P. Kunjabdulla and K.N. Abdul Rasheed v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942** ## **WP(C).No.10305 OF 2020(K)** ## **PETITIONERS:** **1 P. KUNJABDULLA, AGED 60 YEARS S/O. EDAKKAVIL MAMMUNHI, FARSANA MANZIL P.O. KOTTAPPURAM, NEELESWARM, KASARAGOD DISTRICT. 2 K.N. ABDUL RSHEED, AGED 58 YEARS S/O.K.P. ABDULLA, AMINA MANZIL, P.O. KOTTAPPURAM, NEELESWARAM, KASARAGOD DISTRICT. BY ADV. SRI.S.SANAL KUMAR** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 DIRECTOR GENERAL OF PRISONS, PRISONS HEADQUARTERS, POOJAPPURA, THIRUVANANTHAPURAM 695 012.** - **3 SUPERINTENDENT OF CENTRAL PRISONS, POOJAPPURA, THIRUVANANTHAPURAM 695 012, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 31.** ## **OTHER PRESENT:** ## **GP PRINCY XAVIER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0906-2020, THE COURT ON 19-06-2020 DELIVERED THE FOLLOWING:** W.P.(C).No.10305/20 2 ## **JUDGMENT** **Dated this the 19[th] day of June 2020** - 1.This writ petition is filed with the following prayers:- “i.To issue a writ of certiorari or any other appropriate writ, order or direction calling for the records relating to Exhibit P7 and P8 and quash the same. ii. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2[nd] respondent to release Mohammed Noushad C.K. @Noushad and Mohammed Rameez E.K. @Rameez who were accused No.1 and 3 in SC No.97/2014 of Additional District and Sessions Judge III, Kasaragod presently undergoing imprisonment in Central Jail, Poojappura based on Ext.P1 government order.” 2.Heard the learned counsel for the petitioners and the learned Government Pleader. **==> picture [432 x 31] intentionally omitted <==** 3. The 1[st] petitioner is the father of Mohammed Noushad C K, while the 2[nd] petitioner is the father of Mohammed Rameez E.K. The petitioners' sons are the 1[st] and 3[rd] accused respectively in Sessions Case No.97/2014 tried by the W.P.(C).No.10305/20 3 Additional District and Sessions Judge-III, Kasaragode. They have been convicted for offences punishable under Sections 120B, 302 and 201 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs.25,000/each. They had also been sentenced to undergo rigorous imprisonment of five years and to pay a fine of Rs.10,000/with default clause under Section 201 of the Indian Penal Code. Criminal Appeals preferred by them against the conviction and sentence are pending before this Court. **==> picture [432 x 31] intentionally omitted <==** 4. The petitioners had submitted applications seeking parole for their sons on the basis of Exhibit P1 order enabling the Director General of Prisons to grant extraordinary parole in the background of the Covid 19 pandemic. They had also approached this court and Ext P6 interim order was issued directing the consideration of the requests. However, their applications for parole had been rejected by Exhibits P7 and P8 orders which are under challenge in this writ petition. **==> picture [432 x 31] intentionally omitted <==** W.P.(C).No.10305/20 4 5. The learned counsel for the petitioners submits that the applications had been rejected without application of mind and without any valid reason. It is submitted that the accused persons are entitled to parole under Exhibit P1 as also in terms of Rule 397(b) of the Kerala Prisons and Correctional Services (management) Rules 2014. It is stated that a prisoner is entitled to 60 days of leave in a year and in the background of Exhibit P1, the mere fact that the petitioners' sons are undergoing a sentence of life imprisonment for offences including murder would not be a reason for denying the parole to them. It is stated that it was only on a valid police report which points out any undesirability of granting parole that parole can be declined. It is contended that a reading of Exhibits P7 and P8 orders would show that they are mechanically passed considering only the gravity of the offences for which the petitioners' sons stand convicted and that the orders are illegal and arbitrary. **==> picture [432 x 31] intentionally omitted <==** W.P.(C).No.10305/20 5 6. The learned counsel for the petitioners places reliance on the decisions of the Apex Court in Asfaq v. State of Rajasthan and others [(2017) 15 SCC 55] to contend that it is only where there are adverse police and probation reports available that parole can be denied especially in the light of Exhibit P1 order. The judgments of this Court in W.P.(C).Nos.17293/2019, 38980/2017, 31130/2016 and 27476/2012 are also relied on by the learned counsel for the petitioners to contend that the denial of parole without any proper reason and without application of mind is absolutely illegal and deserves to be set aside. It is stated that where there is no justifiable reason for denying parole, the gravity of the offence by itself should not be relied on to deny parole. **==> picture [432 x 31] intentionally omitted <==** 7. The learned Government Pleader has placed a report submitted by the 3[rd] respondent, the Superintendent of Central Prisons and Correctional Home, Thiruvananthapuram on record. The report of the 3[rd] respondent states that Rule 397 of the Kerala Prisons and Correctional Services W.P.(C).No.10305/20 6 (management) Rules 2014 states that power to grant first ordinary parole vests with the Director General of Prisons and Correctional Services and is to be based on police and probation reports regarding safety of the prisoner and whether law and order problems would arise due to granting of ordinary leave. It is stated that due to the adverse police and probation reports ordinary leave was not granted to the petitioners. It is stated that the case of Mohammed Noushad, son of Kunjabdulla was placed before the Parole Board constituted as per Kerala Prisons and Correctional Services (management) Rules 2014 for considering granting of parole to prisoners who have more than three adverse police reports. However, the Board did not recommend his case. It is stated that on 4.2.2020, Mohammed Ramees, son of Abdul Rasheed have given an application for an escort visit and sought a police report in this regard. However, it is stated that on 17.2.2020 a report was received from the Neeleswaram Police Station stating that visit of the inmate may cause law and order issues in the premises and his application had been W.P.(C).No.10305/20 7 rejected. It is stated that this Court had directed the 2[nd] respondent to consider the petitioner's application for parole and take action in accordance with law. It is stated that the 3[rd] respondent again sent a communication to the Police Station and received an adverse police report in respect of Mohammed Ramees, son of Abdul Rasheed and Mohammed Noushad, son of Kunjabdulla from the District Police Chief, Kasaragode on 1.5.2020 and 23.5.2020 respectively. It is stated that the adverse police reports are the reason for not releasing the petitioners' sons on parole. **==> picture [432 x 31] intentionally omitted <==** 8. I have considered the contentions advanced. Section 78 of the Kerala Prisons and Correctional Services (management) Act provides that leave can be granted to well behaved, eligible, convicted prisoners with the objective of their better rehabilitation and re-socialisation as an incentive for good behaviour and responsiveness to correction a treatment in such manner and subject to such conditions as may be prescribed. Section 79 provides that the prisoners who are W.P.(C).No.10305/20 8 not eligible for leave may be granted to visit relatives etc. under escort. Exhibits P2 and P4 requests were made by the petitioners on 30.03.2020 for grant of leave to their sons. This Court by Exhibit P6 interim order dated 24.4.2020 directed the consideration of the said requests in the light of clause (b) of Exhibit P1 circular and Rule 397(b) after obtaining reports from the concerned police stations. Exhibits P7 and P8 state that there are adverse police reports. **==> picture [432 x 31] intentionally omitted <==** 9. Rule 397 of the Kerala Prisons and Correctional Services (management) Rules 2014 provides that a prisoner is eligible for 60 days leave in a year subject to further conditions therein. Rule 397(h) provides that when an application for leave or parole is submitted, a report must be obtained from the Sub Inspector of Police with regard to any law and order issues likely to arise or any issues as to the safety of the prisoners and whether the prisoner is likely to abscond while on parole and whether there was any history of misconduct during earlier instances of parole. The recommendation of the W.P.(C).No.10305/20 9 Jail Superintendent with regard to the behaviour and antecedents of the prisoner is also required. A report of the probationary officer with regard to social and family background of the prisoner is also to be made available. It is specifically provided that these reports are essential for grant of first original leave. **==> picture [432 x 31] intentionally omitted <==** 10.Though the report of the 3[rd] respondent refers to the reports of the local Police dated 1.5.2020 and 23.5.2020, the said reports do not form a part of the pleadings. Moreover, I notice that Exhibits P7 and P8 are orders rendered on 29.4.2020 by the 2[nd] respondent. Therefore, the police reports dated 1.5.2020 and 23.5.2020 cannot be the reason for denial of parole to the petitioners on a prior date. I required the learned Government Pleader to get specific instructions as to whether the dates of the reports mentioned in the report of the 3[rd] respondent is a mistake. It was submitted by the learned Government Pleader that the dates mentioned are correct. In the above factual aspect of the matter, and on a reading of W.P.(C).No.10305/20 10 Exhibits P7 and P8 orders, I am of the opinion that the reports referred to in Exhibits P7 and P8 are not the police reports dated 1.5.2020 and 23.5.2020 respectively. It is apparent that Exhibits P7 and P8 orders have been passed denying parole without application of mind and without considering a current police report. The learned counsel for the petitioners would contend that there is absolutely no reason for denying parole, except the alleged adverse police reports. If that be so, the police reports relied on in the report of the 3[rd] respondent being later in date to the impugned orders, I am of the opinion that the impugned orders which have been rendered denying parole are unsustainable. **==> picture [432 x 31] intentionally omitted <==** 11.Exhibits P7 and P8 orders are therefore set aside. There will be a direction to the respondents to consider the applications for parole specifically as directed in Exhibit P6 interim order. The current situation in the State and the health security aspects will also be considered by the 2[nd] respondent while reconsidering the applications for parole. Orders shall be W.P.(C).No.10305/20 11 passed on Exhibits P7 and P8 applications within a period of two weeks from the date of receipt of a copy of this judgment. **==> picture [432 x 31] intentionally omitted <==** The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.10305/20 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE GO (RT) NO. 970/2020/HOME DATED 25.3.2020 ISSUED BY THE GOVERNMENT OF KERALA.** - **EXHIBIT P2 TRUE COPY OF THE PETITION DATED 30.3.2020 SUBMITTED BY THE 1ST PETITIONER BEFORE THE CHIEF MINISTER OF KERALA.** **EXHIBIT P3 A TRUE COPY OF THE EMAIL COMMUNICATION RECEIVED FROM THE OFFICE OF THE CHIEF MINISTER GOVERNMENT OF KERALA, TO THE 1ST PETITIONER.** - **EXHIBIT P4 A TRUE COPY OF THE PETITION DATED 30.3.2020 SUBMITTED BY THE 2ND PETITIONER BEFORE THE CHIEF MINISTER OF KERALA.** - **EXHIBIT P5 A TRUE COPY OF THE EMAIL COMMUNICATION RECEIVED FORM THE OFFICE OF THE CHIEF MINISTER, GOVERNMENT OF KERALA, TO THE 2ND PETITIONER.** - **EXHIBIT P6 A TRUE COPY OF THE INTERIM ORDER OF THIS HONBLE COURT IN WPC TEMPORARY E FILING NO. 115/2020 DATED 24.4.2020.** - **EXHIBIT P7 A TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 29.4.2020 REJECTING THE APPLICATION OF THE 1ST PETITIONER.** - **EXHIBIT P8** **A TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 29.4.2020 REJECTING THE APPLICATION OF THE 2ND PETITIONER.** True copy PS to Judge