V.J. Jayakumar Abraham v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **&** **THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR** **FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929** **WP(C).No. 20681 of 2006(S)** **-------------------------------------** **PETITIONER:** - **------------------** **V.J.JAYAKUMAR ABRAHAM, ADVOCATE, TRIVANDRUM, RESIDING AT SHALEM HOUSE, MANATHOTTAM, VELLARADA P.O., NEYYATTINKARA TALUK, TRIVANDRUM DISTRICT.** **BY ADV. SRI.S.JAMES VINCENT** ## **RESPONDENTS:** **-----------------------** **1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1.** **2. THE DIRECTOR OF PRISONS (ADDL.DIRECTOR GENERAL OF POLICE), POOJAPPURA P.O., THIRUVANANTHAPURAM-12.** **3. THE UNION OF INDIA, REP. BY THE SECRETARY TO GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, CENTRAL SECRETARIAT, NEW DELHI- 110001. *ADDL. R3 IS IMPLEADED BY ORDER DATED 21/11/2006 IN IA NO. 15778/2006)** **GOVERNMENT PLEADER SRI. NOBLE MATHEW** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO: 20681/2006 S** ## **APPENDIX** **PETITIONER'S EXHIBITS** **EXT.P1. COPY OF THE PRESS REPORT IN IN MALAYAMA MANORAMA DATED 07/08/2006.** **EXT.P1A. COPY OF THE PRESS REPORT IN MALAYALA MANORAMA DT. 11/08/2006.** **RESPONDENT'S EXHIBITS nil.** True copy tga **16. Now we shall consider whether any or all of the rules in Chapter XXVI, XXVI A and XXXII of the Kerala Prison Rules, 1958 are to be quashed. Chapter XXVI of the Rules deals with 'leave'. Rule 452 A defines 'leave' which provides that there shall be two kinds of leave - emergency and ordinary. Rule 452B deals with 'eligibility for leave'. Rule 452 BB deals with 'emergency leave'.** **17. Rule 453 deals with 'maximum period of leave'. Rule 454 provides 'the authority who is competent to grant leaves'. Rule 455 deals with 'grounds for grant of leave'. Rule 456 provides that there shall be petitions and to whom the petitions shall be addressed. Rule 457 deals with the persons who are competent to file petitions. It provides that the petition for leave shall be filed either by the prisoner or relative of the prisoner. It also provides that the documents to accompany the petitions. Rule 457 deals with 'appeal'. Rule 458 deals with 'exemptions from furnishing security'. Rule 459 deals with 'execution of bonds'. Rule 460 deals with 'decision on petitions'. Rule 461 deals with 'treatment of the period of leave'. Rule 462 deals with 'travelling expenses'. Rule 463 provides that no prisoner against whom a case is pending is entitled to leave. Rule 464 deals with 'supervision'. Rule 465** ## **deals with 'power to recall'. Rule 466 provides 'time for release'.** **18. Chapter XXVI A consists of only one rule - Rule 466 A which deals with 'home leave'. Chapter XXXII deals with 'advisory board and its procedure. Even for release of a prisoner in accordance with the provisions of Sections 432 and 433A of Criminal Procedure Code details of each case has to be considered and a decision taken. The role of the Advisory Board is to advise the Government. So we do not find any reason to quash any of the provisions under Chapter XXXII also.** **18. The main attack in this proceedings is directed against Rule 452BB which deals with Emergency leave. Power of the Government to grant emergency leave and that of the Home Minister to extend the same is under challenge. Rule 461 which deals with 'treatment of leave' is also under challenge. Rule 452B reads as follows:** **“452 B. Eligibility for Leave:- Well behaved prisoners sentenced to imprisonment for one year and above and who have served out actually 1/3[rd] of the sentence or two years whichever is less** **are eligible for ordinary leave. Any well behaved convicted prisoner is eligible for emergency leave. A prisoner once released on leave of any kind will not be eligible for a subsequent release on leave until the completion of six months of actual imprisonment to be counted from the date of his last return from leave provided that this will not apply to the grant of leave to a prisoner in an emergency due to the death or serious illness of any near relative specified in rule 455. Whenever recommends a prisoner is to be released in parole such petition to Government should accompany the reports of Superintendent of Police and Probation Officer vide G.O.32342/SC3/92/Home dated 6.5.1992.** **Note- xxxxxxxx** **Provided that the following categories of prisoners shall not be eligible for being released on leave -** ## **(i) Prisoners sentenced under the** **Narcotic Drugs and Psychotropic** **Substance Act, 1985;** **(ii) Offenders classified as** ## **habituals;** **(iii) Prisoners sentenced under** **section 392** **Note:-xxxxxxxxxx** **(iv) Prisoners who are considered dangerous or who are involved in serious prison violation like assault, out break, mutiny, escape, instigators to serious violations, strike, etc. and the like;** **(v) Prisoners suffering from unsoundness of mind or contagious diseases.** **Note:-xxxxxxxxx”** **The petitioners were not able to point any infirmity or arbitrariness in Rule 452B. Rule 452BB reads as follows:** **“452BB. Notwithstanding anything contained in this Chapter Government may, grant emergency leave to any** **prisoner exempting him from all or any of the provisions relating to the granting of leave subject to the following conditions, namely:-** **(i) The Secretary, Home Department shall be the authority competent to sanction leave under this rule;** **(ii) Leave under this rule shall be granted only in very exceptional circumstance, such as death or serious illness of father, mother, son, daughter, wife, husband, brother, or sister, marriage of son or daughter and partial or complete loss of residential building due to natural calamities. Each case shall be considered on merits with reference to the report of the Sub Inspector of Police concerned and the recommendation of the Superintendent of the Jail as provided in clause (iv) and the Certificate mentioned in rule 457. The petition for leave shall be** **submitted through the Superintendent of the Jail where the prisoner is confined.** **(iii) Leave under this rule shall be sanctioned only for a maximum period of 15 days. Any extension of this period subject to a maximum of 45 days in the aggregate, shall be ordered only by the Minister in charge of Home Department.** **(iv) Every petition for leave shall be accompanied with a report from the Sub Inspector of Police concerned on the repercussions on the law and order situation if the prisoner is released on leave, particularly his own safety as well as that of others, the possibility, if any, of the prisoner absconding, instances of previous misconduct on his part when on leave earlier and on such other relevant points. The Superintendent of the Jail shall give his specific recommendation with due reference to the conduct of the prisoner in prison his previous history in** **relation to leave, the possibility of his absconding and also the aggregate number of days of leave he has already enjoyed.** **(v) Before a prisoner is released on leave, he shall execute a bond with two sureties for Rs.10,000 each undertaking to return to the prison on the expiry of leave.** **(vi) A person convicted in respect of any offence relating to narcotic drugs or psychotropic substances or any law relating to smuggling or violation of foreign exchange regulations or national security shall not be eligible for leave.** **(vii) A person who fails to return to the prison after leave on the due date shall not be eligible for sanction of leave for a period of one year from the date of return from such unauthorised absence, unless Government are satisfied that such failure was due to reasons beyond his control and** **the period of overstayal is regularised as leave.** **(viii) A person who has absconded while on leave earlier shall not be eligible for sanction of leave under any circumstances.”** **Rule 452BB was incorporated in the Rules with effect from 4.9.1976. The rule then stood was as follows:** **“452BB. Notwithstanding anything contained in Chapter XXVI these Rules Government may, in deserving cases grant leave to any prisoner, exempting him from all or any of the provisions relating to the granting of leave.”** **19. Challenging Rule 452BB petitioner in W.P.(C) No.20681/2006 had filed O.P.No.3489/1993 and Crl.M.C.No.1565/1992 before this Court. A learned Single Judge of this Court allowed the Original Petition. The decision is reported in V.J.Jayakumar Abraham v. State (1993(1) KLJ 676). We fully agree with the reasons stated by the learned Single Judge. This Court held as follows:** **“The Statute in question does not** **indicate legislative policy, nor lay down guidelines for grant of parole. For that matter even the rule does not indicate cases in which parole is to be granted, or considerations upon which parole is to be granted.”** **It also held as follows:** **“As already noticed, neither the Prisons Act, nor even the Rules prescribe any condition or guideline for grant of paroles. While Chapter XXVI of the Rules makes provision for ordinary leave and emergency leave (parole), a third category outside the Chapter is envisioned by rule 452 (BB). All that is needed to invoke this rule, is the opinion of the Government that a particular case is a 'deserving' case. Nothing could be more subjective or arbitrary, than such a prescription. Many concepts are elastic, but few could be more elastic. Opinions may differ and differ vastly too, as to** **what is 'deserving'. The vice of arbitrariness taints the rule.”** **Finally it was held as follows:** **“Rule 452(BB) embodies no guidelines, nor principle, nor philosophy. The rule leaves open the door for predilections, passions and caprice. The Government may decide which is a deserving case, by humour. Nothing could be more arbitrary - less predictable. Uncanalised and unguided discretion without enunciation of legislative policy, or principles upon which discretion is to be exercised, taints the rule with the vice of arbitrariness. Government can pick and choose, with an evil eye and an unequal end. The files and the instances mentioned by petitioners demonstrate arbitrariness in action, and free play of unguided discretion. It follows that rule 452(BB) of the Kerala Prison Rules has to be struck down as arbitrary, ultravires of** **the Statute, and violative of Article 14 of the Constitution of India. It is accordingly struck down. This will not stand in the way of appropriate provisions being made in accordance with law.”** **Rule was struck down. Thereafter Rule 452BB was introduced with effect from 7.9.1993. The stand taken by the Government is that in Jayakumar Abraham's case (supra) this Court allowed the State to make rule in accordance with law and hence the rule was redrafted taking into account all things.** **20. In this connection we may refer to the recommendations made by the High Level Committee headed by Justice V.R.Krishna Iyer, appointed by the Government. It was stated as follows:** **“VI. Circumstances under which emergency leave is granted.** **Presently, both rule 452BB(ii) and rule 455 refer to the grounds. The Committee noted that there is considerable overlap between these two provisions. There is need for coalescing of the provisions in the interest of clarity and textual** **economy. While discussing the actual grounds certain corrections were found necessary. Serious illness of close relatives is one of the grounds. This, the Committee felt could lead to misuse. The Committee favoured substitution of terminal illness to serious illness.** **Recommendations** **C. The following would become grounds for granting emergency leave.** **Death or terminal illness of father, mother, son, daughter, wife, husband, brother or sister and uncle in the case of Marumakkathayam families.** **Marriage of son or daughter. Partial or complete loss of residential building due to natural calamities.** **Any extraordinary reasons recommended by the Probation Officer as necessitating the grant of such leave. These provisions will be** ## **contained in a single rule to lend clarity, consistency and avoid duplication.** **VII. Processing cases.** **VIII. Who may apply and to whom** **to be addressed.** - **IX. Accompanying documents.** - **X. Bond requirements.** - **XI. Penal provisions.** - **XII. Appeal.** **The present provisions are found workable in respect of the above. So no amendments/recommendations made. XIII. Extension provisions** ## **Observations of the High Court** **on the question of indiscriminate sanction and extension of emergency leave and premature release have already been highlighted in para 7 above. The central point made in the observations is that extensions were indiscriminately given as seen in the imprisonment history of the quoted** **cases and the total duration of emergency leave, including extensions, enjoyed by such prisoners in comparison with the period of imprisonment forms substantial portion of the latter. The result is that on flimsy grounds and on the basis of undue influence, prisoners, who can wield influence, avoid imprisonment.”** **21. A reading of Rule 452BB as amended shows that the Government has not introduced any thing new at all. As per the Original Rule emergency leave can be granted only to 'deserving cases'. In the new Rule those words were deleted to give unbridled and unlimited power to the Government to grant emergency leave. The present Rule is subjective and arbitrary. There is no guideline or control. Emergency leave can be granted for any number of occasions.** **22. Rule 457 provides that the petition shall be presented by a prisoner or by a relative of the prisoner. But an application for emergency leave can be filed any wayfarer In fact the materials on record show that mostly such applications are filed by political leaders, MLAs, etc. That fact** **leads to a very serious situation. Any member of an organised gang pretending to be a friend of the prisoner can file such a petition and upon release they can abduct the prisoner and cause harm to him. The reports submitted by the Vigilance and Anti-corruption Bureau establish the connections between criminals and politicians. So we are of the considered opinion that only the convict or his relative shall be permitted to file such a petition. If such a relative is a politician he may file the application but in the application he shall state his relationship with the prisoner.** **23. Sub-rule (i) of Rule 452BB provides that the Secretary, Home Department is the authority competent to sanction the leave. A reading of the Rule shows that power under Rule 452BB is exercised by the Government. The Secretary, Home Department is signing the order for and on behalf of the Government. The provisions of Sub-rule (iii) of Rule 452BB deals with the duration of the leave. But the Rule confers power to the Home Secretary to grant leave for maximum 15 days. It also confers power to a Minister-incharge of Home Department to extend the leave subject to eligibility to maximum of 45 days. Is the Hon'ble Minister in charge of Home Department an appellate authority? Has he** ## **got any statutory authority to extend the leave sanctioned by the Government?** **24. Chapter II of the Constitution of India deals with 'The State Executive'. Article 154 of the Constitution of India provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 163 of the Constitution of India provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in exercise of his functions, except in so far as he is by or under the constitution required to exercise his functions or any of them in his discretion. Article 164 of the Constitution provides that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minsiter and the Ministers shall hold office during the pleasure of the Governor. It reads as follows:** **“Art.164. (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief** **Minister, and the Ministers shall hold office during the pleasure of the Governor:** **Provided that in the State of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work.** **(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.** **(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.** **(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.** **(5) The salaries and allowances of the Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule.”** **Article 166 of the Constitution deals with the conduct of Government business. It reads as follows:** **“Art.166. (1) All executive action of the Government of a State shall** **be expressed to be taken in the name of the Governor.** **(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or** ## **instrument made on executed by the Governor.** **(3) The Governor shall** **make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution to act in his discretion.”** **A reading of Article 166 shows that when a Secretary signs the order it is for and on behalf of the Governor. Article 166(3) confers power to the Governor to frame rules of business. It provides that the Governor may allocate all his functions to Ministers, except those which he is required by or under the Constitution to exercise in his own discretion; and in relation to the business allotted to perform such functions as may be assigned to him. The Governor of Kerala had framed rules of business in exercise of the powers conferred by Clauses (2) and (3) of Article 166 of the Constitution. Learned Advocate General relying on Rule 22 of the Rules of business has argued** **that the Minister has power to enlarge the time fixed by the Government. Rule 22 of the Rules of Business reads as follows:** **“22. Except as otherwise provided by any other rule, cases shall ordinarily be disposed of by or under the authority of the Minister in charge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the department. Copies of such standing orders shall be sent to the Governor and the Chief Minister.”** **25. We find it extremely difficult to agree with the argument of the learned Advocate General that Rule 22 confers power on the Minister to extend the time limit fixed by Governor. Rules of business were framed for the discharge of the functions of the executive power. There is absolutely no provision either under Article 164 which confers any appellate or statutory power to a Minister. The position of the Minister in relation to that of a Governor is subordinate. In Emperor v. Sibnath Banerji (AIR 1945 Privy Council 156) it was held as follows:** **“.........their Lordships are** **unable to accept a suggestion by counsel for the respondents that the Home Minister is not an officer subordinate to the Governor within the meaning of S.49 (1), and so far as the decision in I.L.R.** **(1939) 2 Cal. 411, decides that a minister is not such an officer their Lordships are unable to agree with it. While a minister may have duties to the Legislature, the provisions of S.51 as to the appointment, payment and dismissal of ministers, and S.59(3) and(4) of the Act of 1935, and the Business Rules made by virtue of S.59, place beyond doubt that the Home Minister is an officer subordinate to the Governor.”** **The principle laid down in Sibnath Banerji's case was confirmed by a Constitution Bench of the Apex Court in M. Karunanidhi v. Union of India (AIR 1979 SC 868). The relevant portion reads as follows:** **“Three facts, therefore, have been** ## **proved beyond doubt:-** **1. That a Minister is appointed or dismissed by the Governor and is, therefore, subordinate to him whatever be the nature and status of his constitutional functions.** **2. That a Chief Minister or a Minister gets salary for the public work done or the public duty performed by him.** **3. That the said salary is paid to the Chief Minister or the Minister from the Government funds.”** **The Business Rules framed under Article 166(3) of the Constitution does not confer any power to a Minister who is a subordinate to the Governor to alter a decision taken by the Governor in discharge of his executive powers.** **26. There is yet another aspect. Rule 452BB was introduced for granting emergency leave. The word 'emergency' means unforeseen combination of circumstances calling for immediate action. In 3[rd] edition of 'Advanced Law Lexicon' written by P.Ramanatha Aiyar the word 'emergency' is** ## **defined as follows:** **“Emergency. Any event or occasional combination of circumstances which call for immediate action or remedy; pressing necessity; exigency; a sudden or unexpected happening; an unforeseen occurrence of condition.”** **'Emergency' means an unforeseen combination of circumstance or the resulting state that calls for immediate action. It is very difficult to hold that the emergency will subsist for a period of 45 days. If it is death or destruction of a building the things must become normal within a few days. If the illness persist for 45 days it can be described as an emergent situation. So it is evidently clear that Rule 452BB is reintroduced only for the purpose of granting favours to the criminals of political parties, especially the criminals of partyin-power. Sub-rule (vii) of Rule 452BB confers power on the Government to condone every overstay and regularise the same as leave. That also is against the very concept of emergency. So even after 45 days a person who goes out of the prison on the strength of the emergency leave can keep away from Jail for any number of days. He can then come with** **a petition and exercising political influence get it regularised as emergency leave. When the Government itself fixed the outer time limit it has no power to treat any further period as leave. In this connection it is also pertinent to note that the High Level Committee also recommended that the power now vested with the Ministers is to be taken away. It is recommended that the power shall be given to the State. So that provision is also illegal and liable to be quashed.** **27. Going by the rules the Superintendent of Prison has given power to grant emergency leave for 7 days, Inspector General of Prisons for 10 days and the Government for 15 days and maximum period is 45 days. The rule does not confer any power to the Government to treat any overstay of any kind of leave, emergency or ordinary, as leave or bail. The materials on record shows that there is a practice of treating the overstay as leave. We already held that the Prisons Act, 1894 or the Prisons Act, 1950 do not contain any provision to grant leave. The Kerala Prison Rules, 1958 also does not confer any power to the Government to treat the overstay as leave. So, if any person who was released on leave fails to return within the time allowed by law, the Government cannot treat the same as leave or bail and that period has to be** **treated as absconding or unauthorised absence and the person who does not return shall be proceeded in accordance with the provisions of Indian Penal Code treating that as an offence under Section 225 of Indian Penal Code. We may also quote the recommendations made by the High Level Committee in paragraph 21 of the Operational Philosophy and Jurisprudential Fundamentals as follows:** **“Emergency leave is eligibility for prisoners when sudden tragedies or other exceptional circumstances spring a sad surprise summoning their urgent presence at home. Compelling compassion is the cause of action in such cases. But, there is another class of parole which appears to have been an established practice in Kerala for long years and has worked will in moulding the character, mellowing the impulsiveness and improving the behaviour of culprits in custody. Schools and colleges, courts and tribunals enjoy vacation for a certain fixed period after a year's work, but such** **a standard vacation for prisoners who have worked for a year has no rationale. Can holidays, as bonanza, to murderers, dacoits and dreaded criminals be granted? Prima facie, it sounds like a bizarre conundrum!”** **28. More than one occasion we had directed enquiry by Vigilance and Anti-corruption Bureau. The details in the report submitted by the Director General of Police (Prisons) are shocking. The Director of Vigilance has submitted an enquiry report on 29.3.2004. The Director had given the list of cases in which the persons convicted were outside the jail more days than inside the jail. It is seen that in some cases emergency leave was granted for 90 days and in certain cases convicts were granted leave for more than thousand days. List of such persons were also given. The Director has reported that the provisions of the Kerala Prisons Rules and Kerala Prisons Manual were violated by the Jail Superintendents and Prison Headquarters. Political leaders including MLAs had interfered in pressurising the Prison Authorities to grant leave to convicts in political murder cases. Medical Officers were influenced using money or political power. Political parties** **had their branch committees among the convicts inside the prisons. Jail Superintendents and other officials were puppets in the hands of political leaders. The relevant portion of the report reads as follows:** **“From the discussion so far made it could be established beyond doubt that the Jail authorities flouted all the prevailing rules in granting parole. No proper records are maintained. Convicts were released on parole even before completion of two years actual imprisonment from their date of admission to Jail violating Kerala Prison Rules. Subsequent parole as ordinary leave were granted before expiry of six months after reporting back from the last parole. These are clear violation of Rules 452B of Kerala Prison Rule and Kerala Prison Manual. Convicts were released on parole as per request from office bearers of political parties and also on the leave applications placed by persons** **claimed themselves as friends without verification. These are likely to effect even the security of the prisoner. This is a clear violation of Rule 457 Kerala Prison Rules and Rule 597 of Kerala Prison Manual. Prisoners are seen granted parole as per recommendation of MLAs and as per directions given from political leaders who had 'a say' with Chief Minister's office. Prisoners over stayed after release on parole were granted parole before regularising the overstay violating rule 452BB of Kerala Prison Rules and Rule 615-7 of Kerala Prison Manual. Verification of the veracity of the ground on which leave requested has not been done except on very few instances and there by violated Rules.”** **It was specifically stated that convicts in political murder cases were getting all considerations. Most of them spending only about 50% of the imprisonment in jail and they were given leave and also granted remission violating the rules. It was** **reported that Rule 452BB empowers the Government to supersede all the rules without any restrictions, thus causing political parties in power to misuse it. It was also reported that though the emergency leave is intended to avail in very emergent situation, all the lifers are availing 45 days at a time without any other restriction based on manipulated medical certificates with the help of doctors and politicians. Many of them avail emergency leave of 45 days each three or four times a year since the Prison Rules is silent about total emergency leave permissible per year or the interval between such emergency leaves. The Director General of Police (Prisons) after referring to the report had stated as follows:** **“On a careful scrutiny of the Vigilance Enquiry report it is noted that the rules have been violated not only by the Superintendents of Prisons but also by the Higher officials, and also the Government have violated the existing rules in issuing parole repeatedly to politically influential prisoners.”** **29. The materials on record clearly establish that Rule 452BB is intended only to favour the criminals of political** **parties especially those in power. Since the rule is arbitrary and it confers unaided and uncontrolled power to the Government to favour the criminals of political party, Rule 452BB is to be quashed. We do so.** **30. Rule 461 deals with treatment of the period of leave. It provides that the period of leave shall be taken as period of sentence undergone provided the conditions of leave are not violated. If any or all of the conditions are violated the period spent on leave shall be taken as on bail. This part of the rule has no statutory backing or assuring. Bail can be granted to a convict only in accordance with the provisions of the Criminal Procedure Code. Section 432 of Cr.P.C. confers power on the State Government to suspend the sentence. The Prisons Acts do not contain any provisions. The Rules also does not contain any provision conferring power on the State to grant bail. A reading of Rule 461 shows that absolutely no guidelines are prescribed to treat the period spent on leave as period of bail. The Rules does not specify the authority who is competent to treat the period of leave as bail. If the conditions of leave are violated the leave is to be cancelled and period spent on leave is to be treated as unauthorised absence or absconding and appropriate action taken.** **31. The enquiry report submitted shows that proper registers and records are not kept. The Superintendent shall keep the copies of the medical certiciate or other records produced along with the application. He shall maintain a separate register showing all details of leave. The Sessions Judge/Chief Judicial Magistrate shall inspect the register at least once in a month.** **32. The Public Prosecutor had filed a statement showing the details of long time convicts who have never granted leave of any nature. We have directed the Government to place the details of those convicts before Jail Advisory Board. The state has contended that no Prison Review Committee has so far been constituted to consider and grant application for leave and they are functioning for the purpose of considering the case of premature leave. We are also fully aware of that fact. We have not directed the Committee to grant parole. Most of those convicts were denied of leave on the ground that either the report of the Probation Officer or Police are not favourable. At present the reports of the Police is accepted as such and there is no method to verify the correctness of those reports. The Committee can consider the details of the convicts and summon the Officers and convicts and take evidence. The** **Committee can request the Sessions Judge who is the Chairperson of the District Legal Service Authority to contact the relatives/friends of the convict. The Legal Service Committee concerned should make enquiries and render legal assistance to the relatives/friends of the convict in the matter and make suitable recommendation to the competent authority. So the State shall direct the Superintendents of Jails to place the details of the convicts before the existing Jail Advisory Board or shall constitute a Committee for that purpose. The Advisory Board/Committee shall conduct necessary enquiries and make suitable recommendations. The competent authority shall take into account all such recommendations and pass appropriate orders in accordance with Rules in the subsequent leave applications filed by those convicts.** **33. It is brought to our notice that whatever be the period of overstay, that overstay is being treated as leave. Rule 461 does not contain any provision which confers authority on any officer or even the Government to treat the period of overstay as leave. It is true that in Rule 452BB(vii) provides that a person who overstays is not entitled to leave unless the Government satisfied that that overstay is to be** **regularised as leave. It only provides that a person who overstayed is ineligible for another leave if that is regularised as leave. But there is no provision in the Rules which confers power to anybody to pass orders treating overstay as leave. Further Sub-rule (vii) of Rule 452BB is applicable to emergency leave and not to any other kind of leave.** **34. Every person who is released on leave shall return to jail on the expiry of the leave. If a person who is on leave does not return to jail on the expiry of the same he must be treated as absconding. The period of overstay cannot be treated as leave on bail. Such a person is treated as absconding and criminal case registered against him for his unauthorised absence.** **35. One of the grounds stated for granting emergency leave is serious illness. The enquiry report submitted by the Director of Vigilance shows that emergency leave is granted on the strength of fake or false certificates. According to the respondents there is no mechanism to verify the correctness of the certificates. There is vital distinction between serious illness and seriously ill person. A person may suffer from serious disease but his condition need not be serious. A person may be suffering from a serious illness such as cancer** **or tuberculosis, but that does not mean that the condition of that person may not be serious. The purpose of granting emergency leave to give an opportunity to the prisoner to see a person who is critically ill. The materials on record shows that even without seeing the patients the Doctors are issuing certificates to the effect that a relative of the prisoner is suffering very serious illness. In fact in one case the doctor had filed statement before this Court stating that he had issued certificate on humanitarian ground. A large number of instances wherein emergency leave was obtained on the strength of false or fake certificates are brought to our notice. No action is taken against the erring doctors because the certificates are issued due to money power or political power. It is true that it may not be possible for the competent authority to verify the correctness of the certificate before granting such leave. But nothing prevents such authority from conducting an enquiry subsequently through Police regarding the correctness of the certificate. We had already directed that whenever an application seeking extension is filed in a case the party files an application seeking extension, the genuineness of the certificate produced shall be ascertained. If a Doctor helps a criminal to get leave which he is not** **otherwise entitled, he should also be treated as criminal. His act of issuing a false or fake certificate to obtain an order in favour of the convict is a criminal offence. So if it is revealed that the medical certificate issued is a fake or false, the doctor who issued the certificate shall be prosecuted for committing such an offence by the competent authority in accordance with law. It is a serious misconduct warranting imposition of major penalty. In case it is revealed that the medical certificate produced is false or fake that fact shall be reported to the Director of Health Services or Director of Medical Education. The competent authority shall initiate departmental disciplinary action against the doctors who issues false or fake certificates.** **36. The High Level Committee had held that release from a prison a person undergoing judicial sentence is a serious matter. High Level Committee had cautioned the exercise of power to grant leave. It held as follows:** **“Victimology is a developing branch of criminology. The victims of crime, the witnesses who depose to the crime at the trial, the close relations of the murdered person and the people of the locality** **where, in a faction fight or communal conflict, the crime has been committed, leaving bitter feeling burning, have a voice in the criminal being out at large lest their safety be imperilled or even the offender's safety is in jeopardy out of reprisal. In such a view, it is but fair that these affected people are consulted before the crime-doer is enlarged on parole or otherwise. It is, therefore, just and fair that a probation officer and/or social welfare institutional enquiries in the locality of the victim and reports to the jail authorities about the propriety of the parole or release contemplated. Even the timing of release may have to be carefully considered, lest a wholesome objective be defeated by a tactless step.”** **In Mrs.Selin Joseph v. State of Kerala (1990 (1) KLN 43) it was held as follows:** **“Grant of parole was made without serious or perhaps no thought. That** **ought not to be. Segregation of offenders is one of the acknowledged norms of criminal justicing system. If crime is rendered inconsequential, justice system itself would invite ridicule, as has been pointed out by the Supreme Court, time and time again. Besides, the aggrieved would lose confidence in the system of criminal justicing, and would seek private vengeance.”** **37. Even though a humane approach is to be made in the matter of granting leave the authority shall not forget the fact that the convicts are not enjoying a holiday in Jail, they were found guilty of a criminal offence and sentenced to undergo imprisonment. The purpose of sentencing a person is to rehabilitate him. By granting indiscriminate leave the very purpose of imposition of sentence on one accused will be defeated. Though the convicts are entitled to emergency leave the same cannot be allowed to make criminal justice system mockery by giving undue favours to the criminals of political parties. The Writ Petitions are disposed of in the following manner:** **(1). The prayer to quash Section 59 of the Prisons Act, 1894 and Section 59 of the Travancore - Cochin Prisons Act is rejected.** **(2). Rule 452BB of the Kerala Prisons Rules, 1958 is quashed.** **(3). That part of the Rule 461 which provides that “in case if any or all of the conditions are violated the period spent on leave shall be taken as on bail” is quashed. If the prisoner violated conditions the leave granted is to be cancelled and the person is to be recalled, if necessary, by arrest. The period spent on leave shall be treated as unauthorised absence.** **(4). It is declared that neither the officers nor the Government have any power to treat the period of overstay as leave or bail. If a person who is released on leave fails to report back to Jail within the time allowed further action immediately can be taken for his arrest and production before the Jail authorities and appropriate criminal action taken against him.** **(5). Emergency leave on the ground of illness shall be granted only on proof of critical illness to any person specified in the Rules whose condition is serious. Such leave shall be** **granted only to the minimum required time. It shall not be indiscriminately granted. If emergency leave is to be granted for more than two occasions in a year such leave shall be adjusted towards future regular leave and duration of regular leave shall be reduced to that extent. The Superintendents of Jails shall maintain records and keep a separate register which shall contain the details of leave.** **(6). The State shall either constitute a Committee for the purpose of considering the case of the convicts who have never been granted leave or place the details of those convicts before the Jail Advisory Board. The Board shall consider individual cases and make suitable recommendations to the competent authority for appropriate action.** **K. PADMANABHAN NAIR, JUDGE.** **cks**