Justice N Sathish Kumar and Justice M Jothiraman held that once the sentencing part is over, the convict is not in the custody of the court and cannot be granted interim bail using the court’s power under Article 226 of the Constitution. The bench

[20/11, 19:40] Sekarreporter: https://www.livelaw.in/high-court/madras-high-court/madras-high-court-no-interim-bail-under-art-226-premature-release-request-pending-government-310627
[20/11, 19:40] Sekarreporter: The Madras High Court recently held that the high courts could not exercise their power under Article 226 of the Constitution to grant interim bail to a convict while their request for premature release was pending consideration before the appropriate government.

The bench of Justice N Sathish Kumar and Justice M Jothiraman held that once the sentencing part is over, the convict is not in the custody of the court and cannot be granted interim bail using the court’s power under Article 226 of the Constitution. The bench added that the convicts would be entitled to suspension of sentence as provided under Tamil Nadu Suspension of Sentence Rules 1982.

“ Therefore, we are of the view that, since the accused/convict is not in the custody of the Court and the sentencing part is already over, merely because the request for premature release is pending consideration before the appropriate Government, interim bail cannot be granted to the accused/convict by this Court by exercising its power under Article 226 of the Constitution of India. At the most, the convicts are entitled to suspension of sentence as provided under the Tamil Nadu Suspension of Sentence Rules, 1982,” the court said.
The court was hearing a batch of pleas by convicts seeking a direction to the government to release them prematurely by considering their representations. Another set of pleas was filed to extend the interim bail/leave granted to the convict prisoners pending consideration of the representation before the government.

The convicts were granted interim bail by a division bench in a plea challenging the order rejecting their request for premature release. The petitioners argued that the courts had been granting interim bails in many similar matters which were being extended from time t time and therefore now, a different view could not be taken.

The Additional Public Prosecutor informed the court that the matters were pending consideration before the Government and that the Government had expressed a No Objection for grant of bail.

The amicus informed the court that the prisoners are entitled to be temporarily released only as per the Suspension of Sentence Rules, and only the Government could exempt any or all of the provisions of the Rules. It was submitted that without invoking the power of exemption, burdening the court to grant interim bail by stating ‘no objection’ was not proper in law.

The court observed that once an order of conviction and sentence attains finality, the accused is committed to prison and the court ceases to have the custody either actual or constructive over him. The court added that after conviction, when the sentence reaches finality and the accused is sent to jail to serve the sentence imposed on him, any release thereafter would be governed by Section 432 CrPC or Section 473 BNSS, dealing with the provisions regarding execution, suspension, remission and commutation of sentences.

The court remarked that, as per the settled position of law, it could not issue a mandamus compelling the State to grant premature release to a convict as the convict has a limited right to have his case considered. The court added that a convict could always challenge the order of refusal of premature release before the High Court under Article 226 of the Constitution.

“ From the above judgments, the law is well settled that the High Courts cannot exercise power under Article 226 of the Constitution of India to direct premature release of a prisoner. The prisoner has a limited right to seek a direction to have his case considered in terms of the policy. However, if he is unsuccessful, he may challenge the decision under Article 226 of the Constitution in a manner known to law,” the court said.
With respect to granting interim bail while consideration of a premature release request was pending, the court emphasised that a convict prisoner was not in the custody of the court and there was no question of granting bail, let alone interim bail. The court added that the power to remit and suspend the execution of the sentence was exclusively with the Government and not the court.

In the present case, the court noted that if the Government, while giving no objection to the release of convicts, was really of the view that the accused/convicts are entitled to temporary release, the Government should have used its powers under Rule 40 of the Tamil Nadu Suspension of Sentence Rules to exempt them. The court added that the Government’s conduct in not using its powers and instead giving no objection to the courts to release the prisoners was “shirking” responsibility rather than addressing the grievance of prisoners.

“ If the Government is benevolent enough in giving “No Objection” for grant of interim bail before this Court, the Government, if is really of the view that the accused/convict prisoners are entitled to temporary release, having retained their power under Rule 40 of the Tamil Nadu Suspension of Sentence Rules, 1982, to exempt any or all the provisions of the Suspension of Sentence Rules, may invoke such power and exempt any or all the provisions in favour of any accused/convicts, taking note of their eligibility, and grant temporary release for any period as they decide. Instead of doing so, the Government, by allowing the prisoners to stay outside by just giving “No objection” before this Court to grant interim bail, in the view of this Court, is in fact, shirking its responsibility rather than addressing the grievance of the prisoners,” the court said.
The court thus, while dismissing the pleas, directed the State to consider the representations of the petitioners for premature release and pass orders as per law within 3 months. The court also directed the registry not to number any writ petitions seeking interim bail/leave or extension of interim bail/leave when the matter is pending consideration before the appropriate government.

Amicus Curiae: Mr. R. John Sathyan Senior Counsel

Counsel for Petitioners: Mr. M. Mohamed Saifulla, Mr. S. Manoharan

Counsel for Respondents: Mr. E. Raj Thilak Additional Public Prosecutor

Case Title: Zubaitha Begum v. The State and Others

Citation: 2025 LiveLaw (Mad) 430

Case No: W.P.No.30216 of 2024, etc. batch