Purposeful Attempts By Jail Authorities To Create Impression That Convict Is Not Well-Behaved And Deny Leave/Parole Is Illegal: Kerala High Court

Justice Bechu Kurian Thomas, while allowing a petition seeking ordinary leave for a convict, observed that

“There has been an attempt to purposely deny leave to the petitioner by resorting to an unfair procedure. The action is, no doubt, to create an impression that petitioner is not a well-behaved person and in turn to deny leave to him. The procedure adopted is illegal…an eligible convict is entitled to be granted leave for 60 days in a year as per Rule 397 of the Rules read with section 78 of the Act. If the conditions for leave as prescribed in the statute are satisfied, the discretion to grant leave must be exercised in his favour as it will partake the character of a right itself”.

The Court in this case was considering two writ petitions seeking grant of ordinary leave to a life convict who had been released on ordinary leave on 16 occasions earlier and had never violated any of the conditions of leave. One of the petitions was filed by the convict himself, while the other was filed by the brother of the convict.

It is the petitioner’s case that he was being denied leave at the instance of another convict, namely, Muhammed Nisham. The petitioner alleged that after he had complained against Nisham, when the latter purposely injured him, false cases were registered against him. The Jail Superintendent refused to grant leave to the petitioner.

The petitioner averred that until he had raised a complaint against Nisham, there was never any adverse report or remark against him and he was always released on leave as per law. However, he pointed out that after the complaint against Nisham was raised, the petitioner faced hostile attitude inside the prison. Pursuant to the petitioner’s brother filing a writ, the Court had directed the Jail Superintendent to file a counter affidavit. At this juncture, Nisham’s wife had also sought to be impleaded in the writ petition and raised an objection about the maintainability of the writ petition filed by the brother of the petitioner.

It was submitted by the petitioner that on the date of filing of the counter affidavit by the Superintendent, false proceedings were initiated against the petitioner for an incident that was alleged to have occurred on February 11, 2023, and an order was issued hastily cancelling 30 days remission earned by the petitioner, on the allegation that he had supplied a beedi to another convict by the name of Venugopal. The petitioner averred that he only came to know about the same and the disciplinary proceedings when a statement was filed before the Court. It is thus the case of the petitioner that he is being victimized in the jail, and subject to arbitrary treatment and prejudicial proceedings only because of the influence wielded by Nisham, and also that he has a right to be considered for ordinary leave.

On the other hand, it was argued by the respondents that the punishment of forfeiture of 30 days remission was imposed as per proceedings under Section 82D of Kerala Prisons and Correctional Services (Management) Act, 2010 (hereinafter, ‘Act, 2010’). It was also contended that as per Rule 397 of the Kerala Prisons and Correctional Services (Management) Rules, 2014 (hereinafter, ‘Rules, 2014’), leave could only be granted to well-behaved, eligible and convicted prisoners, and the petitioner could not be treated as one in light of the punishment imposed on him.

The Court in this case noted that the grant of ordinary leave is essentially an executive function.

“Release of prisoners for temporary periods is part of the reformative process and provides an opportunity for the prisoner to transform himself into a useful citizen. Parole or leave has been held to be a measure of grant of partial liberty, though such a release does not change the status of the prisoner,” the Court observed.

The Court noted that in this case, the petitioner had been granted leave regularly from 2015 onwards, and that no complaint of any nature had been raised against him while e he was on leave or parole. The petitioner had also been duly returning to prison after the leave, and had also enjoyed covid special parole in 2020 and 2021 respectively.

The Court also noted that no crimes had been registered against the petitioner after he came to the prison. The Court also observed that the police report did not mention any reason to deny leave to the petitioner, nor did it stipulate how the law and order situation would be affected if the petitioner were to be granted ordinary leave. The Court further took into consideration the Probation Officer’s report in favour of the petitioner, but with the rider that he would not leave Thiruvananthapuram District.

As regards the only alleged incident against the petitioner that he had supplied beedis to another convict, the Court observed that the principles of natural justice had evidently been violated in the proceedings resulting in the punishment upon the petitioner. The Court discerned that the petitioner had not been given any opportunity to explain and that his statutory rights had also been trampled upon. The Court observed that it was further evident from the files that the petitioner had not been served with a notice of the proceedings or even a copy of the enquiry report.

“Since the legal requirements, have been flouted completely and punishment imposed in haste, i.e. within two days of the incident, this Court is compelled to observe that the legal validity of the order dated 13.02.2023 in Ext.P7 [report of Probation Officer] is questionable. A purposeful attempt to create a negative incident against the petitioner seems to have been attempted by the 3rd respondent [Jail Superintendent] and others,” it was observed.

The Court went on to note that although the petitioner was entitled for ordinary leave which is marginally different from parole, as he had not approached the competent authority earlier, a writ of mandamus could not be issued since there was no request for either eave or parole and a corresponding refusal. “Only when there is a failure to exercise discretion can a writ of mandamus be issued. Since the petitioner has not approached the statutory authority with a request for release on parole or leave, there is no refusal. In the above circumstances, this Court cannot issue a direction or a writ of mandamus to grant parole to the petitioner,” it was added.

The Court was also of the opinion that the contention regarding the practice of repeated writ petitions would also not be of any significance since the two writ petitions have been filed by two different persons, and that the reliefs claimed by the petitioner could not be defeated on the technical ground that petitioner's brother had filed an earlier writ petition.

In this context, the Court proceeded to observe that the present case revealed that there had been an attempt to purposely deny leave to the petitioner by resorting to an unfair procedure, which was illegal.

“In view of the peculiar circumstances, as evident from the various instances narrated earlier, this court is satisfied that there has been an attempt to purposely deny leave to the petitioner by resorting to an unfair procedure. The action is, no doubt, to create an impression that petitioner is not a well-behaved person and in turn to deny leave to him. The procedure adopted is illegal,” the Court observed.

The Court also noted that the alleged offence would not fall within the category of offences in Rule 397(iii) of the Rules to deny ordinary leave to the convict.

The Court thus declared that the petitioner would be entitled to be released on ordinary leave with the condition that he shall not travel beyond the territory of Thiruvananthapuram District, and that the order by the Jail Superintendent would not stand in the way of the petitioner for the grant of leave/parole.

The petitioner was represented by Advocates V. Vijitha and R. Rohith. Public Prosecutor Sreeja V., Sr. Advocate K. Ramkumar, and Advocates Aswini Sankar R.S., T. Ramprasad Unni, S.M. Prasanth, and T.H. Aravind appeared on behalf of the respondents.

Case Title: Noushad A. v. State of Kerala & Ors. and Nazeer A. v. State of Kerala & Ors.

Citation: 2023 LiveLaw (Ker) 174

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