MASILAMANI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This petition under section 482 of the Code of Criminal Procedure has been filed by the petitioner-accused who is undergoing imprisonment. He was convicted by the Sessions Judge, South Arcot District at Cuddalore in S.C. No. 102 of 1974, along with ten others, for an offence under section 302 read with section 34, Indian Penal Code and they were sentenced to undergo imprisonment for life on 412.1974. The same was confirmed by the High Court in the appeal filed by the petitioner. The petitioner would state that he is a holder of M.A Degree from Annamalai University and is now doing M.A. Political Science, He commands high respect in the Central Prison and secured several prizes and marks and special remissions to his credit. His wife Mrs. Mallika, who has filed an affidavit in support of the petition, is a practising advocate of this Court and the petitioner has got a daughter through her. It is seen from the affidavit filed by his wife that the petitioner has already served 12-1/2 years of imprisonment and has earned a special remission of 4 years in the Central Prison, Vellore Their Lord ships of the Supreme Court in W.P. No. 286 of 1986 passed an order on 16.10.1986 as follows; The learned counsel appearing on behalf of the State - Respondent states that the case of the petitioner for premature release will be considered within a period of three months. We hope and trust that the case will be properly reconsidered. In view of this statement made on behalf of the respondent, this writ petition is disposed of. In the meantime, it is submitted by the petitioner that the mother of the petitioner by name Yasodhai Ammal was admitted in the Thillai Nursing Home, East Car Street, Chidambaram and Dr. Krishnamurthi is treating on her end that her condition is precarious and the presence of the petitioner on her side is very much needed during the last days of her life, that she is now aged 65 years and that her health is impaired only on account of the petitioners confinement in jail. It is further stated that the petitioner was also released on parole on prior occasions and he complied with the rules of parole. In the additional-affidavit filed by her, it is stated that the petitioner's brother Padmanabhan working as Branch Post Master at Adivarahanallur, Chidambaram Taluk, is admitted in the lipmer Hospital, Pondicherry. He is seriously suffering from Cirrhosis of liver and his condition is also precarious and that he is the only brother of the petitioner. Hence in the circumstances it is prayed for a direction to release the petitioner on parole for a period of one month.

(2.) Learned Government Advocate for the respondent submitted that this petition is not maintainable as premature and that the petitioner has to only move the Government under section 432, Cr. P.C. to suspend the sentence for proper reasons.

(3.) In support of the allegations stated in the affidavit filed by the wife of the petitioner, she has also produced the medical certificate from Dr. Krishnamurthi. M.B. B.S., Thillai Nursing Home. East Car Street, Chidambaram, to the effect that the petitioners mother Yasodbai Ammal is suffering from severe chest pain and she Is seriously ill on account of heart attack and that she is undergoing medical treatment as an In-patient in his hospital, namely, Thillai Nursing Home, from 17.11.86. She has also produced a photostat copy of the case-sheet regarding the nature of the illness of the petitionerTs brother Padmanabhan, who was admitted in the Jipmer Hospital, Pondicherry, on 27.11.86 for the complaint of cirrhosis of liver. Learned counsel for the petitioner drew my attention to the decision of this Court reported in Ramakrishnan v. The -State of Tamil Nadu wherein Natarajan, J. held as follows: Held: this is a case where the High Court can well exercise its Rowers under section 482, Cr1. P.C., and grant parole and suspension of sentence to the petitioner for a period of 15 days. The leave asked for is of an emergent nature. In such circumstances, routine factors which have normally to be taken note of before granting leave cannot have any part to play. In extraordinary situations, the Courts should relegate technical and procedural matters to the background and take human factors into consideration and give relief to the parties within the bounds of law. Otherwise the functioning of Courts would be only as Courts of Jaw and not as Courts of justice. The words to secure the ends of justice occurring in section 482, Cr1. P.C. have real meaning and content in them and hence the High Court is bound to exercise its inherent powers on all such occasions when it deems it its duty to do so. Though the opinion given by the Probation Officer in his report was that the grant of leave to the petitioner may prove a hazard to public peace and safety and that his return to the village even on short leave, will not be welcomed by the villagers there is no tangible material to show that the suspension of sentence is fraught with danger to peace and tranquility. The other cc accused of the petitioner who have also been awarded life sentences have been granted parole by the Government. Therefore, the Court may overrule the objections raised by the Government for granting relief to the petitioner and direct that there will be suspension of sentence and grant of parole to the petitioner for a period of two weeks and that the petitioner win surrender himself back to prison custody. The said decision was also relied on by a Division Bench of this Court in M. Kandasamy v. State2. In that case it was held: Having regard to the fact that the petitioner had been granted parole on an earlier occasion in the year 1978 and to the averments made in his affidavit that his father is bedridden and to the fact that a considerable delay has been caused in passing an order other way by the Government due to the non-receipt of the report from the Probation Officer and to the fact that any parole that is granted after the lifetime of the petitioners father would not be of any use to him, we feel that the circumstances In this case do warrant granting of parole to the petitioner on humanitarian grounds. Consequently, parole was granted for 30 days in the above quoted case. The learned counsel also drew my attention to the order of this Court in Chinnasamy alias Thimmakali v. State3 wherein a life-convict was granted parole for one month from 6.10.1986 10 6 11.1986 and subsequently the same was extended by another week, by me, in Cr1. M.Ps. Nos. 11031 and 11032 of 1986.