Convict Not Allowed To Attend Brother's Funeral: Kerala High Court Grants Him Emergency Leave To Attend Subsequent Religious Rites

The Kerala High Court on Tuesday granted emergency leave to a man undergoing imprisonment to attend the religious rites following his brother's death under special circumstances since he was not permitted to attend the funeral.

Justice Ziyad Rahman A.A observed that although Rule 400(1)(i) of Kerala Prisons and Correctional Services (Management) Rules only extends the benefit of emergency leave to attend a funeral ceremony and not for religious rites, the facts and circumstances of the case entitled the convict to emergency leave. 

"The fact remains that, even though the convict was entitled to emergency leave to attend the funeral of the deceased, he could not avail of the said benefit. Now he wants to attend the religious rites in connection with the death of the brother. Since he was not granted the eligible benefit for attending the funeral function, I am of the view that some indulgence can be shown." 

The petitioner's father is undergoing imprisonment in the Central Prison and Correctional Home after being convicted under Section 376 IPC. He was sentenced to imprisonment for seven years and had already undergone imprisonment for over 4 years.

The petitioner approached the Court aggrieved by the denial of emergency leave to his father to attend the religious rites following the convict's brother's demise. It was argued that although an application was submitted in this regard, it was dismissed.

Advocate Sherry J Thomas appeared for the petitioner and contended that the convict's brother passed away on 27.05.2022 and that despite being eligible for emergency leave under Rule 400(1)(i) to attend the funeral, he could not avail this benefit. The religious rites in connection with the death of his brother are scheduled to be conducted on 07.07.2022. Although an application was submitted to attend the same, this was declined as well.

Senior Government Pleader C.S Hrithwik stoutly opposed the petition pointing out that the benefit granted under Rule 400 is confined to enabling the convict to attend the funeral ceremony. Under no circumstances would the same allow him to attend the religious rites concerning the death.

Although the Judge found force in this contention, it was observed that the convict was not allowed to attend the funeral in the first place. Further, it was observed that during the 4 years he spent under imprisonment, he was not granted any parole in the interregnum period being a convict under Section 376 IPC. The Senior Government Pleader also submitted upon getting instructions that the conduct of the convict in prison so far is satisfactory.

Thus, taking into account all the relevant aspects, the Court was inclined to invoke its jurisdiction under Article 226 of the Constitution and thereby granted solace to the convict by permitting him to undergo emergency leave for a period of three days.

Case Title: Akhil P.S v. Director General of Police & Anr.

Citation: 2022 LiveLaw (Ker) 326

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