Jail Authorities Should Pass Considered Orders On Requests For Emergency Leave, Ordinary Parole Within 3 Weeks Of Application: Kerala High Court

In a significant decision, the Kerala High Court underscored the duty of jail authorities to consider applications moved by convicts and relatives of convicts for emergency leave, ordinary leave, and so on, within a fixed time frame. 

Justice P.V. Kunhikrishnan took note that there were several petitions before the Court moved by convicts and their close relatives for getting emergency leave, ordinary parole, and so on. 

The Court therefore proceeded to issue a slew of directions on processing such applications, and issuing appropriate orders in that regard within three weeks from the date of receipt of the same. It further directed such orders to be communicated to the convicts and their relatives within a week of passing the Order. 

"It is the duty of the jail authorities to duly process the application for emergency leave, ordinary parole etc immediately. The same should be processed within a time frame. If any report is called for from the local police, the local police also should submit the report within a time frame. Therefore, if an application for emergency leave, ordinary parole etc., are submitted by the convicts or their relatives, the same should be considered and appropriate orders must be passed within three weeks from the date of receipt of the application. If any query is given to any local police, the local police should submit the report within one week from the date of receipt of the request. The order passed by the authority shall be communicated to the convict and the relatives, if any, within one week from the date of passing of the order," the Court declared. 

The Court was seized with a plea by the wife of a life convict seeking the release of her husband on emergency leave, to complete the formalities pertaining to availing the benefit of the Life Housing Scheme. 

It is the case of the petitioner that her house had been destroyed in a natural calamity and that she along with her family was currently residing in rental premises. The petitioner averred that her husband's name had been included as a beneficiary in the Life Housing Scheme by the Local Self Government, considering the former's plight. She submitted that to avail the benefits of the scheme, the presence of her husband was required at various Government Offices since the property was in his name. 

In this regard, the petitioner states that although she had filed a representation before the Superintendent of Viyyur Central Jail seeking Emergency Leave for her husband, no orders were issued by the said authority.  

It is at this juncture that the present writ petition was filed by the petitioner seeking the issuance of a direction to the Superintendent to release her husband's special leave or parole for 2 months to complete the formalities of the Life Housing Scheme, and to consider her representation within a time frame fixed by the Court. 

The 2nd respondent averred that upon receiving the petitioner's fresh representation along with the report of the Tahsildar, a letter had been sent to the District Police Chief (DPC) seeking a report from the concerned Police Station on the feasibility of any law and order issue or if the petitioner's husband would be in danger if he were to be granted emergency leave.

It was submitted that pursuant to the same, a letter was received from the DPC informing that there was a chance of political and other law and order problems, which could cause a threat to the life of the prisoner if he were to be released on emergency leave, and thereby recommended against the grant of the same. 

The DPC had further stated in his letter that since no preparations had been made for the construction of the house, there was no need to grant the prisoner leave for the renovation of the house. 

The Court voiced its strong disagreement with the afore position adopted by the DPC and observed that a prisoner serving his term in prison would always be concerned about his family and residence. 

The Court was of the prima facie opinion that the letter was issued by the DPC without conducting any enquiry, particularly in light of the certificates issued by the Tahsildar and the local Panchayath. 

"The State Police Chief should look into it and issue a general guideline about the manner in which the enquiry is to be conducted in such situations. When the wife of the convict submits before the jail authorities that, for completing the procedure for getting the Life Housing Scheme facility, the presence of the petitioner's husband's is necessary, the police authorities cannot deny the same on flimsy reasons without any basis," it said. 

The Court emphasized that prisoners are also human beings concerned about their family and residence and that Section 36 of the Kerala Prisons and Correctional Services (Management) Act, 2010 also embodies such rights of prisoners including of enjoyment of Fundamental rights under Part III of the Constitution. 

The Court was further of the view that the letter by the DPC regarding the possible political and other law and order issues, indicated that the same revealed the incapacity of the police authorities and not the ineligibility of the prisoner. 

"If the police authorities are not able to maintain law and order, when a prisoner comes to his house on an emergency leave to complete the preliminary steps to construct a shelter for his family and children, that is a sad state of affairs," it quipped. 

The Court thus held that the petitioner's husband is entitled to emergency leave under Rule 400(1)(iii) of the Kerala Prisons and Correctional Services (Management) Rules, 2014, and added that if any law and order problem were to arise, the DPC would have to ensure protection to the prisoner.

"It is his responsibility, because, he has submitted that, if the prisoner is coming out, there is a chance for law and order problem. If the District Police Chief, Thrissur Rural is not even able to protect the life of a prisoner who is released on emergency leave to take steps to complete a collapsed dwelling house, he is not entitled to continue in that post," it remarked. 

It thereby directed the Superintendent of Viyyur Central Jail to pass orders granting emergency leave to the petitioner's husband forthwith under Rule 400 (1) (iii) of the Rules, 2014. 

Reminding that constitutional courts are vested with the duty to ensure no violation of the basic rights of the prisoner, the Court thereafter proceeded to issue the directions mentioned hereinbefore. 

Counsel for the Petitioner: Advocates Arun Krishna Dhan, T.K. Sandeep, Arjun Sreedhar, Alex Abraham, Swetha R., and Harikrishnan P.B.

Counsel for the Respondents: Public Prosecutor Sreeja V. 

Citation: 2023 LiveLaw (Ker) 733

Case Title: Rama v. State of Kerala & Anr. 

Case Number: WP(CRL.) NO. 1215 OF 2023

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