Subaida, Nasiya, Rasiya, Sherina v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941** ## **WP(C).No.32172 OF 2018(V)** |**PETITIONER**<br>**:**|**PETITIONER**<br>**:**|| |---|---|---| |**1**||**SUBAIDA**| |||**AGED 39 YEARS**| |||**W/O.KASIM (C 2432, VIYYUR CENTRAL JAIL),**| |||**KAPPOORIL HOUSE, KUNJUNNIKARA, KADUNGALLUR,**| |||**VILLAGE ALUVA.**| |**2**||**NASIYA,**| |||**AGED 30 YEARS**| |||**W/O. SAJEER (C 2433, VIYYUR CENTRAL**| |||**JAIL),KADUNGALLUR VILLAGE, MUPPATHADAM, ALUVA**| |**3**||**RASIYA**| |||**AGED 29 YEARS**| |||**W/O. ALI (C 2435, VIYYUR CENTRAL JAIL),**| |||**KUZHITHOTTIL HOUSE, KURUVINAMPARA, ERAMALLUR**| |||**VILLAGE, CHERUVATHOOR, KOTHAMANGALAM.**| |**4**||**SHERINA,**| |||**AGED 33 YEARS**| |||**W/O. JAFFER (C-361/15), KANNUR CENTRAL JAIL),**| |||**PARUTHIKATTUKUDI HOUSE,ERAMALLUR VILLAGE,**| |||**PUVATHOOR, KOTHAMANGALAM.**| |||**BY ADVS.**| |||**SRI.K.S.MADHUSOODANAN**| |||**SRI.M.M.VINOD KUMAR**| |||**SRI.P.K.RAKESH KUMAR**| |||**SRI.K.S.MIZVER**| |||**SMT.S.JESSIN**| |||**SMT.C.C.BINDHYA**| |**RESPONDENT/S**<br>**:**||| |**1**||**STATE OF KERALA**| |||**TO BE REP. BY SECRETARY, HOME DEPARTMENT,**| |||**GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.**| |**2**||**DIRECTOR GENERAL OF PRISON AND CORRECTIONAL**| |||**SERVICES**| |||**KERALA PRISON AND CORRECTIONAL SERVICES**| |||**DEPARTMENT,**| |||**GOVERNMENT OF KERALA, POOJAPPURA,**| |||**THIRUVANANTHAPURAM 695 012.**| **WP(C).No.32172 OF 2018(V)** **2** - **3 SUPERINTENDENT, CENTRAL PRISON AND CORRECTIONAL HOME, VIYYUR, THRISSUR 680 010.** - **4 SUPERINTENDENT, CENTRAL PRISON AND CORRECTIONAL HOME, KANNUR 670 001.** **ADDL.R5 IMPLEADED 5 ADDL.R5 NATIONAL INVESTIGATING AGENCY ERNAKULAM, REPRESENTED BY INVESTIGATING OFFICER. (ADDL.R5 IMPLEADED VIDE ORDER DATED 02/11/2018 IN IA.NO.01/2018)** **R1 TO R4 BY SMT. M.K. PUSHPALATHA R5 BY SRI.M.AJAY, SPL. P.P FOR NIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.10.2019, THE COURT ON 08..01.2020 DELIVERED THE FOLLOWING:** **WP(C).No.32172 OF 2018(V)** **3** ## **“C.R”** ## **R. NARAYANA PISHARADI, J --------------------------------------------W.P.(C) No.32172 of 2018 ---------------------------------------------** Dated this the 8[th] day of January,2020 ## **JUDGMENT** The writ petitioners are the wives of some of the accused in the case S.C. No. 01/2013 on the file of the Special Court for the Trial of NIA Cases, Ernakulam. 2. The husbands of the petitioners have been convicted and sentenced to undergo different periods of sentence of rigorous imprisonment for the offences punishable under Sections 326, 307 and 153A read with 120B IPC, Section 3 of the Explosive Substances Act, 1908 and also under Section 16 read with 18 and Section 20 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as “UAPA”). The aforesaid convicted persons are lodged in the Central Prisons at Viyyur and Kannur. 3. The grievance of the petitioners is that their husbands are denied the benefit of remission of sentence earned by them under Section 72 of the Kerala Prisons and Correctional Services (Management) Act, 2010 (hereinafter referred to as 'the Act'), on the ground that they are persons **WP(C).No.32172 OF 2018(V)** **4** convicted for offences under the UAPA, which is a Central Act. The petitioners have got a further grievance that their husbands are not granted the benefit of police escort on visit of near relatives, once in six months, as provided under Rule 415 of the Kerala Prisons and Correctional Services (Management) Rules, 2014 (hereinafter referred to as 'the Rules'). 4. The National Investigation Agency (for short 'NIA'), the fifth respondent in the writ petition, has filed a detailed counter affidavit. 5. Heard Sri.K.S.Madhusoodhanan, learned counsel for the petitioners and Sri.M.Ajay, learned Special Public Prosecutor for NIA and also the learned Public Prosecutor who appeared for respondents 1 to 4. 6. Learned counsel for the petitioners contended that remission earned by a convict under Section 72 of the Act cannot be denied on the ground that he is a person convicted for an offence under the UAPA, a Central Act. Learned counsel would contend that there is distinction between remission earned under Section 72 of the Act and remission granted by the Government under Section 432 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). **WP(C).No.32172 OF 2018(V)** **5** Learned counsel would also point out that another person convicted by the same court in the same case has been granted remission pursuant to the direction given by this Court in Ext.P3 judgment. 7. _Per contra,_ learned Special Public Prosecutor for the NIA contended that the power to grant remission to a convict is vested with the appropriate Government and in the case of a person convicted of an offence under the UAPA, a Central Act, the appropriate Government is the Central Government. Learned Special Public Prosecutor, in support of the aforesaid contention, has placed reliance upon the decision of the Apex Court in **Union of India v. Sriharan: (2016) 7 SCC 1.** Learned Special Public Prosecutor would contend that the State Government has no power to grant remission to a person convicted for an offence under the UAPA, a Central Act, whether it be under Section 432 of the Code or under Section 72 of the Act. 8. Learned Special Public Prosecutor has referred to various passages in **Sriharan** (especially paragraphs 127, 130, 131, 133 and 135 to 142 and 180 as they figure in SCC journal) to buttress his contention that when a person is **WP(C).No.32172 OF 2018(V)** **6** convicted for an offence under a Central Act, it is only the Central Government which has got power to grant him remission of sentence. It is not necessary to extract the aforesaid passages here. Suffice it to state that the dictum laid down by the Apex Court in **Sriharan** (supra) is with regard to the power of granting remission under Section 432 of the Code and not with regard to remission which is earned by a convict under the prison rules of the States for good conduct or good behaviour. 9. Learned Special Public Prosecutor for the NIA also referred to the decision of the Apex Court in **State of Gujarat v. Lal Singh:(2016) 8 SCC 370** in support of his contentions. The decision in **Lal Singh** (supra) has no application to the facts of the present case. It is also a case which dealt with granting of remission under Section 432 of the Code and premature release of a prisoner from jail and also granting temporary parole to him. It is not a case which dealt with granting of remission earned by a convict under the prison rules. 10. The distinction between remission under Section 432 of the Code and jail remission has been noticed in **Sriharan** **WP(C).No.32172 OF 2018(V)** **7** (supra) itself. The Apex Court has observed in **Sriharan** (supra) as follows: _“As far as remissions are concerned, it consists of two types. One type of remission is what is earned by a prisoner under the Prison Rules or other relevant Rules based on his/her good behaviour or such other stipulations prescribed therein. The other remission is the grant of it by the appropriate Government in exercise of its power under Section 432 Code of Criminal Procedure”_ The Apex Court has again observed as follows: _“Remissions are of two kinds. The first category is of remissions under the relevant Jail Manual which depend upon the good conduct or behavior of a convict while undergoing sentence awarded to him. These are generally referred to as 'earned remissions' and are not referable to Section 432 of Cr.P.C but have their genesis in the Jail Manual or any such guidelines holding the field.”_ (emphasis supplied). The Apex Court has further held as follows: _“The difference between earned remissions "for good behaviour" and the remission of sentence under Section 432 is clear. The first depends upon the Jail Manual_ **WP(C).No.32172 OF 2018(V)** **8** _or the policy in question and normally accrues and accumulates to the credit of the prisoner without there being any specific order by the appropriate Government in an individual case while the one under Section 432 requires specific assessment in an individual matter and is case specific”._ 11. There is a clear distinction between remission earned by a convict and remission granted by the Government under Section 432 of the Code. Remission is earned by a convict for his good behaviour or conduct in jail. Remission under Section 432 of the Code is not something which is earned by a convict. It is a benefit granted to a prisoner by the appropriate Government in exercise of the power under Section 432 of the Code which is an enabling provision. Remission of sentence under Section 432 of the Code is not a right of the prisoner. A specific order of the Government is necessary in individual cases granting remission under Section 432 of the Code. On the other hand, remission earned would accrue and accumulate to the credit of the prisoner by his good conduct and behaviour in jail. Of course, there would be appropriate mechanism to assess and decide whether the **WP(C).No.32172 OF 2018(V)** **9** prisoner has earned remission by good conduct. Remission earned is added to the period of imprisonment to make up the term of sentence awarded by the court. On the other hand, when remission is granted by the Government under Section 432 of the Code, it enables the prisoner to have a premature release from jail. 12. Section 72(1) of the Act provides that remission may be granted to convicted prisoners as may be prescribed in the rules and there shall be a Remission Committee consisting of the Superintendent and such other officers as may be prescribed to oversee the calculation and computation of remission to convicted prisoners in the Central Prison, Open Prison and Women's Prison. 13. Rule 376 of the Rules provides that remission of sentence shall be granted to convict prisoners for good conduct and behaviour in jail, but all categories of prisoners are not entitled to remission. Rule 379(a) states that two days of remission in each month can be granted for good behaviour and strict observance of the jail rules. Rule 379 (b) of the Rules provides for granting remission of two days in each month for hard work and prompt accomplishment of work **WP(C).No.32172 OF 2018(V)** **10** entrusted to a prisoner each day. Rule 383 states that, it is the Superintendent of Prisons or a person specifically empowered by him, is the authority to grant remission. 14. The expression “remission may be granted” in Section 72(1) of the Act does not mean that it is not mandatory to grant remission to a convicted prisoner under that provision. The various provisions contained in Chapter 29 of the Rules indicate that remission which is earned by a convicted prisoner under Section 72 of the Act is a right of the prisoner, except under any of the circumstances specifically provided under the Rules. 15. The quintessence of the discussion above is that remission earned by a convicted prisoner under Section 72 of the Act cannot be denied to him on the ground that he is a person convicted for an offence under the UAPA. 16. With regard to granting of police escort for convicted prisoners for visiting their near relatives once in a period of six months, as provided under Rule 415 (2) of the Rules, there is no material produced by the petitioners to show that either the petitioners or their husbands had filed any application before the appropriate authority in that regard and such application **WP(C).No.32172 OF 2018(V)** **11** was rejected. Learned counsel for the petitioners has also not made any submission in detail on this issue. In such circumstances, no question of granting any relief in that regard arises. 17. In the result, the writ petition is allowed in part. The third and the fourth respondents are directed to consider the question of granting remission under Section 72 of the Act to the husbands of the petitioners, whose names and convict numbers are stated in the writ petition, and to pass appropriate orders in that regard within a period of two months from the date of receipt or production of a certified copy of this judgment, whichever is earlier. **Sd/- R. NARAYANA PISHARADI JUDGE** lsn **WP(C).No.32172 OF 2018(V)** **12** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE APPLICATION UNDER RTI DATED 16-11-17** - **EXHIBIT P2 PHOTOCOPY OF THE REPLY UNDER RTI DATED 1812-17 BEARING NO. WPI-24729/2017 FROM THE 2ND RESPONDENT'S OFFICE** - **EXHIBIT P3 PHOTOCOPY OF THE ORDER IN WP(C) 5758/2018 DATED 5-4-2018 OF THE HON'BLE HIGH COURT OF KERALA** - **EXHIBIT P4 PHOTOCOPY OF THE CERTIFICATE ISSUED BY 3RD RESPONDENT DATED 3-5-2018** - **EXHIBIT P5 PHOTOCOPY OF THE ORDER IN CRL.M.A 4288/16 IN CRL.M.A 4035/18 IN CRL.A 501/15 DATED 27-7-2018** - **EXHIBIT P6 PHOTOCOPY OF THE APPLICATION OF THE 1ST PETITIONER TO PUBLIC INFORMATION OFFICER, ALUVA** - **EXHIBIT P6 A PHOTOCOPY OF THE REPLY DATED 9-12-17 BEARING NO. 59/RTI/IT AE** - **EXHIBIT P7 PHOTOCOPY OF THE APPLICATION TO PUBLIC INFORMATION OFFICER, BINANIPURAM POLICE STATION BY 2ND PETITIONER DATED 7-12-2017.** - **EXHIBIT P7 A PHOTOCOPY OF THE RECEIPT NO. 33/RTI/BPM/17 DATED 11-12-17** ## **RESPONDENTS EXHIBITS: NIL** **TRUE COPY** **P.A TO JUDGE** **LSN**