SALEEMA Vs. STATE

JUDGEMENT

(1.) The petitioners in these cases are the relatives of convict prisoners/convict prisoners themselves undergoing various terms of imprisonment in the prisons that fall within the territorial jurisdiction of the Principal Seat of this Court at Madras. The petitioners seek writs of habeas corpus for the grant of ordinary leave to such convict prisoners. In view of the commonality of the issues involved and the reliefs sought, these petitions are decided by this common order.

(2.) At the outset, it is not in dispute that none of these cases relates to any complaint of unlawful detention which is the sine qua non for maintaining a petition for habeas corpus under Article 226 of the Constitution of India. The celebrated writ of habeas corpus, alluded to as the "great constitutional privilege" and "the first security of civil liberty", is a swift and effective remedy against illegal detention. Equally, where the detention is pursuant to an order passed by a court of competent jurisdiction, a petition for habeas corpus cannot lie. In Col.B.Ramachandra Rao (Dr.) v. State of Orissa and others , 1972 3 SCC 256 the Supreme Court observed as under:

(3.) When this Court posed a question to the learned counsel for the petitioners as to how a habeas corpus petition would lie for the grant of parole/ordinary leave when the detention, per se, is not illegal as the convict prisoners are undergoing their respective sentences that have been passed by Courts of competent jurisdiction, they stated in unison that earlier Division Benches have been entertaining such petitions and granting reliefs of ordinary/emergency leave to convict prisoners in exercise of powers under Article 226 of the Constitution of India. The learned counsel also placed strong reliance on the judgment of the Supreme Court in Sunil Batra II vs. Delhi Administration , 1980 3 SCC 488 and submitted that the prisoners are not denuded of their fundamental right guaranteed under Article 21 of the Constitution of India and therefore, this Court has the power under Article 226 of the Constitution of India to grant the relief prayed in the petitions. The learned counsel further submitted that Rule 20 of the Tamil Nadu Suspension of Sentence Rules, 1982, provides for grant of ordinary leave, for any other extraordinary reasons and under Rule 36, ibid., the leave period will be excluded from the period of sentence and therefore, no prejudice would be caused to the State, if the prisoner is granted leave. They further submitted that under the T.N.Suspension of Sentence Rules, there is no provision for grant of leave if a close friend dies and under such circumstances, the prisoner has no other alternative, but to approach this Court under Article 226 of the Constitution of India.