Suseela Babu and Girija Velayudhan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 26[TH] DAY OF JUNE 2023 / 5TH ASHADHA, 1945** ## **WP(CRL.) NO. 172 OF 2023** **CRIME NO.321/2015 OF Pavaratty Police Station, Thrissur AGAINST SC 705/2015 OF ADDITIONAL SESSIONS COURT -IV,** ## **THRISSUR** ## **PETITIONERS:** **1 SUSEELA BABU AGED 60 YEARS, W/O. LATE BABU, C/O. SUNIL T.S, THEKKEPPATTU HOUSE, P.O., THIRUNELLUR, PAVARATTY, THRISSUR, PIN - 680508 2 GIRIJA VELAYUDHAN, AGED 56 YEARS, W/O. LATE VELAYUDHAN, KALAPPURAKKAL HOUSE, PUVVATHUR P.O, PERINGAD, THRISSUR, PIN - 680508** **BY ADVS. SRI.K.S.MADHUSOODANAN SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SRI.K.S.MIZVER SRI.M.J.KIRANKUMAR** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 DIRECTOR GENERAL OF PRISON AND CORRECTIONAL SERVICES, KERALA PRISON AND CORRECTIONAL SERVICES DEPARTMENT, GOVERNMENT OF KERALA, POOJAPPURA, THIRUVANANTHAPURAM, PIN - 695012 3 SUPERINTENDENT CENTRAL PRISON AND CORRECTIONAL HOME,** W.P.(Crl.) No.172/23 **-:2:-** **PALLIKKUNNU P.O, KANNUR, PIN - 670004** **4 CITY POLICE COMMISSIONER** **CITY POLICE OFFICE, THRISSUR, PIN – 680009** **BY SRI.K.A.NOUSHAD, PUBLIC PROSECUTOR** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 31.05.2023, THE COURT ON 26.06.2023 DELIVERED THE FOLLOWING:** **-:3:-** W.P.(Crl.) No.172/23 ## **BECHU KURIAN THOMAS, J. -------------------------------W.P.(Crl.) No.172 of 2023 ---------------------------------** Dated this the 26[th] day of June, 2023 ## **JUDGMENT** The two writ petitioners project a common grievance that their sons (for brevity hereinafter referred to as the 'prisoners'), who are accused in the same sessions case and convicted for life imprisonment, are not being granted ordinary parole despite them entitled to such leave. 2. By judgment dated 14.03.2019 in S.C. No.705 of 2015, of the IV Additional Sessions Court, Thrissur, prisoners, who were arrayed in that case as accused 5 and 7 respectively were convicted and sentenced to life imprisonment. They have already completed four years in jail and had applied for ordinary parole. Though reports of the Probation Officer were in their favour, the police report alleged that if those prisoners are released on parole, there will be law and order problems from the relatives and friends of the victim. Petitioners allege that their sons are not being granted ordinary parole, under one pretext or the other, which is arbitrary and highly W.P.(Crl.) No.172/23 ## **-:4:-** discriminatory. 3. Sri.K.S.Madhusoodanan, learned counsel for the petitioners contended that the two prisoners are being discriminated upon for reasons which are extraneous and political. The learned counsel submitted that the police report is manipulated with the intention to deprive these convicts of their ordinary leave which is legally entitled to them. It was contended that, second petitioner's son was on special leave for more than a year due to Covid-19 i.e., from 10.05.2021 to 12.05.2022 and despite him being on special parole, there was never any trouble and hence the police report, based upon an imaginary reason, is bereft of any truth. The learned counsel also asserted that minor prison offences have now been falsely registered against the prisoners and the same are being relied upon to deny their rightful claims. Relying upon Rule 397(l) of the Kerala Prisons and Correctional Services (Management) Rules, 2014 (for short 'the Rules'), the learned counsel submitted that the nature of jail offence that warrants denial of ordinary parole are not the nature of offences allegedly committed by the prisoners, as evident from Ext.P10 and Ext.P11 FIRs. On the above basis, it was submitted that ordinary parole ought to be granted to the prisoners, as contemplated by the W.P.(Crl.) No.172/23 ## **-:5:-** Rules. 4. Sri.K.A.Noushad, the learned Public Prosecutor submitted that the prisoners are accused 5 and 7 in a political murder that occurred in 2008 and that they were denied ordinary parole on the basis of negative reports of the police. It was submitted that as per the police report, serious law and order situation will arise if the two prisoners are released. It was also pointed out that two jail offences as seen from Ext.P10 and Ext.P11 FIRs are registered against them. Learned Public Prosecutor further submitted that in Ext.P10 FIR, first petitioners' son was found to have been in possession of a mobile phone inside the jail while in Ext.P11 FIR, offence has been registered against second petitioners' son under section 151 of the Indian Penal Code, 1860. The learned Public Prosecutor also submitted that grant of parole to other convicts in the same sessions case indicates that the reasons for denial of parole to the prisoners in this case are specific to those convicts and there is no reason to allege any political malafides. 5. I have considered the rival contentions and have perused the documents produced. 6. It is evident from a reading of Ext.P8 information under the W.P.(Crl.) No.172/23 **-:6:-** Right to Information Act, 2005 that even though the second petitioner's son was granted special leave due to Covid-19, there was no law and order situation during the said period of leave. It is further evident from Ext.P2 that the Probation Officer's report as regards first petitioner's son is in his favour. It is also evident that the other accused in S.C. No.705 of 2015 have been granted ordinary parole and there had never been any occasion of law and order situation as against them. Section 78 of the Kerala Prisons and Correctional Services (Management) Act, 2010 deals with leave to convicted prisoners. The provision for leave is intended as a measure of rehabilitation and re-socialisation. It is an incentive for good behavior and responsiveness to correction. 7. Rule 397 of the Rules deals with various types of leave available. The said rule speaks about entitlement of a convict for 60 days of ordinary parole in a year which can be availed in four different periods of 15 days each. As per Rule 397(l) of the Rules leave cannot be granted to certain specific category of prisoners. The jail offences noted under Rule 397(l)(iii) of the Rules are those relating to rioting, assault and other similar grave offences. Use of a mobile phone is not an offence regarded as sufficient enough to deny W.P.(Crl.) No.172/23 **-:7:-** grant of leave to a convict. Similarly, the offence alleged in Ext.P11 is that under Section 151 Cr.P.C. The power under section 151 Cr.P.C is a measure of preventive action of the police and cannot be termed as an offence. It is a power to prevent the commission of a cognizabe offence. Therefore the allegation that prisoners had committed offences specified in Ext.P10 and Ext.P11 FIRs cannot be a reason to deny leave to them as per the Rules. 8. It is not every kind of offence that would deprive a prisoner of the right to be released on ordinary leave. In the decision in **Noushad v. State of Kerala** (2023 (3) KLT 24), this Court had observed that leave can be denied only if the convict has been regarded as dangerous and those who have committed serious jail offences like assault, riot or escape from prison and abetment of those offences. The nature of offences that can deprive the grant of leave are specified in Rule 397(l)(iii) of the Rules. On a reading of Ext.P10 and Ext.P11 FIRs it is evident that the nature of offences allegedly committed therein do not fall within the purview of the jail offences that disentitles a prisoner for getting leave. Thus, the reason to deny bail to the prisoners in this case cannot hold good. 9. The Probation Officer's report is admittedly in favour of the W.P.(Crl.) No.172/23 **-:8:-** two convicts. Though the police report is against the prisoners, there is no basis for such a report. Even after second petitioner's son was out on leave for more than a year, no breach of law and order situation arose. Therefore the said contention is bereft of any material. 10. The contention that there is a chance for the relatives of the victim in the sessions case to attack the prisoners is also without any basis as the said situation is equally applicable to other life convicts. However, such a reason was not put forth when those co-convicts sought for ordinary leave. Further, even after those co-convicts were granted leave, no untoward incident took place. Interestingly even when the second petitioner's son was on special leave due to Covid19, no untoward incident was reported. 11. Having regard to the aforesaid circumstances, this Court is of the opinion that the prisoners, Sri.T.B.Subin and Sri.K.V.Vijaya Sankar, are also entitled for similar treatment as meted out to the other convicts in the same sessions case. In view of the above, it is declared that petitioners' sons are entitled for ordinary parole in tune with Rule 397 of the Rules. The respondents concerned are directed to consider the case of the prisoners and pass appropriate orders W.P.(Crl.) No.172/23 ## **-:9:-** granting ordinary parole to them to the extent they are eligible in conformity with the rules. The needful shall be done, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. Writ petition is disposed of as above. **Sd/BECHU KURIAN THOMAS JUDGE** vps W.P.(Crl.) No.172/23 **-:10:-** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 PHOTOCOPY OF THE 1ST PETITIONER'S APPLICATION UNDER RTI DATED 10-12-2022 TO THE 3RD RESPONDENT EXHIBIT P2 PHOTOCOPY OF THE REPLY OF THE 3RD RESPONDENT DATED 20-12-2022 BEARING NO. R4-837/2020/CPK TO THE 1ST PETITIONER** **EXHIBIT P3 PHOTOCOPY OF THE 1ST PETITIONER'S APPLICATION UNDER RTI DATED 10-12-2022 TO THE 4TH RESPONDENT.** **EXHIBIT P4 PHOTOCOPY OF THE REPLY OF 4TH RESPONDENT DATED 21-12-2022 BEARING NO. G1 (A) - 72843/2022/RC TO THE 1ST PETITIONER EXHIBIT P5 PHOTOCOPY OF THE REPLY OF 4TH RESPONDENT DATED 28-12-2022 BEARING NO. G1 (A) - 72843/2022/RC TO THE 1ST PETITIONER EXHIBIT P6 PHOTOCOPY OF THE REPLY UNDER RTI OF THE INSPECTOR OF POLICE, PAVARATTY POLICE STATION DATED NIL TO THE 1ST PETITIONER EXHIBIT P7 PHOTOCOPY OF THE REPLY OF 4TH RESPONDENT TO THE 2ND PETITIONER BEARING NO. G1 (A) -60730/2022/RC DATED 25-10-2022 EXHIBIT P8 PHOTOCOPY OF THE APPLICATION UNDER RTI OF THE 2ND PETITIONER TO THE 3RD RESPONDENT DATED 12-12-2022. EXHIBIT P9 PHOTOCOPY OF THE REPLY OF THE 3RD RESPONDENT DATED 20-12-2022 BEARING NO. R4-837/2020/CPK TO THE 2ND PETITIONER. EXHIBIT P10 TRUE COPY OF THE FIR IN CRIME NO.321/2021 OF KANNUR TOWN POLICE STATION DATED 11/4/2021 EXHIBIT P11 TRUE COPY OF THE FIR IN CRIME NO. 1122/2021 OF PAVARATTY POLICE STATION DATED 21/9/2021**