No bar for granting leave to convicts pending appeals against their conviction, orders five-judge Larger Bench of Madras High Court

A five-judge Larger Bench of the Madras High Court — comprising Chief Justice S.A. Dharmadhikari, Justice C.V. Karthikeyan, Justice A.D. Jagadish Chandira, J...

What Happened

A five-judge Larger Bench of the Madras High Court — comprising Chief Justice S.A. Dharmadhikari, Justice C.V. Karthikeyan, Justice A.D. Jagadish Chandira, Justice M. Nirmal Kumar, and Justice Sunder Mohan — ruled that there is no absolute bar to granting ordinary or emergency leave to convicted prisoners whose criminal appeals are still pending before the court.
The interim order was passed pending final determination of a connected case before the Supreme Court and the reference made to the Larger Bench by a Division Bench of two judges.
The question before the bench was whether a prisoner serving a sentence of imprisonment can be granted ordinary or emergency leave during the pendency of a criminal appeal — a question on which different benches had taken different views, necessitating a larger bench reference.
The ruling clarifies the discretionary power of High Courts to grant leave to convicts, a question that sits at the intersection of prison administration, appellate rights, and the right to personal liberty under Article 21.

Static Topic Bridges

Section 389 of the Code of Criminal Procedure, 1973 (CrPC) — Suspension of Sentence Pending Appeal

Section 389 of the CrPC (now mirrored under the Bharatiya Nagarik Suraksha Sanhita, 2023) empowers an Appellate Court to suspend the execution of a sentence pending the appeal and, if the convicted person is in confinement, to release them on bail or on their own bond. The Supreme Court has held that suspension of sentence under Section 389 requires the Appellate Court to consider whether the case presents fair chances of acquittal — it is not automatic. For convicts sentenced to life imprisonment, death, or imprisonment of not less than 10 years, the prosecution must be heard before the appellate court grants suspension. Section 389 deals with bail pending appeal (suspension of sentence), which is distinct from the question of leave for a person serving a sentence while an appeal is pending.

Suspension of sentence under Section 389 means the convict is released during the appeal's pendency — the sentence is stayed.
Leave from prison (ordinary or emergency) is different: the convict remains convicted and sentenced but is temporarily permitted to leave the prison for a specified purpose and duration.
Emergency leave is typically granted for serious family events (death, critical illness of a close relative).
Ordinary leave (furlough) is granted for rehabilitation and maintaining family ties, typically subject to a minimum period of imprisonment served.

Connection to this news: The Madras HC ruling distinguishes between suspension of sentence (which terminates incarceration pending appeal) and grant of leave (which is a temporary, conditional release). The court held that a pending criminal appeal does not automatically disentitle a convict from applying for leave — two distinct legal remedies serving different purposes.

Prisoners' Rights and Article 21 — Constitutional Dimension

The Supreme Court has consistently held that the right to life and personal liberty guaranteed by Article 21 does not cease upon conviction and incarceration. Prisoners retain residual fundamental rights except those that are necessarily curtailed by the fact of lawful imprisonment. In Sunil Batra v. Delhi Administration (1978), the Supreme Court held that the Constitution follows the prisoner into jail; in Charles Sobraj v. Superintendent, Central Jail (1978), it was held that prisoners are entitled to all fundamental rights except those that cannot be exercised in prison. The right to humane conditions of detention, to be treated with dignity, and to not be subjected to arbitrary or excessive restrictions on liberty within prison is constitutionally protected.

The right to furlough and parole flows from State Prison Acts and Prison Rules — each state has its own rules governing eligibility, duration, and conditions.
Courts have held that denial of parole or leave must be based on objective reasons, not arbitrary administrative discretion.
A convict whose criminal appeal is pending is technically still a convicted person (unlike an undertrial, who is presumed innocent). However, the pendency of an appeal is a legally significant factor that courts may consider in humanitarian or procedural matters.
The Prisons Act, 1894 — a colonial-era statute — governs prison administration; many states have their own Prison Acts or Rules that supplement it.

Connection to this news: The Madras HC ruling reinforces the constitutional position that conviction does not extinguish all rights; courts retain jurisdiction to consider a convict's request for temporary leave even while an appeal questioning that very conviction is pending.

Appellate Jurisdiction of High Courts in Criminal Matters

Under the CrPC (now BNSS, 2023), the High Court exercises appellate jurisdiction over convictions by Sessions Courts and certain Magistrate Courts. The High Court can, in an appeal, acquit, reduce the sentence, alter the nature of the sentence, or even enhance the sentence (in appeals by the State or on reference). A pending criminal appeal does not stay the sentence unless the High Court specifically orders suspension under Section 389. The convict therefore serves the sentence while the appeal is pending, which can span several years given judicial backlog.

A five-judge or Larger Bench is constituted when there is a conflict between smaller benches of the same High Court, when a question of law of general public importance arises, or when a reference is made by a Division Bench.
The Larger Bench's ruling on a question of law binds all smaller benches of the same High Court.
The Supreme Court may also take up the connected question, as indicated by the fact that the HC bench passed only an interim order pending the Supreme Court's final determination.
Under Article 226 and 227 of the Constitution, the High Court also has supervisory and writ jurisdiction over matters involving fundamental rights, including Article 21 rights of prisoners.

Connection to this news: The reference to a five-judge bench signals that this is not a routine matter — it involves a genuine conflict in judicial opinion within the High Court on a question that affects many convicted prisoners serving sentences while their appeals remain pending, often for years.

Key Facts & Data

The five-judge bench: Chief Justice S.A. Dharmadhikari, Justice C.V. Karthikeyan, Justice A.D. Jagadish Chandira, Justice M. Nirmal Kumar, Justice Sunder Mohan.
The ruling was passed as an interim order pending connected Supreme Court proceedings and final bench determination.
Section 389 CrPC (mirrored in BNSS 2023) governs suspension of sentence pending appeal — distinct from leave from prison.
Sunil Batra v. Delhi Administration (1978): Constitution follows prisoners into jail; they retain Article 21 rights.
The Prisons Act, 1894 and State Prison Rules govern parole and furlough eligibility across states.
India's prison system faces severe undertrial and appeal-pendency backlogs — making the question of convict leave during appeal a widely applicable practical issue.
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 replaced the CrPC with effect from July 1, 2024.