Grant Temporary Leave To Undertrials To Attend Relative's Funeral Without Forcing Them To Approach Court For Interim Bail: Madras HC To State

“The Principal Secretary to Government, Home Department (Prison), Government of Tamil Nadu, Fort St. George, Chennai and the Director General of Prisons and Correctional Services, Chennai are directed to grant temporary permissions to the under trial prisoners lodged in the prisons across the State of Tamil Nadu to attend the burial/funeral of their close relatives (as defined under the Tamil Nadu Suspension of Sentence Rules, 1982) without forcing them to get an interim bail from the Trial Court or High Court,” the court said.

The bench of Justice SM Subramaniam and Justice K Rajasekar asked the Principal Secretary to issue necessary circulars to all prison authorities communicating the order, enabling them to act accordingly. The court said that the temporary permission could be granted by the Director General of Prisons and Correctional Services or the Inspector General of Prisons and Correctional Services or the Superintendent of Police as the case may be.

The court passed the directions after noting that the judicial process was causing great hardship to the undertrial prisoners, especially those belonging to economically weaker sections who often found it difficult to arrange for interim bail or secure permission from the High Court in a short time to attend the funeral of their close ones.

The court added that when the prison authorities themselves were granting leave to the convicted prisoners to attend burial/funeral, forcing the undertrial prisoners to approach the competent authorities would amount to discrimination. The court added that undertrial prisoners were on a higher footing as they were yet to be convicted and they need not be deprived of their rights.

“When the Suspension of Sentence Rules provides granting leave to the convicted prisoners, under trial prisoners are standing in a higher footing. They are not yet convicted and presumed to be innocent. While so, their basic rights need not be taken away and this Court is of the considered opinion that the depriving the under trial prisoners to secure permission from the hands of the competent authorities amounts to discrimination, since the Prison Authorities themselves granting leave to attend the burial/funeral for the convicted prisoners,” the court said.

The court also noted that there were many practical difficulties on forcing the undertrial prisoner to approach the courts. The court remarked that during holidays, the court would have to constitute special bench to grant permission to the undertrial prisoner. The court also noted that on many occasions, the undertrial prisoner may not be able to secure such permission due to various reasons, infringing his basic right.

The court was hearing the petition filed by the sister of an undertrial detenu, who was charged with offence under the Unlawful Activities Prevention Act (UAPA). The detenu's mother passed away on 18^th April 2025. Though this information was provided to the jail authorities, the sister had to approach the court since the power to grant leave was applicable only to convicted prisoner.

Emphasising that attending a loved one's burial was a fundamental right, the court added that this right does not differentiate between the categories of prisoners and was rooted in humane treatment and inherent dignity as a human being. The court also observed that granting temporary leave to prisoners to attend the funeral of their loved ones was not against the aim of incarceration but was an affirmation that prisoners continued to remain members of the society to which they would return after their sentence.

“Granting temporary permission to prisoners to attend burials, funerals or even deathbed visits is not contrary to the aims of incarceration. Rather, it is an affirmation that prisoners or the detained persons remain members of that community to which they anticipate to return at the end of their sentences,” the court said.

Thus, to protect the rights of the undertrial prisoners, the court impleaded the Government and issued the directions. The court also directed the DGP to permit the detenu to attend his mother's burial by granting temporary permission with security.

Counsel for the Petitioner: Mr. A. Rajamohamed

Counsel for the Respondent: Mr. R. Muniyappa Raj Additional Public Prosecutor, Mr. R. Karthikeyan Special Public Prosecutor [For NIA]

Case Title: Mrs Sarikathu Nisha v. The Superintendent of Prison and Others

Citation: 2025 LiveLaw (Mad) 152

Case No: W.P.No.14244 of 2025