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Convict prisoner not in court custody, only govt can order premature release, says Madras HC
Convict prisoner not in court custody, only govt can order premature release, says Madras HC
Chennai, The Madras High Court has held that premature release of convict prisoners has to be considered by the government and it cannot be sought as a matter of right in the court and when the sentencing part was over, the court ceases to have the custody of the convict and hence, bail or interim bail cannot be sought in court.
A division bench comprising Justices N Satish Kumar and M Jothiraman gave the ruling while dismissing a batch of petitions on November 19, from Zubaitha Begum and 12 others, which sought to release their respective relatives on interim bail while their premature release petitions were pending before the government.
The bench said, "A convict prisoner serving sentence is not in the custody of the court. Consequently, the question of granting bail, let alone interim bail, does not arise".
The court said, "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".
In the present cases on hand, the petitioners seek remission of sentence and premature release of the convict prisoners, which has to be considered by the appropriate government by considering various factors. Therefore, as a matter of right, premature release cannot be sought before this court. As already held, when the sentencing part was already over and the court ceased to have the custody of the accused/convict, bail or interim bail cannot be sought before this court.
The bench said as the Full Bench of this Court in Yesu's case, has clearly held that, it was the government that can exercise its discretionary power under Rule 40 of the Suspension of Sentence Rules to exempt any or all the provisions under the Rule, it was high time for the government to exercise such power in deserving cases to grant temporary release or suspension of sentence for any period of time to the convict prisoners undergoing sentence instead of relegating the matters to the Court for grant of interim bail, as "we have already held that power to grant interim bail after sentencing part is over, is not with the Court".
The bench said, "In view of the above discussion, we are of the view that the miscellaneous petitions or writ petitions seeking interim bail/leave or extension of interim bail/leave before this Court by invoking its jurisdiction under Article 226 of the Constitution of India, particularly when the matter is pending consideration before the government for premature release of the convict prisoner, are not maintainable".
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