Yasmeen Mohammad Zahid @ Yasmeen v. Director General of Prisons and Correctional Services and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT` ## `THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 4[TH] DAY OF AUGUST 2023 / 13TH SRAVANA, 1945 WP(C) NO. 16245 OF 2019` ## `PETITIONER:` ``` YASMEEN MOHAMMAD ZAHID @ YASMEEN AGED 31 YEARS, D/O. MOHAMMAD ZAHID, MUROUL VILLAGE SITHAMARHI, BIHAR, (BAJPATTY POLICE STATION, PRESENTLY UNDERGOING SENTENCE IN WOMEN’S PRISON, VIYYUR. BY ADVS. K.N.ABHILASH SRI.SUNIL NAIR PALAKKAT SRI.M.A.AHAMMAD SAHEER SRI.P.B.MUHAMMAD AJEESH SRI.M.M.ALIYAR ``` ## `RESPONDENTS:` ``` 1DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL SERVICES PRISONS HEAD QUARTERS, POOJAPPURA, THIRUVANANTHAPURAM, PIN – 695 012. 2SUPERINTENDENT WOMEN'S PRISON AND CORRECTIONAL HOME, VIYYUR, THRISSUR DISTRICT, PIN – 680 009. 3STATE OF KERALA REPRESENTED BY HOME SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001. *R4UNION OF INDIA REPRESENTED BY SUPERINTENDENT OF POLICE, NATIONAL INVESTIGATION AGENCY, KOCHI -682 020. *( ADDL. R4 IS IMPLEADED AS PER ORDER DATED 24.07.2023 IN IA.NO.1/2023 IN WP© NO.16245/2019). BY GOVERNMENT PLEADER PUBLIC PROSECUTOR - SRI.NOUSHAD K.A, CGC – SRI.V. GIREESH VARMA ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP (C). No. 16245 of 2019 2 ## **BECHU KURIAN THOMAS, J.** **…………………...……………………… WP (C). No. 16245 of 2019** **………………………………..……………………… Dated this the 4[th ] day of August, 2023** ## **JUDGMENT** Petitioner is a convict. She challenges an order dated 27.12.2018 rejecting her claim for remission for the reason that she was convicted for an offence under a Central enactment. Petitioner also seeks for a declaration that she is entitled to all statutory remissions. 2. Petitioner was the 2[nd] accused in S.C. No.1/2017, before the Special Court for Trial of NIA cases. She was convicted and sentenced to undergo imprisonment for seven years for the offences punishable under Sections 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 (for short, ‘the UAPA’) and also under Section 120B of the Indian Penal Code, 1860. 3. In the appeal preferred before this Court, the conviction and sentence imposed upon the petitioner were modified and reduced to three years for the offence punishable under Section 38 of the UAPA apart from Section 120B of the IPC. However, on further challenge by the National Investigation Agency (NIA) WP (C). No. 16245 of 2019 3 before the Supreme Court, the sentence imposed by the Trial Court for the offence under Section 38 was restored. Thus petitioner stands convicted and sentenced for a period of seven years under Section 38 of UAPA. 4. In the meantime, petitioner claimed remission as provided under Kerala Prisons and Correctional Services (Management) Act, 2010 ( for short ‘the Act’) read with Kerala Prisons and Correctional Services (Management) Rules, 2014 (for short ‘the Rules’) and contended that, by law, she is eligible to be given two days' leave for every month she has been in prison. It was submitted that since the petitioner has already undergone more than six years and eight months in prison, she ought to be released from prison after being given the benefit of remission. Petitioner also alleged that by Exhibit P1 order, her claim for ordinary leave was rejected by the third respondent, pointing out that the order of the Central Government is necessary for granting remission. This writ petition was filed challenging the said order. 5. At the time when the writ petition was filed, the imprisonment imposed upon the petitioner was only for three years, and she claimed remission. However, since the NIA had WP (C). No. 16245 of 2019 4 taken up the case in appeal to the Supreme Court, the writ petition was not brought up for consideration. Thereafter the Supreme Court restored the sentence to seven years imprisonment, and hence petitioner continued in prison. This writ petition has now been brought up for consideration, claiming that even if the imprisonment is for seven years, petitioner would still be entitled to be released from prison due to the benefit of remission available under the law. 6. A statement was filed in the year 2019 by the second respondent pointing out that a disciplinary proceeding was initiated against the petitioner and by order dated 29.2.2019, she was transferred to another jail. It was also pointed out that ordinary remission is not available to the petitioner since such a benefit is available only if the convict's behaviour and conduct are good. 7. Sri. Noushad K.A, the learned Public Prosecutor, however, submitted that by virtue of Rule 381, petitioner was eligible for 46 days of remission due to her work in the prison. 8. Sri. S.Manu, learned Deputy Solicitor General of India, on the other hand, contended that, even though petitioner was convicted under the UAPA, the prison rules of each State govern WP (C). No. 16245 of 2019 5 the grant of ordinary remission and, therefore, the permission of the Central Government in that regard under the Act is not essential for claiming ordinary leave. 9. I have considered the rival contentions. 10. By Exhibit P1 order, petitioner’s claim for remission was rejected, relying upon Rule 389(c) of the Rules, stating that permission from the Central Government is essential. Undoubtedly for the grant of ordinary remission as per Section 72 of the Act read with Rule 376 and Rule 379 of the Rules, the permission of the Central Government is not essential. Even if the accused was convicted for an offence under a Central enactment, such a prescription is not contemplated under law. The distinction between remission under Section 432 of the Cr.PC and Rule 376 of the Rules have already been considered by this Court in **Subaida and Others v. State of Kerala and Others** 2020 (1) KLT 385. Therefore, the rejection of the claim for ordinary remission of the petitioner, as per Exhibit P1, for the reason that permission from the Central Government is required, is arbitrary and illegal. 11. Contention of the learned Public Prosecutor that due to the disciplinary proceedings initiated against the petitioner in WP (C). No. 16245 of 2019 6 2019, she is ineligible to be granted ordinary remission under Rules 376 and 379 of the Rules, though impressive at first blush, on a deeper analysis, it lacks merit. By an alleged disciplinary proceeding dated 29.03.2019, the petitioner was transferred from Women’s Prison, Thiruvananthapuram, to Women’s Prison, Viyyur. However, there is nothing to indicate that the said transfer was due to bad behaviour or bad conduct. Further, the transfer was in the year 2019, and more than four years have elapsed since then. A mere transfer from one prison to another cannot be regarded as enfeebling his claim for remission under Rule 476 of the Rules. 12. Good behaviour and good conduct are terms that can be widely interpreted. The manner of construction of these terms can be an arbitrary tool in the hands of the authorities to pick and choose convicts for granting or denying the benefit of remission. Such an arbitrary exercise of power will be opposed to the rule of equality under Article 14 of the Constitution. Good behaviour and good conduct are terms which must be perceived objectively. A prisoner confined within the walls of a prison may express himself or react to situations differently. Every strange expression or reaction cannot by itself be termed as impairing a WP (C). No. 16245 of 2019 7 prisoner's claim for remission under Rule 476 of the Rules. Therefore, good behaviour and good conduct must be interpreted contextually and objectively. 13. In the light of the above consideration, Exhibit P1 shall stand set aside. Since petitioner claims that she has already completed more than six years and eight months out of her seven-year imprisonment, it is essential that the competent authority decides upon her claim for remission afresh in a timebound manner. Therefore the 2[nd] respondent is directed to take a fresh decision on the eligibility of the petitioner to be granted ordinary remission in the light of the observations made in this judgment and as per Rule 376 read with Rule 379 of the Rules. A decision as directed above shall be taken within a period of 10 days from the date of receipt of a copy of this judgment. The writ petition is allowed to the above extent. **Sd/-** **BECHU KURIAN THOMAS JUDGE** Rvm WP (C). No. 16245 of 2019 8 ## `APPENDIX OF WP(C)NO.16245/2019` ``` PETITIONER’S EXHIBITS ``` ``` EXHIBIT P1 ``` ``` TRUE COPY OF THE LETTER DATED 27.12.2018 TO SUPERINTENDENT, WOMEN’S PRISON AND CORRECTIONAL HOME, THRIRUVANANTHAPURAM REJECTING THE APPLICATION FOR REMISSION OF SENTENCE. ```