WP(C) Nos. 9323/2019 and 11434/2021 – Pradeep K. v. State of Kerala; Prasad K. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** ## **MONDAY, THE 20[TH] DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943** ## **WP(C) NO. 9323 OF 2019** ## **PETITIONER:** **PRADEEP.K., AGED 32 YEARS** **S/O P KRISHNAN, C NO 9302, CENTRAL PRISON, VIYYUR, THRISSUR DISTRICT** **BY ADVS. P.K.VARGHESE SRI.P.S.ANISHAD** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVT. SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL SERVICES, PRISON HEAD QUARTERS, POOJAPPURA, THIRUVANANTHAPURAM-695 012.** - **3 SUPERINTENDENT, CENTRAL PRISON, VIYYUR, THRISSUR DISTRICT-680 010.** **PP - SRI. M.C.ASHI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 29.11.2021, ALONG WITH WP(C).11434/2021, THE COURT ON 20.12.2021 DELIVERED THE FOLLOWING:** WP(C)s.9323/19 & 11434/21 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **MONDAY, THE 20[TH] DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943 WP(C) NO. 11434 OF 2021** ## **PETITIONER:** **PRASAD K** **AGED 40 YEARS** **S/O. P. KRISHNAN, BAGAVATHIPARAMBIL HOUSE, KANNAMBRA P.O., PALAKKAD DISTRICT-678686.** **BY ADVS. P.S.ANISHAD P.K.VARGHESE** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 SUPERINTENDENT,** **HIGH SECURITY PRISON, VIYYUR, THRISSUR DISTRICT-680010.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 29.11.2021, ALONG WITH WP(C).9323/2019, THE COURT ON 20.12.2021 DELIVERED THE FOLLOWING:** WP(C)s.9323/19 & 11434/21 3 ## **JUDGMENT** As identical questions are involved, both these writ petitions were heard together and are disposed of by this common judgment. 2. Petitioner in W.P(C) No.9323/2019, Pradeep K., is a life convict undergoing imprisonment in Central Prison, Viyyur from 16.07.2009 onwards, after convicted by the Sessions Court, Thrissur in S.C.1013/2007 alleging offence under Sections 302, 394 and 201 of IPC. Ever since he had gone to the jail in 2009 has never been granted parole or any other leave. Earlier he had moved W.P(C) No.2373/2016 along with another seeking the same relief, which was dismissed and Writ Appeal No.984/2016 was dismissed by Ext.P1 order. Then, on 31.10.2015 he filed an application before the 2[nd] respondent seeking parole, which was dismissed by Ext.P2 order. Thereafter he submitted Ext.P3 representation, pursuant to which a report was called for by the 2[nd] respondent from the 3[rd] respondent, in response Ext.P4 was given. But so far the 2[nd] respondent has not taken a decision on the representation. In all probability it would be rejected by the 2[nd] respondent. In the absence of any condition under Rule 397(l)(ii) of the Kerala Prisons and Correctional Services (Management) Rules, 2014, hereinafter referred to as the Rules, the WP(C)s.9323/19 & 11434/21 4 respondents will not consider the application for parole and the petitioner has no alternative efficacious remedy than to approach this Court. Therefore he seeks the following reliefs: “ 1. Issue a writ of mandamus directing 1[st] and 2[nd] respondents to constitute procedure and conditions for Rule 397(l)(ii) of Kerala Prisons and Correctional Services (Management) Rules, 2014. 2. Issue a writ of mandamus directing the 2[nd] respondent to consider Ext.P3 expeditiously in favour of the petitioner by imposing conditions as envisaged in S.73, S.76, S.78 of Kerala Prisons and Correctional Services (Management) Act, 2010.” 3. Petitioner in W.P(C) No.11434/2021 is the brother of the said Pradeep. According to him, in spite of the fact that the Superintendent, Central Prison, Viyyur has given a favourable report to the Director General of Prisons and Correctional Services, no decision has yet been taken. The brother of the petitioner is continuing in prison for more than thirteen years without getting parole. Denial of parole to such a prisoner is illegal. His mother is suffering from various ailments like diabetes mellitus type 2, hypertension etc. She is totally bed ridden. His brother could not see the father who died during his incarceration. Referring to Ext.P2 medical certificate the petitioner wanted to convince the court that WP(C)s.9323/19 & 11434/21 5 there must be someone to take care of the mother and therefore he seeks issuance of a writ of mandamus directing the respondents 1 and 2 to release his brother for five days. 4. I heard the learned counsel for the petitioners as well as the learned Public Prosecutor. 5. According to the learned counsel, keeping such a person in prison for more than thirteen years from 16.07.2019 onwards without granting any leave or parole is illegal and violative of the basic human rights. According to him, the convict could not meet the last days of his father, at last he was taken to see the dead body on escort parole; in order to prevent repetition of such a mishap he seeks to grant at least five days' parole to the convict in exercise of the extraordinary jurisdiction of this Court. 6. Referring to the decisions reported in **Asfaq v. State of Rajasthan and others** [AIR 2017 SC 4986] and **Mohammed Shamsuddin v. State of Rajasthan and others** [2019 KHC 7419], he reiterated the need for granting periodical parole to the prisoners, which is one of the facets of reformatory approach. Referring to the report of the Superintendent dt. 16.04.2018 the learned counsel pointed out that the WP(C)s.9323/19 & 11434/21 6 petitioner is leading a peaceful, law abiding incarceration at the jail; the jail officials have very good opinion about him, reports of the Probation Officer and police are also favourable to him, during his incarceration he had taken graduation in Sociology and now he is doing post graduation. In spite of all such favourable conditions, relying on conditions in Rule 397(l) (ii) of the Rules, his legitimate rights are being denied. The learned counsel also submitted that Section 99(2)(i) and clause (xxxi) of the Kerala Prisons and Correctional (Management) Act, the Act for short, provides for making rules touching the conditions subject to which any prisoner may be released on parole under Section 73. Referring to sub-clause (xxxii) to Section 2 he said that this provision also mandates making of rules prescribed by the Act and the Rules. These provisions were not intended to deny parole to the prisoners. Hence he seeks a direction to the respondents to constitute procedure and conditions under the Rules. 7. The learned counsel suggested that in the absence of prescribed rules the Court may issue positive directions to the respondents to form rules to meet the rights of such prisoners who are similarly placed. 8. The learned Public Prosecutor has opposed the petitions. According to him, there are provisions in the Act and the Rules to meet the WP(C)s.9323/19 & 11434/21 7 situation. Even if a prisoner is not entitled to get ordinary leave or parole, in an emergent situation Rule 415 of the Rules provides for granting escort parole to such convicts; in fact such parole was given to the petitioner at the time of death of his father. According to him, Constitutional validity of Rule 397(l)(ii) has already been upheld by this Court and therefore the petitioner cannot be granted any relief. 9. The petitioner Pradeep is a life convict. He was convicted and sentenced by the Sessions Court, Thrissur in S.C.1013/2017; by judgment dt. 18.07.2009 he was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.5 lakhs, in default rigorous imprisonment for five years for offence under Section 302 of the IPC and also imprisonment for life and to pay a fine of Rs.4 lakhs, in default to undergo rigorous imprisonment for four years for offence under Section 392 read with 397 of the IPC and rigorous imprisonment for seven years and to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for one year under Section 201 of the IPC with a direction that substantive sentences shall run concurrently. Both this Court as well as the Apex Court dismissed the appeals preferred by him. Thus from 18.07.2009 onwards he is undergoing imprisonment in Central Prison, Viyyur. Section 78 of the WP(C)s.9323/19 & 11434/21 8 Act provides for granting 'leave 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 treatment in such manner and subject to such conditions, as the case may be prescribed'. Rules 2014, formulated under Section 99 of the Act are in force. Rule 397 refers to the leaves which can be granted to prisoners. Rule 397(l) provides that habitual offenders and those who are undergoing sentence for offences under Sections 392 to 402 of the IPC etc. are not entitled to get leave. Similarly, Rule 400(7) also interdicts granting of any leave to such category of convicts. 10. All the same, Section 79 of the Act provides for granting escort visit to the prisoners who are not eligible for the required kind of leave under such circumstances as may be prescribed in the Rules for a maximum period of 24 hours excluding journey time. 11. In other words, the Act and the Rules clearly indicate that those categories mentioned under Rules 397(l)(ii) and 400(7) are not entitled to get any kind of leave. As mentioned earlier, leave provided under Section 78 can be given only to those convicted prisoners who are eligible to be granted leave. WP(C)s.9323/19 & 11434/21 9 12. The nature of conviction and sentences imposed on the petitioner clearly indicates that the allegations against him are very serious and grave. He stands convicted at least on three counts. Even though the petitioner is a youngster and reportedly having good behaviour in the prison, nature of the conviction stands against him, making him ineligible for applying for ordinary leaves. 13. It cannot be said that causes of similarly situated prisoners have not been taken care of in the statute. It has been specifically stated, having regard to the nature of offence alleged against them, that such categories are not entitled to get any kind of leave. At the same time, they are entitled to get emergency leave in the nature of escort parole in special eventualities. 14. It is the common case that the Constitutionality of Rule 397(l) (ii) has been considered and upheld by this Court. It is true that the Hon'ble Supreme Court has granted parole to some of the prisoners in the decisions referred above. But those were done invoking the plenary powers of the Apex Court. 15. The learned Public Prosecutor has submitted that the report made by the Superintendent was considered and rejected by the Director WP(C)s.9323/19 & 11434/21 10 General of Prisons and Correctional Services. Therefore second relief also cannot be granted. Since the Act and the Rules take care of cases of the petitioner as well, there does not arise issue of writ of mandamus for constituting separate procedure. Therefore, W.P(C) No.9323/2019 is liable to be dismissed. Dismissed. 16. However, taking into account the fact that the mother of the petitioner is suffering from various ailments, invoking extraordinary jurisdiction of this Court he shall be granted escort parole for one day each in three consecutive months enabling him to visit his mother. First such parole shall be granted within a period of one month from today; subsequent paroles will be given after an interval of 30 days. W.P.(C) No.11434/2021 is disposed of as above. ## Sd/- **K. HARIPAL** okb/14.12.21 //True copy// P.S. to Judge WP(C)s.9323/19 & 11434/21 11 ## **APPENDIX OF WP(C) 9323/2019** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE JUDGMENT OF THE WIT APPEAL NO 984/2016 EXHIBIT P2 A TRUE COPY OF THE REJECTION ORDER OF THE 2ND RESPONDENT, DATED 23.11.2015 EXHIBIT P3 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 4.4.2018 EXHIBIT P4 A TRUE COPY OF THE REPORT DATED 16.4.2018 GIVEN BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT WP(C)s.9323/19 & 11434/21 12 ## **APPENDIX OF WP(C) 11434/2021** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE REPORT DATED 16/04/2018 GIVEN BY THE SUPERINTENDENT OF CENTRAL PRISON, VYYUR TO THE DIRECTOR GENERAL OF PRISON AND CORRECTIONAL SERVICES, THIRUVANANTHAPURAM. Exhibit P2 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE DOCTOR, TALUK HQ HOSPITAL, ALATHUR ,PALAKKAD DISTRICT, DATED 03/06/2021.