles 142 and 161 of the Constitution. It would, thus, follow
that what is covered under Article 142 is not covered under
Article 161 and what is covered by Section 426 is not covered
by section 401 Cr.P.C. The Governor or the executive would
not exercise the powers until the matter is seized with the
court and is sub-judice before it.”
20. In Ramesh Kumar v. State of Rajasthan, 2013 SCC OnLine
Raj 1380, a Full Bench of the Rajasthan High Court speaking through
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
Dinesh Maheshwari, J (as he then) took the same view and held as
follows:
“the right of an accused/prisoner/convict to be released on
parole cannot be considered by the State Government under
the provisions of the Rajasthan Prisoners Release on Parole
Rules, 1958 during the pendency of any appeal filed by
him/her against his/her conviction.”
21. In Vikas Yadav v. State (NCT of Delhi), 2016 SCC OnLine Del
3123, the Delhi High Court also held, following Nanavati’s case, as
under:
“The foregoing discussion leaves no manner of doubt that
when a challenge against the sentence awarded to the
petitioner is pending determination before the Supreme Court
in a criminal appeal, the power of the executive to consider a
representation for parole made by the petitioner is eclipsed
and cannot, therefore, be exercised.
15. Consequently, in view of the pendency of a criminal appeal
instituted on behalf of the petitioner assailing the sentence
awarded to him by the courts below, before the Supreme
Court, the official respondent could not have entertained a
representation for parole on his behalf in terms of the decision
of the Supreme Court in K.M. Nanavati (supra).”
22. And lastly a Division Bench of this Court in L. Wasib Khan v.
State, 2022 (2) CTC 598 also followed Nanavati’s case, and held as
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
under:
“The legal principle that has been set out in Nanavati (supra)
is that when the appellate Court has the power to grant
suspension of sentence and bail, pending appeal, the executive
power of the State cannot extend to grant parole or leave or
suspension of sentence.”The above decision was followed by another Division Bench of this
Court in T.Ramalakshmi v. Additional Director General of Police, 2023
SCC OnLine Mad 3203.
SUSPENSION OF SENTENCE AND GRANT OF LEAVE
23. In Maru Ram v. Union of India, (1981) 1 SCC 107, the
Supreme Court explained the concept of suspension of sentence by the
Government in the following words:
“Sentencing is a judicial function but the execution of the
sentence, after the courts pronouncement, is ordinarily a
matter for the executive under the Procedure Code, going by
Entry 2 in List III of the Seventh Schedule. Keeping aside the
constitutional powers under Articles 72 and 161 which are
“untouchable” and “unapproachable” for any legislature, let
us examine the law of sentencing, remission and release.
Once a sentence has been imposed, the only way to terminate
it before the stipulated term is by action under Sections
432/433 or Articles 72/161. And if the latter power under the
Constitution is not invoked, the only source of salvation is the19/57
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026play of power under Sections 432 and 433(a) so far as a
“lifer” is concerned. No release by reduction or remission
ofsentenceis possible under the corpus juris as it stands, in
any other way.”Thus, once a sentence has been imposed the only way it can be
terminated in law before its stipulated term is by recourse to Articles
72/161 or under Section 432/433 Cr.P.C, 1973 and presently under
Section 473-477 of the BNSS, 2023. It is first necessary to set out the
relevant provisions in the Constitution. Articles 72 and 161 reads as
follows:
“72. Power of President to grant pardons, etc., and to
suspend, remit or commute sentences in certain cases
(1)The President shall have the power to grant pardons,
reprieves, respites or remissions of punishment or to suspend,
remit or commute the sentence of any person convicted of any
offence–(a)in all cases where the punishment or sentence is
by a Court Martial;(b)in all cases where the punishment or
sentence is for an offence against any law relating to a matter
to which the executive power of the Union extends;(c)in all
cases where the sentence is a sentence of death.(2)Nothing in
sub-clause (a) of clause (1) shall affect the power conferred
by law on any officer of the Armed forces of the Union to
suspend, remit or commute a sentence by a court martial.
(3)Nothing in sub-clause (c) of clause (1) shall affect the
power to suspend, remit or commute a sentence of death
exercisable by the Governor of a State under any law for the20/57
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026time being in force.”
161. Power of Governor to grant pardons, etc., and to
suspend, remit or commute sentences in certain cases
“The Governor of a State shall have the power to grant
pardons, reprieves, respites or remissions of punishment or to
suspend, remit or commute the sentence of any person
convicted of any offence against any law relating to a matter to
which the executive power of the State extends.”A close examination of the aforesaid provisions of the Constitution
would show that “pardons, reprieves, respites or remissions” are granted
in respect of punishment whereas the power to “suspend” “remit” or
“commute” operates in relation to a sentence imposed as a consequence
of such punishment. As we will shortly see, various Benches of this
Court appear to have used these expressions synonymously and loosely
which has consequently resulted in confusion reigning supreme.
24. The distinction between “pardon” and “remission” was
explained by a Constitution Bench of the Supreme Court in Sarat
Chandra Rabha v. Khagendranath Nath, AIR 1961 SC 334, in the
following words:
“Now it is not disputed that in England and India the effect of
a pardon or what is sometimes called a free pardon is to
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026of the offence for which it is granted and from all statutory or
other disqualifications following upon conviction.”
But the same effect does not follow on a mere remission
which stands on a different footing altogether. In the first
place, an order of remission does not wipe out the offence; it
also does not wipe out the conviction. All that it does is to
have an effect on the execution of the sentence; though
ordinarily a convicted person would have to serve out the full
sentence imposed by a court, he need not do so with respect
to that part of the sentence which has been ordered to be
remitted. An order of remission thus does not in any way
interfere with the order of the court; it affects only the
execution of the sentence passed by the court and frees the
convicted person from his liability to undergo the full term of
imprisonment inflicted by the court, though the order of
conviction and sentence passed by the court still stands as it
was.”Thus, the distinction between pardon and remission rests in the fact that
in the former the conviction and sentence is wiped out whereas in the
latter the conviction remains unaltered and the sentence alone is
shortened by remitting the portion of the unexpired sentence thereby
enabling the convict to come out of prison on a particular date.
25. In the context of a sentence, the meaning of the terms
“reprieve”, “respites”, “remission” and “commutation” have been
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explained by the Supreme Court in State (Govt. of NCT of Delhi) v.
Prem Raj, (2003) 7 SCC 121 as under:
“Reprieve means a stay of execution of sentence, a
postponement of capital sentence. Respite means awarding a
lesser sentence instead of the penalty prescribed in view of
the fact that the accused has had no previous conviction. It is
something like a release on probation for good conduct
under Section 360 of the Code. Remission is reduction of the
amount of a sentence without changing its character. In the
case of a remission, the guilt of the offender is not affected,
nor is the sentence of the court, except in the sense that the
person concerned does not suffer incarceration for the entire
period of the sentence, but is relieved from serving out a part
of it. Commutation is change of a sentence to a lighter
sentence of a different kind (Section 432-A empowers the
appropriate Government to suspend or remit sentences).”
26. Chapter XXXIV of the BNSS deals with “Execution,
Suspension, Remission and Commutation of Sentences”. Part A to D of
Chapter XXXIV deals with Execution of the sentence whereas Part E
comprising of Sections 472-477 of the BNSS deals with “Suspension,
Remission and Commutation”. The statutory power of suspension and
remission is governed by Section 473 whereas the power to commute
sentences is governed by Section 474. Both Section 473 and 474 are
subject to the restrictions imposed by Section 475 (previously Section
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433-A Cr.P.C). What needs emphasis is the fact that “suspension” is not
the same thing as “remission” and that the power to remit a portion of the
unexpired sentence exists both under Articles 72/161 and Section 473
whereas the power to suspend a sentence is governed by Section 473(1)
& (5) respectively which correspond to Section 432(1) and (5) of the
Cr.P.C 1973.
27. In exercise of power under Section 432(5) Cr.P.C., the State of
Tamil Nadu framed the Suspension of Sentence Rules, 1982 which
provide for release by way of ordinary leave or emergency leave. Rule 36
makes it clear 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. The significance of excluding the
aforesaid period of leave was explained by a Full Bench of this Court in
State v. Yesu, 2011 SCC OnLine Mad 1463 : (2011) 5 CTC 353, wherein
it was held:
“in view of the express provision in the form of Rule 36 of the
Tamil Nadu Suspension of Sentence Rules, there can be no
manner of doubt that any period spent on either emergency
leave or ordinary leave, shall not be counted as sentence
period. It is essentially because, on such leave being granted,24/57
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026the period of sentence undergone by the prisoner is disrupted.
The said disruption is on account of the suspension of
sentence under Section 432 of Cr.P.C. The said Rules only
regulate the grant of suspension under Section 432 of Cr.P.C.
In other words, by grant of leave, the period of sentence is
suspended and therefore the suspension period is not counted
as period of sentence undergone. In respect of this position,
there is no contrary opinion expressed by any Counsel before
us.”Thus, the position of law was settled that the grant of leave amounted to
suspension of sentence.
28. At this juncture, it is necessary to digress a little. In July, 1980
the Ministry of Home Affairs, Government of India set up a committee to
examine the prison system in India and to recommend and devise
measures to reform the jail system in the country. The committee was
headed by Justice A.N Mulla, a former judge of the Allahabad High
Court with eminent members like Shri C.S Malliah, former IG of Prisons,
Karnataka and Dr (Mrs.) M. Sarada Menon, a former Director of the
Mental Hospital, Madras. The Report of the All India Committee on Jail
Reforms (1980) is extremely illuminating. Chapter XX of this Report
deals with “System of Remission, Leave and Premature Release”.
Dealing with the concept of leave, the Committee made the following
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observations:
“Different concepts such as parole, furlough, ticket of leave,
home leave, etc., are used in different states to denote grant of
leave or emergency release to a prisoner from prison. The
terminology used is not uniform and is thus confusing. There
is also no uniformity with regard to either the grounds on
which leave is sanctioned or the level of authority empowered
to sanction it. There is also a lot of diversity in the procedure
for grant of leave. The scales at which these leaves are
granted also differ from State to State; for example, in some
States parole is granted for a period extending upto 15 days
while in other States it is restricted to 10 days only.
Leave and emergency release to inmates are undoubtedly
progressive measures which must continue in our prison
system. The release of a prisoner on leave not only saves him
from evils of prisonisation but also enables him to maintain
social relations with his family and the community. This also
helps him maintain and develop a sense of self-confidence.
Continued contacts with family and the community sustain in
him a hope in life. During the course of our discussions with
eminent persons it was strongly advocated by them that the
provisions for grant of leave should be liberalised to help the
prisoner in maintaining harmonious relationship with his
family. The privilege of leave should, of course, be allowed to
selected prisoners on the basis of set norms of eligibility and
propriety.
……..
……..
Uniformity should be brought about in the terminology used
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026in connection with a prisoner’s temporary release from
prison. In our view, there should be two types of leave, viz.,
(1) Leave, to be regularly granted to every eligible prisoner,
and (2) Special Leave, to be granted to a prisorer in special
situations.
20.12.2 All convicts except those falling in the categories
enumerated below should be eligible for being released on
leave and special leave :
(i) Offenders classified as habituals, provided they have not
earned a higher grade in the proposed progressive stage
system ;
(ii) Prisoners sentenced under sections 392 to 402 of the
I.P.C.;
(iii) Prisoners who are considered dangerous and who are
involved in serious prison violence like assault, outbreak, riot,
mutiny or escape, or who have been found instigating serious
violation of prison discipline ;
(iv) Prisoners committed for failure to give security to keep
peace or good behaviour.
(v) Prisoners suffering from mental illness, if not certified by
the medical officer to have recovered ;
(vi) Prisoners whose work and conduct has not been good
during the preceding 12 months ;
Prisoners convicted of offence against any law relating to
matters to which the executive power of the Union
Government extends unless approved by the Union
Government ;
(viii) Prisoners whose release on leave is likely to have
repercussion elsewhere in the country.”
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29. Most of the observations/recommendations of the All India
Committee on Jail Reforms stand incorporated in Rule 21 of the Tamil
Nadu Suspension of Sentence Rules, 1982 except the recommendation at
paragraph 20.12.2(vi) and (viii). As regards (vii), the same has been
provided for in Rule 22(1) of the TN Suspension of Sentence Rules. The
observation that grant of leave is a privilege also finds a place in Rule 3
of the T.N Suspension of Sentence Rules, 1982 wherein it is made clear
that leave is only a concession granted to a prisoner and cannot be
claimed as a matter of right.
CONTRARY VIEW IN LATHA v. STATE OF TAMIL NADU
30. We have found it necessary to delve into the aforesaid aspects
in detail as a Division Bench of this Court in Latha v. State, 2023 MHC
5402, has gone on to take a view that the grant of leave would not
amount to a suspension of sentence. It was held:
“At the outset, we intend to point out that the nomenclature or
title of the Rules appears to be a misnomer. Though it is termed
to be Suspension of Sentence Rules, the rules when considered
and interpreted in its entirety, it neither provides for, nor
prescribes the eligibility criteria for a prisoner to seek for
“suspension of sentence” under this rule. On the other hand,
1982 Rules has been formulated for grant of emergency leave
and ordinary leave only. For the purpose of these leave, the28/57
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026eligibility conditions, the maximum period for which the leave
can be granted and the conditions on which the leave
application should be presented and dealt with, are prescribed
therein.”At first blush, we got the impression that the Division Bench was
labouring a mistaken impression about the import of the expressions
“leave” and “suspension of sentence” as it termed the title of the
Suspension of Sentence Rules, 1982 to be a misnomer. We were,
however, surprised to find the following observations:
“Thus, when the term ‘sentence’ is found predominantly in
Rule 7 and 22 alone, its definition under Rule 2(4) should
only be construed to mean as a sentence that has been finally
fixed on an appeal by a Court of law within the State of Tamil
Nadu, for the purpose of determining the eligibility of a
prisoner to seek for leave under the 1982 Rules.
Consequently, it requires to be held that the definition of the
term ‘sentence’, since not being found in any other rule,
cannot be applied to the term ‘Sentence’ as found in the title
of the Rules, namely, Tamil Nadu Suspension of “Sentence”
Rules, 1982, since the 1982 Rules does not deal with
suspension of sentence, but only for grant of emergency and
ordinary leave.”
31. The Division Bench observes that it could not find any
reference to the term “sentence” in the Rules, and consequently the 1982
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Rules do not deal with suspension of sentence but with only grant of
ordinary or emergency leave. The Division Bench has carried out a hair-
splitting and painstaking analysis of the entire Rules to discover the
meaning of the expression “sentence”. In doing so, they appear to have
looked everywhere except the place most relevant: the preamble to the
Suspension of Sentence Rules, 1982. The preamble reads as follows:
“In exercise of powers conferred by sub-section (5) of
Section 432 of the Code of Criminal Procedure, 1973
(Central Act 2 of 1974) and in supersession of the Rules
published with the Home Department Notification No SRO
No 4236 of 1959……………………., the Governor of Tamil
Nadu hereby makes the following Rules.”
32. Section 432(5) Cr.P.C, it will be recalled, relates to the power
of the Government to issue directions for suspension of sentence by way
of general or special orders. The Suspension of Sentence Rules, 1982 is
therefore, nothing but a subordinate legislation in terms of Section
432(5) providing for ordinary/emergency leave by way of suspension of
sentence. We are constrained to observe that the entire decision in Latha
v. State, supra, rests on a fundamentally erroneous assumption that the
grant of ordinary/emergency leave does not amount to suspension of
sentence in terms of Section 432(5) Cr.P.C. This error permeates the
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entire reasoning and renders it per incuriam on the ground that it runs
counter to the express provisions of the statute and the Rules.
33. We must also note another strange aspect. The Division Bench
in Latha’s case, has disagreed with the Division Bench of this Court in L.
Wasib Khan v. State, 2022 2 CTC 598 (DB), by holding:
“However, the facts of the case in Wasib Khan originates from
the rejection of an application of the prisoner, who sought for
grant of ordinary leave under the provisions of the Tamil
Nadu Suspension of Sentence Rules, 1982. Wasib Khan did
not seek for suspension of sentence in the said case and
therefore, the ratio decidendi in K.M. Nanavati will have no
application to the facts of Wasib Khan‘s case. On the other
hand, the claim for ordinary leave by Wasib Khan requires to
be dealt with in accordance with the provisions of the 1982
Rules only.”
34. We can only express our anguish at these aforesaid
observations which stem from a misunderstanding and misreading of the
nature of the power under Section 432. According to the Division Bench,
the decision in Nanavati had no application since Wasib Khan had
sought only leave and not suspension of sentence. The Division Bench
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unfortunately did not notice that the grant of ordinary leave amounted to
a suspension of sentence in terms of Section 432(5). Once it is shown
that ordinary leave was granted in terms of a Rule framed under Section
432(5) Cr.P.C which contemplates suspension of sentence, the entire
reasoning in Latha’s case collapses to the ground like a pack of cards.
35. Notwithstanding the fact that the decision in Wasib Khan’s
case had been followed by three other Division Benches of this Court in
Alageswari v. Superintendent of Police, 2022 SCC OnLine Mad 8143,
Shanmugavalli v. Superintendent of Police, 2023 SCC Online Mad
5007, and in T. Ramalakshmi v. State, 2023 SCC Online Mad 3203 to
which one of us (K.K Ramakrishnan, J) was a party, the Division Bench
in Latha v. State had proceeded to take a different view contrary to the
decision of the Supreme Court in Nanavati’s case as well as the statutory
provisions and the Rules.
36. In National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16
SCC 680 : a Constitution Bench approved the following observations
made by another two judge bench of the Supreme Court in Sundeep
Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623:
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026“It cannot be overemphasised that the discipline demanded
by a precedent or the disqualification or diminution of a
decision on the application of the per incuriam rule is of
great importance, since without it, certainty of law,
consistency of rulings and comity of courts would become a
costly casualty. A decision or judgment can be per incuriam
any provision in a statute, rule or regulation, which was not
brought to the notice of the court.A decision or judgment can
also be per incuriam if it is not possible to reconcile its ratio
with that of a previously pronounced judgment of a co-equal
or larger Bench; or if the decision of a High Court is not in
consonance with the views of this Court. It must immediately
be clarified that the per incuriam rule is strictly and
correctly applicable to the ratio decidendi and not to obiter
dicta.”
37. It is, thus, apparent that a decision can be said to be per
incuriam when it is (a) made in ignorance of a provision of a statute, rule
or regulation which was not brought to the notice of the Court and (b) if
its ratio cannot be reconciled with the ratio of a previous order of a co-
equal bench. The decision in Latha v. State, is per incuriam on both
counts for it does not notice the preamble to the Suspension of Sentence
Rules 1982 nor does it notice Section 432(5) Cr.P.C and it also ignores
the earlier decisions of co-ordinate Benches as well as a Full Bench of
this Court in Yesu v. State. It has, with all due respect, erroneously
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concluded that the grant of ordinary or emergency leave does not amount
to a suspension of sentence which is directly against the decision of an
earlier Full Bench in Yesu v. State, 2011 2 LW Cri 257 (FB), as discussed
supra. Consequently, we have no hesitation in concluding that the
decision in Latha v. State, is per incuriam.
38. We were informed at the Bar that the decision in Latha, was
doubted and the matter was referred to a Full Bench. We are surprised to
find that the decision in Latha v. State, supra, has obtained the judicial
benediction of a Full Bench of this Court in T. Ramalakshmi v. State,
(2025) 2 MLJ (Cri) 551. When we called for the records, we found that
the only question referred to a Full Bench by a Division Bench on
11.07.2024 in WP (MD) 9491 of 2024 was as follows:
“10. Though we are in full agreement with the view of the
Division Bench in Latha‘s case, we feel that the conflicting
views expressed by some other Division Benches as referred
to above stands in our way to arrive at a firm conclusion on
the issue and thereby, we are constrained to direct the
Registry to place the matter before a larger Bench for its
views on the following aspect:-
“Whether during pendency of the appeal before the High
Court/Special Leave Petition before Apex Court, the prisoner
can be extended the benefit of Ordinary Leave or Emergency
Leave under the Tamil Nadu Suspension of Sentence Rules,34/57
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 20261982 by exercising the powers under Article 226 of the
Constitution of India.”
39. Thus, the Division Bench, it appears, was inclined to follow
Latha’s case, which, as we have already shown was decided on an
erroneous understanding that the grant of ordinary or emergency leave
did not amount to suspension of sentence. Subsequently, when the
reference came up before a Full Bench the learned judges began by
observing:
“The above writ petitions are referred before the larger
Bench, in view of the conflicting views expressed by two
Division Benches of this Court while interpreting Rule 35 of
the Tamil Nadu Suspension of Sentence Rules, 1982,
particularly in W.P.No.10265 of 2021 (L.Wasib Khan v. State
of Tamil Nadu) and in W.P.(MD) No.6398 of 2023 (Latha v.
State of Tamil Nadu), the former declining the grant of
ordinary/emergency leave to the prisoner concerned and the
latter granting the relief sought to the prisoner concerned.”
40. Though a specific question had been referred for its
authoritative decision, the Full Bench decided to suo motu add an
additional question in paragraph 3 which is as follows:
“2) Whether the Tamil Nadu Suspension of Sentence Rules,
1982 as amended by G.O.(MS)No.205, Home (Prison-V)35/57
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026Department dated 25.04.2022 places an embargo on grant of
ordinary leave under Rule 22 as explanation to Rule 22 states
that the period of actual imprisonment shall be counted from
the date of admission to prison as convict and not the date of
arrest and whether the period of incarceration during remand
or during trial could be counted while determining the length
of sentence suffered by the convict?”
41. Having added an additional question the Full Bench,
apparently with a view “to give a quietus to the controversy”, proceeds to
suo motu add two further questions in paragraph 4 which are as follows:
“(3) Whether the Prison Authorities, specifically the Deputy
Inspector General of Prisons or Superintendent of Prisons,
as the case may be, is empowered to grant ordinary leave or
emergency leave to a prisoner during the pendency of an
appeal before the High Court or before the Hon’ble
Supreme Court of India against the judgment of the trial
Court?
(4) Whether the term “Sentence” defined under Rule 2(4) of
the Tamil Nadu Suspension of Sentence Rules, 1982 shall
prevail upon, or whether the competent authorities have to
wait for the final verdict of the appellate Court in the
appeal, even while considering an application made by the
prisoner for grant of ordinary or emergency leave under
Rule 22 of the said Rules?”
42. Somewhere along the way the Full Bench appears to have
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026gratuitously picked up another question, which was neither framed nor
referred, which it then proceeds to suo motu answer under the heading
“SCOPE OF RULE 40 OF THE TAMIL NADU SUSPENSION OF
SENTENCE RULES, 1982”. Thus, what began as a reference emanating
out of a solo question ended up into 4 additional questions being framed
and answered suo motu by the Full Bench which were neither raised nor
referred by the Division Bench or by the Hon’ble Chief Justice.
43. We must now consider the sanctity of the aforesaid practice.
Under the Appellate Side Rules, Order I Rule 4 sets out the bench
strength of a Full Bench, and Order I Rule 5 sets out the matters which
are to be heard by a Full Bench. Order I Rule 7 deals with the powers of
the Full Bench while answering a reference and reads as follows:
“Powers of a Full Bench to answer Reference O. 1 R. 7.-
When a question of law is referred to a Full Bench, the Full
Bench may answer the reference or in its discretion may
finally decide the case itself.”It is settled law that a Full Bench derives its jurisdiction from the order
of reference or from the orders of the Chief Justice. In State of Punjab v.
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026Salil Sabhlok, (2013) 5 SCC 1, it was held that as follows:
“Hence, the Division Bench of the High Court has the
jurisdiction to decide a case, unless otherwise provided by
law or by a special order of the Chief Justice and the
jurisdiction of a Full Bench to decide matters will flow either
from the order of the Chief Justice of the High Court or from
the order of the Division Bench which makes a reference to
the Full Bench.
On a close scrutiny of paras 6 and 7 of the order dated
13-7-2011 [Salil Sabhlokv.Union of India, CWP No. 11846 of
2011, order dated 13-7-2011 (P&H) (DB)] of the Division
Bench of the High Court which are extracted above (in para
32), I find that the Division Bench of the High Court has
referred only specific questions to the Full Bench: how
persons of competence and integrity are to be identified and
selected for appointment as Chairman of the Public Service
Commission and if the procedure adopted for such
appointment in the present case was not valid, the effect
thereof. The Division Bench of the High Court has made it
clear in para 7 of its order dated 13-7-2001 [Salil
Sabhlokv.Union of India, CWP No. 11846 of 2011, order
dated 13-7-2011 (P&H) (DB)] that “these questions need to
be considered by a Bench of three Hon’ble Judges”. I,
therefore, do not agree with Mr Lalit that the Division Bench
referred the entire case to the Full Bench by the order dated
13-7-2011 [Salil Sabhlokv.Union of India, CWP No. 11846 of
2011, order dated 13-7-2011 (P&H) (DB)] . I further find that
although the aforesaid specific questions relating to the
procedure for identifying persons of competence and integrity38/57
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026for appointment as the Chairman of the Public Service
Commission only were referred by the Division Bench of the
High Court, the Full Bench, instead of deciding these specific
questions referred to it, has given directions to the State of
Punjab and the State of Haryana to follow a particular
procedure for appointment of Members and Chairman of the
Public Service Commission till such time a fair, rational,
objective and transparent policy to meet the mandate of
Article 14 of the Constitution is made. I, therefore, agree with
Mr Rao that the Full Bench of the High Court has decided
issues which were not referred to it by the Division Bench of
the High Court and the judgment dated 17-8-2011 [Salil
Sabhlokv.Union of India, CWP No. 11846 of 2011, decided on
17-8-2011 (P&H) (FB)] of the Full Bench of the High Court
was without jurisdiction.”
44. Where a specific question of law is framed and referred to the
Full Bench for its consideration, its jurisdiction is confined to answer
that issue alone save except in cases where any ancillary issue was
required to be addressed so as to aid the Full Bench to answer the main
issue. Order I Rule 7 of the Appellate Side Rules enables the Full Bench
to dispose the main case if it thinks it fit to do so. To answer the question
as to whether the suspension of sentence could be granted under the
Suspension of Sentence Rules, 1982 when an appeal was pending before
the Court, all that was required was the decision of the Supreme Court in
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026Nanavati’s case. Consequently, we are constrained to observe that the
suo motu answers given as regards Rule 35 & Rule 40, which were not
referred either by the Division Bench or by the Hon’ble Chief Justice,
was without jurisdiction in the light of the judgment of the Supreme
Court in State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1.
45. What we find disturbing is the manner in which the reference
was answered without any reference to the relevant material including
the most important decision of the Supreme Court in Nanavati’s case.
The Full Bench has held:
“6. The Tamil Nadu Suspension of Sentence Rules, 1982 was
notified in exercise of the powers conferred by the Sub-
Section (5) of 432 of the Criminal Procedure Code, 1973
(corresponding to Section 473 of the Bharatiya Nagarik
Suraksha Sanhita (BNSS), 2023). Rule 3 stipulates that leave
is not a right. Therefore, no prisoner can claim leave as a
matter of right. Instead, it is a concession granted to the
prisoner in the context of reformation. Consequently, the
competent authorities have to consider the leave application
with reference to the eligibility and by following the due
process as contemplated under the provisions of the Tamil
Nadu Suspension of Sentence Rules, 1982.
7. Thus, we have no hesitation in holding that under Rule 35
of the Tamil Nadu Suspension of Sentence Rules, 1982, the
competent PrisonAuthority is empowered to grant ordinary40/57
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026leave or emergency leave to a prisoner during the pendency
of a criminal appeal before any of the Appellate Courts.”
46. According to the Full Bench, the Division Bench had placed
reliance on certain observations from a judgment of the Supreme Court
in Manokaran v. State of Tamil Nadu (2010) 15 SCC 562 , which had
no bearing on the issue. Unfortunately, the Full Bench does not advert to
the fact that the decision in Wasib Khan does not rest merely on
Manokaran’s case. The main plank of reasoning is the decision in
Nanavati’s case, which had also been reiterated by another Division
Bench of this Court in K.Rajamanickam and Others v. State, 2015 (3)
MWN (Cr.) 379 (DB). We demonstrate this by quoting from the said
decision where the learned judges in Wasib Khan have clearly observed:
“11 Sections 426 and 401 of Cr.P.C. 1898, are in pari
materia with Sections 389 and 432 respectively of Cr.P.C.
1973. The legal principle that has been set out in Nanavati
(supra) is that when the appellate Court has the power to
grant suspension of sentence and bail, pending appeal, the
executive power of the State cannot extend to grant parole
or leave or suspension of sentence. Pertinent it is to state
that the Sentence Suspension Rules has been framed under
Section 432(5) Cr.P.C. Further, in consonance with the law
laid down by the Supreme Court in Nanavati (supra), the
definition of the word “sentence” in Rule 2(4) of the41/57
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026Sentence Suspension Rules has been designed as under:
“(4) “sentence” means a sentence as finally fixed on appeal
or revision or otherwise and includes an aggregate of more
sentence than one. Sentences in default of fine shall not be
taken into consideration while fixing eligibility for being
released on leave.”
(emphasis supplied)It is unfortunate that there is no reference at all in the Full Bench to the
decision of the Constitution Bench decision in Nanavati’s case which
fully answered the issue before it, which view has also been consistently
followed by various High Courts across the country. We cannot approve
creation of a practice of using Article 226 contrary to the law laid down
by the Supreme Court and which is consistently followed in other States
in the country.
47. We are disappointed that the defence lawyers and the
prosecution, for reasons best known to them, failed in their duty to
appraise the Full Bench of the correct position of law based on the
decision of the Constitution Bench in Nanavati’s case. We can only close
our eyes and utter a silent prayer recalling the philosophical words in the
New Testament : “If a blind man leads a blind man, both will fall into a
pit.” Matthew 15:13-14.
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48. Finally, we are also intrigued to note the following
observations:
“19. The Division Bench in the Latha‘s case cited supra
elaborately considered the conflicting views of various
Division Benches of this High Court with reference to Rule 35
of the Tamil Nadu Suspension of Sentence Rules, 1982 and
formed an opinion that the term used in Rule 35 is “Pending
Trial” and not “Pending Appeal”. The object behind
prohibiting a prisoner’s release on leave when a case is
pending trial is to ensure his presence before the competent
Trial Court during the time of trial.”
49. With all due respect, the Division Bench as well as the Full
Bench appears to have completely misunderstood the scope of Rule 35
which merely declares that a prisoner who is facing trial shall be granted
leave. It is elementary that a remand prisoner who is facing trial in a solo
case cannot come within the scope of the Suspension of Sentence Rules,
1982 for at that stage there is no sentence to suspend. This rule would
come into play only when a convict prisoner undergoing imprisonment is
facing trial in another case as was rightly pointed out in
N. Bhuvaneswari v. State of Tamil Nadu, (2016) 5 CTC 504, as under:
“I have no doubt in my mind that the word “prisoner” used
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026in Rule 35 of the Suspension of Sentence Rules can mean
only a convict prisoner, for, remand prisoners are not
governed by the Suspension of Sentence Rules. Remand
prisoners are those who are kept in prison on the orders of
the Court, pending decision on their culpability. At any time,
the Court can release a remand prisoner on bail. That is not
the case with a convict prisoner. As stated above, a convict
prisoner who has exhausted his remedies in the hierarchy of
Courts cannot be released on bail by executive fiat. The
discretion of the executive is governed by the Suspension of
Sentence Rules and the sentence can be suspended only in a
manner set down therein under the Suspension of Sentence
Rules.
During the trial of a person, if he is convicted and sentenced
to undergo imprisonment in another case, pursuant to
which, he is lodged in prison, it is the duty of the State to
inform the Court where he is facing trial, so that the Trial
Court could issue a Prisoner Transfer Warrant under
Section 267, Cr.P.C. Pursuant to the issuance of a Prisoner
Transfer Warrant under Section 267, Cr.P.C., the
Superintendent of Prisons is required to produce the
prisoner before the said Court. If the accused is already on
bail in the trial case, for every hearing date, there will be an
order of the Trial Court under Section 267 Cr.P.C. for
production of the accused. If the bail is cancelled, then, the
accused will be on remand under Section 309, ibid.
26. In the light of Rule 832 of the Tamil Nadu Prison Rules,
a duty is cast upon the Prison authorities to produce
Nagarajan before the II Additional District and Sessions44/57
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026Court, Salem, in S.C. No. 302 of 2015 on all hearing dates.
That is why, Rule 35 of the Suspension of Sentence Rules
uses the expression “trial” and it does not use the
expression “investigation” or “enquiry”. In other words, if
only an FIR is pending against a convict prisoner, Rule 35
will not come into play. Rule 35 will come into play only
when the convict prisoner is facing trial.
27. Rule 35 is intended to ensure that the Executive does not
release a convict prisoner on ordinary leave during the
pendency of trial against him and thus, shirk the
responsibility to produce him before the Trial Court,
irrespective of whether a person is on bail in that case or
not.
28. To put it even simpler, the executive power to release a
convict prisoner on leave, is subject to the responsibility of
the jail authorities to produce him before the Trial Court for
hearings. In the teeth of the legislative interdict under Rule
35 of the Suspension of Sentence Rules, if unbridled power
is given to the Executive to grant leave to a convict prisoner,
ignoring the responsibilities to produce him before the Court
for trial, that may lead to an abuse of executive powers,
which cannot be countenanced.”
50. We are informed that another another Division Bench of N.
Sathish Kumar and M. Jothiraman, JJ have doubted the correctness of the
view taken by the Full Bench and that the matter is referred to a larger
bench by an order dated 19.11.2025. The reference is said to be pending
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
as on date. Be that as it may, when a judgment of the Supreme Court
holds the field, we cannot shirk our constitutional obligation under
Article 141 to apply the law claiming shelter under the judgment of the
Full Bench which is ex-facie contrary to the judgment of the Supreme
Court and the provisions of law.
51. The only question which was referred to the Full Bench having
been answered Constitution Bench Supreme Court in Nanavati v. State
of Bombay, AIR 1960 SC 112, we are obliged and duty bound to apply it.
As far as the other questions framed suo motu by the Full Bench, the
gratuitous answers given therein have no binding force and are without
jurisdiction as was held by the Supreme Court in State of Punjab v. Salil
Sabhlok, (2013) 5 SCC 1.
52. That apart, the affirmation of a per incuriam decision of the
Division Bench in Latha’s case does not improve the case since it is now
well settled that a per incuriam decision which follows or approves a per
incuriam decision is also per incuriam as was held by the Supreme Court
in Hindustan Construction Co. Ltd. v. Union of India, (2020) 17 SCC
324. It was observed therein as follows:
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026“The fact that Nalco [National Aluminium Co. Ltd. v.
Pressteel& Fabrications (P) Ltd., (2004) 1 SCC 540] has
been followed in National Buildings Construction Corpn.
Ltd. v. Lloyds Insulation (India) Ltd. [National Buildings
Construction Corpn. Ltd. v. Lloyds Insulation (India) Ltd.,
(2005) 2 SCC 367] does not take us any further, as National
Buildings Construction Corpn. Ltd. in following Nalco, a per
incuriam judgment, also does not state the law correctly.”CAN A MANDAMUS BE ISSUED CONTRARY TO THE RULES?
53. The next question is whether a mandamus can be issued
contrary to the disqualifications prescribed under the Rules. Rule 21, as
already noticed, prescribes the non-eligibility criteria for ordinary leave.
54. We have already noticed that the Suspension of Sentence
Rules, 1982 is not merely an executive instruction having no binding
effect but has been framed in exercise of statutory power under Section
432(5). It is a subordinate legislation which, as pointed out by the
Supreme Court in Udai Singh Dagar v. Union of India, (2007) 10 SCC
306, “when validly framed, becomes a part of the Act.” Thus, the
Suspension of Sentence Rules, 1982 must be read as a part and parcel of
Section 432(5) itself.
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
55. The question now is whether Article 226 can be issued to direct
the Government to grant ordinary leave when there exists a bar under
Rule 21 of the Rules. In other words, can a mandamus be issued to direct
the Government to grant ordinary leave by restraining them from
enforcing or giving effect to the bar under Rule 21 ? In State of U.P v.
Harish Chandra, (1996) 9 SCC 309 it was held:
“10……Under the Constitution a mandamus can be issued by
the Court when the applicant establishes that
hehttp://www.judis.nic.inhas a legal right to the
performance of legal duty by the party against whom the
mandamus is sought and said right was subsisting on the
date of the petition. The duty that may be enjoined by
mandamus may be one imposed by the Constitution or a
Statute or by Rules or orders having the force of law. But no
mandamus can be issued to direct the Government to refrain
from enforcing the provisions of law or to do something
which is contrary to law.”
56. The position must now be taken to be settled by the Supreme
Court in State of W.B. v. Subhas Kumar Chatterjee, (2010) 11 SCC 694,
wherein it was held:
“Neither the Government can act contrary to the rules nor the
court can direct the Government to act contrary to rules. No
mandamus lies for issuing directions to a Government to
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026mandamus directing the authorities to act in contravention of
the rules as it would amount to compelling the authorities to
violate law. Such directions may result in destruction of rule
of law.”
57. Similarly in Chingleput Bottlers v. Majestic Bottling Co.,
(1984) 3 SCC 258 it was held that no mandamus will lie to compel the
performance by such public body or authority of an act contrary to law.
58. Notwithstanding the aforesaid decisions, we find that various
Division Benches have taken the view that the Suspension of Sentence
Rules, 1982 are merely administrative guidelines and do not bar the
powers of the Court under Article 226. We regret our inability to agree as
these decisions appear to proceed on a misunderstanding of the scope
and quality of a subordinate legislation. For instance, in Chithra v. State,
the Division Bench has observed:
“Reverting to the case on hand, said Rules is not even a
Statute, it is a Subordinate Legislation made under Rule
making powers vested with the Executive under Section
432(5) of Cr.PC and this Subordinate Legislation has not
gone through legislative grind of law making in the
Legislature. Therefore, this piece of Subordinate Legislation
is only a codified guideline for the Executive to deal with
requests for leave from prisoners and it cannot abridge49/57
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026Constitutional powers which this Court is exercising. At the
risk of repetition, we reiterate that a prisoner and his
fundamental rights do not part ways at the prison gates. To
put it in a nutshell, Subordinate Legislation cannot denude
nay not even abridge Constitutional powers.”
59. We must respectfully point out that a subordinate legislation
made under Section 432(5) cannot be cast aside on the ground that it is a
“codified guideline” on the basis that such a rule cannot abridge the
constitutional powers of the Court. As was held in Nisha Priya Bhatia v.
Union of India, (2020) 13 SCC 56, the expression “law” in Article 13
includes a statutory rule. Consequently, the constitutional powers of a
High Court can be exercised only to aid the enforcement of law and not
to subvert it. In State of Bihar v. Arvind Kumar, (2012) 12 SCC 395, the
Supreme Court has made this position clear by observing that no court
has competence to issue a direction contrary to law nor can the court
direct an authority to act in contravention of the statutory provisions or
rules.
60. In Yasmin v. Deputy Inspector General of Prisons, WP 11130
of 2025, by an order dated 03.07.2025, another Division Bench has taken
the view that the bar for the grant of leave to a convict prisoner
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
undergoing sentence for a conviction under the NDPS Act, need not be
applied and that ordinary leave can be granted de-hors the express bar
under the Suspension of Sentence Rules, 1982. The Division Bench
appears to have drawn inspiration from Dadu v. State of Maharashtra,
(2000) 8 SCC 437, which involved a challenge to the provisions of
Section 32-A of the NDPS Act. It should be noted that the vires of Rule
22(h)(3) was not in issue before the Division Bench. However, it was
observed:
“By applying the ratio laid down in Dadu‘s case (supra), we
are of the view that Rule 21(h)(3) also creates an
unreasonable distinction between the prisoners under the
NDPS Act and the prisoners of other statutes. In this
background, we recommend to the Government of Tamil
Nadu for considering the amendment of Rule 21(h)(3) of the
TNSOS Rules, in the light of the ratio decidendi in Dadu’s
case (supra).”
61. While it is always open to the Government to amend a rule, we
are of the opinion that the Courts cannot refuse to give effect to such rule
till such time it continues to remain in the statute book prescribed by law.
62. We must also point out that Rule 3 of the TN Suspension of
Sentence Rules, 1982 makes it clear that the grant of leave is not a right
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
but is a concession. The expression “concession” in the context of a right
of a convict prisoner has been considered by a Division Bench of the
Bombay High Court in National Alliance v. State of Maharashtra, 2020
SCC OnLine Bom 843:
“Concession, in legal parlance, is a Government grant for
specific privileges. It is, thus, a form of privilege. An
exemption is a concession allowed to a class or individual
from general burden for valid and justifiable reason. It is a
freedom from an obligation which the class or individual
exempted is otherwise liable to discharge. Exemption is also a
form of privilege. The terms are capable of being used
interchangeably. Privilege, concession, exemption, by
whatever name one calls it, are generally advantages or
benefits specially made available to a class, and not to others,
in given situations and for valid reasons. Law is well settled
that the recipient of a privilege, concession or exemption has
no legally enforceable right against the Government except to
enjoy the benefits during the period of its grant. This right to
enjoy is defeasible, in the sense that it is not independent of
any contingency and may be taken away in exercise of the
very power under which the privilege, concession or the
exemption were granted.”The aforesaid order was upheld by the Supreme Court in National
Alliance for People’s Movements v. State of Maharashtra, (2020) 9
SCC 698.
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
63. Once it is held that the grant of leave is a concession/privilege,
it must necessarily follow that a writ of mandamus will not lie to enforce
a privilege. We are fortified in taking this view in the light of the earliest
Division Bench decision of this Court in Saleema v. State, 2021 SCC
Online Mad 206, wherein it was held as follows:
“Rule 3, ibid. reads as under :
“3. Leave is not a right – Leave cannot be claimed as a matter
of right. It is a concession granted to the prisoner.”
It is, therefore, limpid that leave under the T.N. Suspension of
Sentence Rules is discretionary in nature and cannot be
claimed as a matter of right. It is a privilege granted in the
form of a concession. Though the prayers in these petitions
are couched in the form of habeas corpus, in substance, they
seek a direction by way of a mandamus to the authorities to
release the convict prisoners on leave. However, it is settled
law that in the absence of a legal right, a writ of mandamus
will not lie to compel the exercise of discretion to grant a
concession/privilege. In State of Rajasthan and another v.
J.K.Udaipur Udyog Ltd. and another, the Supreme Court held
as under:
“25. … The recipient of a concession has no legally
enforceable right against the Government to grant of a
concession except to enjoy the benefits of the concession
during the period of its grant. This right to enjoy is a
defeasible one in the sense that it may be taken away in
exercise of the very power under which the exemption was
granted.”
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
13 In IOCL and another v. Kerala State Road Trading
Corporation and others, it was observed thus:
“15.Firstly, coming to the issue of the policy framed by the
Government of India; the grant of subsidy is a matter of
privilege, to be extended by the Government. It cannot be
claimed as of right. No writ lies for extending or continuing
the benefit of privilege in the form of concession.”
64. Applying the law laid down in Sundeep Kumar Bafna v. State
of Maharashtra, (2014) 16 SCC 623, we hold that we are bound by the
earlier Division Bench decision in Saleema v. State, 2021 SCC Online
Mad 206, in preference to the latter decisions which take a different view.
We, therefore, hold and declare that no mandamus can be issued to grant
ordinary leave by circumventing the disqualifications prescribed in Rule
21 of the Tamil Nadu Suspension of Sentence Rules, 1982.
65. In so far as the petitioners in W.P.(MD) No. 1752 of 2026, W.P.
(MD) No.2331 of 2026 and W.P.(MD) No.2313 of 2026 are concerned,
their cases are squarely covered by the bar under Rule 21(h)(3) of the
Tamil Nadu Suspension of Sentence Rules, 1982. In the other case, the
petitioner in W.P.(MD) No.1981 of 2026 convicted for offence under
Section 396 of IPC and there is a bar under Rule 21(b) of the Rules.
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
Consequently, no mandamus can be issued to grant ordinary leave to the
convict prisoners in the teeth of the bar contained in the Rules.
66. In the result, the petitions fail and will accordingly stand
dismissed.
[N.A.V., J.] [K.K.R.K., J.]
28.04.2026
Index : Yes
Internet : Yes
Neutral Citation : Yes
PKN
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
To
1. The Deputy Inspector General of Prisons,
Prisons and Correctional Services Department,
Madurai Range, Madurai.
2. The Superintendent of Prison,
Central Prison, Madurai.
3. The Superintendent of Police,
Ramanathapuram District.
4. The Inspector of Police,
Kenikarai Police Station,
Ramanathapuram District.
5. The Home Secretary,
Home Department (Prison),
Secretariat, Fort St.George,
Chennai – 600 009.
6. The Superintendent of Police,
Central Prison, Palayamkottai – 627 007.
7. The Inspector of Police,
Thachanalur Police Station,
Tirunelveli District.
8. The State Rep. by its
Deputy Inspector General of Prisons,
Egmore, Chennai – 600 008.
9. The Superintendent of Police,
Special Prison for women (conviction),
Madurai.
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W.P.Crl.(MD)Nos.1752, 1981, 2313 and 2331 of 2026
N.ANAND VENKATESH, J.
AND
K.K.RAMAKRISHNAN, J.
PKN
Judgment made in
W.P.(Crl.) (MD) Nos.1752, 1981, 2313 and 2331 of 2026
28.04.2026
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