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. 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.]

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) 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,
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 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

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), : Petitioner (s)
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
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 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. 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 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);
· 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 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.
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.
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 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 and revision”. 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 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 be exercised while the court is seized of the same matter under 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 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 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 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 the
play 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 the time 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 clear the person from all infamy and from all consequences of 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 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 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, the 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 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
in 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.”
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, the eligibility 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 Rules do not deal with suspension of sentence but with only grant of ordinary or emergency leave. The Division Bench has carried out a hairsplitting 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 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 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:
“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 coequal 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 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, 1982 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)
Department 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 gratuitously 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.
Salil 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 integrity for 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 Nanavati’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 SubSection (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 ordinary leave 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 the Sentence 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.
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
in 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 Sessions Court, 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 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:
“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.
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 refrain from enforcing a provision of law. No court can issue mandamus 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 abridge Constitutional 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 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 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.
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.”
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.
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 
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 itsDeputy Inspector General of Prisons, Egmore, Chennai – 600 008.
9. The Superintendent of Police,Special Prison for women (conviction), Madurai.
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