WP(C) Nos. 15868 of 2021 & 16609 of 2021 (Renju @ Renjith; Jaseentha George @ Jyothi; Thomas Kutty @ Aji; Thomas @ Thomachan v. State of Kerala & Others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 12[TH] DAY OF AUGUST 2021 / 21ST SRAVANA, 1943** ## **WP(C) NO. 15868 OF 2021** ## **PETITIONER:** **RENJU @ RENJITH, AGED 37 YEARS S/O. RAJENDRAN, VALLIVATTATHU HOUSE, ANANDAPURAM DESOM, THRISSUR-680683** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.K.VARGHESE SRI.K.R.ARUN KRISHNAN SMT.SANJANA RACHEL JOSE SRI.P.S.NISHAD** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL SERVICES, PRISONS HEADQUARTERS, KERALA, POOJAPPURA, THIRUVANANTHAPURAM-695 012** - **3 SUPERINTENDENT. CENTRAL PRISON, KANNUR, KANNUR, PIN-674004** **BY ADV SRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI.P.NARAYANAN, SPECIAL PROSECUTOR WITH DGP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.08.2021, ALONG WITH WP(C).16609/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P(C)Nos.15868 & :2: 16609 of 2021** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 12[TH] DAY OF AUGUST 2021 / 21ST SRAVANA, 1943** **WP(C) NO. 16609 OF 2021** ## **PETITIONERS:** - **1 JASEENTHA GEORGE@JYOTHI AGED 67 YEARS** - **D/O P.V.GEORGE, W/O VINODKUMAR, PTHANANIKKAL HOUSE, 48/1661,A2,VYSHNAVAM FLAT, VALIYAPARAMBA ROAD, ELAMAKKARA, KANAYANNUR THALUK, ERNAKULAM DISTRICT-682026, C NO.26,POOJAPPURA W0MEN OPEN PRISON AND CORRECTIONAL HOME, THIRUVANANTHAPURAM-695012.** - **2 THOMAS KUTTY @ AJI, AGED 41 YEARS** - **S/O DEVASYA THOMAS, MOOLAYIL VEEDU, NORTH EASTERN SIDE OF CONVENT JUNCTION,KALUTHU WARD, ALAPPUZHA DISTRICT-688802, C NO.1242, POOJAPPURA CENTRAL PRISON AND CORRECTIONAL HOME, THIRUVANANTHAPURAM-695012.** - **3 THOMAS @ THOMACHAN, AGED 63 YEARS S/O.POTHA, AASARIKKALAYIL HOUSE, PARASSERI BHAGOM, NJEEZHOOR KARA, NJEEZHOOR VILLAGE,** **KOTTAYAM DISTRICT - 686612, C NO. 2116,POOJAPPURA CENTRAL PRISON AND CORRECTIONAL HOME, THIRUVANANTHAPURAM-695012.** **BY ADVS.** **SRI P.K.VARGHESE SRI. K.R.ARUN KRISHNAN SRI.MATHEW DEVASSI** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.** **W.P(C)Nos.15868 & :3: 16609 of 2021** - **2 DIRECTOR GENERAL OF PRISONS & CORRECTIONAL SERVICES, PRISONS HEADQUARTERS,KERALA, POOJAPPURA, THIRUVANANTHAPURAM-695012.** - **3 SUPERINTENDENT, POOJAPPURA WOMEN OPEN PRISON AND CORRECTIONAL HOME, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM-695012.** - **4 SUPERINTENDENT, POOJAPPURA CENTRAL PRISON AND CORRECTIONAL HOME,THIRUVANANTHAPURAM-695012.** - **5 THE HIGH POWER COMMITTEE, CONSTITUTED AS PER THE DIRECTION OF HON'BLE SUPREME COURT OF INDIA FOR THE RELEASE OF PRISONERS IN STATE OF KERALA. REP. BY ITS EXECUTIVE CHAIRMAN.** ## **OTHER PRESENT:** ## **SRI.P.NARAYANAN, SPECIAL PROSECUTOR WITH DGP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.08.2021, ALONG WITH WP(C).15868/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P(C)Nos.15868 & :4: 16609 of 2021** **K.Vinod Chandran & Ziyad Rahman A.A., JJ. -----------------------------------------W.P(C)Nos.15868 of 2021-G & 16609 of 2021-A -----------------------------------------Dated this the 12[th] August 2021** ## **JUDGMENT** **Vinod Chandran, J.** **Both the writ petitions challenge the order of the Government dated 06.08.2021 restricting the ordinary leave granted to prisoners up to 23.08.2021; which order is produced in WP(C) 16609/2021. The learned Special Prosecutor Sri Narayanan has taken instruction in W.P(C) No.15868/2021 and hence, we considered the same first.** **2. The petitioner is a life convict undergoing imprisonment in the Central Jail, Kannur. The petitioner contends that the parole granted to the petitioner was in pursuance of the order dated 23.03.2020 of the Hon'ble Supreme Court which directed constitution of High Powered Committees in every State to determine the category of prisoners who should be released depending upon the nature of offence, the number of years to which he/she has been sentenced, the severity of offences which he/she is charged with, the stage of trial and any other relevant factors which the Committee thinks appropriate. The parole granted to the** ## **W.P(C)Nos.15868 & :5: 16609 of 2021** **prisoners by the High Powered Committee by virtue of the orders of the Hon'ble Supreme Court cannot be interfered with by the State Government is the argument of Sri.P.K Varghese, learned counsel appearing for the petitioners. The learned Special Prosecutor however, submits that the petitioners herein were not released by the High Powered Committee and they were on ordinary leave, which the Government in its discretion extended by reason of the pandemic situation. The Government is competent to restrict the leave so granted and extended. The petitioners are all life convicts who do not fall under the ambit of the category of prisoners directed to be released by the High Powered Committee.** **3. Ext.P1 is the order of the Hon'ble Supreme Court dated 07.05.2021. At para 3 reference is made to the earlier order of 23.03.2020 and the directions issued to the State Governments and Union Territories to constitute High Powered Committees to determine the class of prisoners who can be released on parole or on interim bail for appropriate periods. According to the learned Counsel, the Hon'ble Supreme Court specifically directed the High Powered Committees to take into account the directions contained in para No.11 of the judgment in** _**Arnesh Kumar vs. State of Bihar 2014(8) SCC 273]**_ **which is with respect to the arrest of** **W.P(C)Nos.15868 & :6: 16609 of 2021** **persons accused in criminal cases. Even while laying down such guidelines in para 12 it was specifically declared so .** **“12.We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.”** **The above directions from the cited decision are only on arrest of persons accused in criminal cases and not with respect to release of prisoners on parole.** **4. Learned Special Prosecutor has produced before us the recent order issued by the High Powered Committee dated 09.05.2021:** **“To be precise those prisoners remanded/convicted, incarcerated in various jails in Kerala who have been accused/who were accused, in connection with commission of offences punishable with imprisonment up to ten years or less, with or without fine but without criminal antecedents, previous conviction or who are under trial/remanded in more than one case and not belonging to (1) Prisoners charge sheeted** **W.P(C)Nos.15868 & :7: 16609 of 2021** **for offences under section 20(b)(ii)B of NDPS Act; (2) Prisoners charge sheeted for offences under the POCSO Act (read with IPC offences) punishable with ten years; (3) Prisoners charge sheeted for offences under sections 372, 373, 376 and 366A and 392 if committed on the Highway between sunrise and sunset, either released earlier or recommended to be released shall be released either on parole or on interim bail subject to conditions imposed/decided to be imposed.”** **Only those category of prisoners as directed by the High Powered committee were released by virtue of the orders of the Hon'ble Supreme Court, whose return to the prison will definitely be subject to the orders issued by the High Powered Committee or the Hon'ble Supreme Court.** **5. The learned Counsel for the petitioner had referred to an earlier instance of a challenge raised having been decided by a learned Single Judge of this Court finding the Government to be not competent to interfere with the orders issued by the High Powered Committee. The said judgment dt 22.12.2020 in W.P(C) No. 23595/2020 and connected matters was produced before us across the Bar. On a reading of the same we find that therein the release of the prisoners** **W.P(C)Nos.15868 & :8: 16609 of 2021** **was under the orders issued by the High Powered Committee which later was withdrawn by the Committee itself. The learned Single Judge refused to interfere and rejected the writ petitions. We find the said judgment to have no application in the case of the petitioners whose release was not under the directions issued by the High Powered Committee.** **6. On facts, the petitioner in W.P(C) 15868/2021 is a life convict who was released on 26.04.2021 for twenty days in accordance with the Kerala Prisons and Correctional Services (Management) Act and Rules. The petitioner's leave was extended for ninety days and after leave, he was supposed to surrender on 06.08.2021, on which date the Government has now again extended the period up to 23.08.2021 as per the impugned order in W.P(C) 16609/2021. Similar are the facts concerning the petitioners in the other writ petition also, all of whom are life convicts undergoing imprisonment in the Women Open Prison and Correctional Home, Poojappura and Central Prison and Correctional Home, Poojappura respectively, both at Thiruvananthapuram. We do not find any reason to interfere with the directions issued by the Government either on the extension or on the date specified for return to the prisons. The writ petitions would** **W.P(C)Nos.15868 & :9: 16609 of 2021** **stand rejected. We hasten to add that the rejection of these writ petitions would not stand in the way of the Government extending the leave further; if on the pandemic or any other situation, the Government finds it expedient.** **Sd/K.Vinod Chandran, Judge** **Sd/Ziyad Rahman A.A., Judge** **jma/-** **W.P(C)Nos.15868 & :10: 16609 of 2021** ## **APPENDIX OF WP(C) 15868/2021** PETITIONER EXHIBITS Exhibit P1 Exhibit P1 A TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT DATED 07.05.2021 IN SUO MOTO WRIT PETITION NO.1/2020 Exhibit P2 A TRUE COPY OF THE ORDER DATED 16.07.2021 PASSED BY THE HON'BLE SUPREME COURT IN SUO MOTO WRIT PETITION @ NO. 1/2020 **W.P(C)Nos.15868 & :11: 16609 of 2021** ## **APPENDIX OF WP(C) 16609/2021** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT, DATED 07/05/2021 IN SUO MOTO WRIT PETITION @ NO./2020 Exhibit P2 A TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREMECOURT IN SUO MOTO WRIT PETITION @ NO.1/2020 DATED 16.07.2021 Exhibit P3 A TRUE COPY OF THE ORDER DATED 06/08/2021 ISSUED BY THE JOINT SECRETARY OF 1ST RESPONDENT OFFICE.