Parole May Be Refused Even To An Eligible Prisoner For Cogent Reasons: Kerala High Court

In an important ruling, the Kerala High Court held that prisoners do not have an inherent right to claim parole or leave and that the right to seek temporary release is contingent on meeting the statutory conditions under the Prisons Act and Rules and the discretion to grant or deny such release lies with the competent authority.

A Division Bench of Justice Alexander Thomas and Justice C. Jayachandran added that even in a case where a convicted prisoner satisfies the eligibility conditions, the authority is entitled to refuse leave for cogent reasons, clarifying that Rule 397 does not provide an absolute entitlement for leave and that such an interpretation would be incomprehensible as it would prioritise the Rules over the Act.

"For example, if there exists a real threat of a potential breach of peace and tranquility in the locality, or to the safety and security of the prisoner himself as envisaged in subrule (h) to Rule 397, the authority can refuse leave. The same is the case for a convicted prisoner with a high proclivity or propensity to commit crimes. An interpretation otherwise, construing Rule 397 as an absolute entitlement for leave, would amount to the Rules assuming paramountcy over the Act, which is incomprehensible."

The petitioner had approached the Court challenging the denial of parole/leave to her husband, a convicted prisoner.

Advocates P. Mohamed Sabah, Libin Stanley, Saipooja, Sadik Ismayil, R. Gayathri, M. Mahin Hamza and Alwin Joseph appearing for the petitioner contended that her husband is entitled to be released on ordinary leave for 60 days in a calendar year under Rule 397 of the Prisons Rules and relied on Noushad A v. State of Kerala (2023) to assert their argument.

On the other hand, the Senior Government Pleader Saigi Jacob Palatty argued that Rule 397 merely outlines the eligibility criteria for seeking leave, and the grant of leave is discretionary, subject to parameters specified in Rule 397 and Section 78 of the Prisons Act.

Additional Advocate General Asok M Cherian also appeared in the matter.

The Court initially examined the scheme of the Act and Rules to decide the matter. All the provisions appeared to indicate that the government had statutory discretion to decide on matters of leave and parole.

Upon going through Rule 397 of the Prisons Rules, the Bench observed that it does not confer an absolute or vested right of leave to the convict but only lays down the eligibility criteria for leave under Section 78 of the Prisons Act.

It was thus found that the grant of leave/parole is discretionary and subject to various parameters, including public interest and considerations of peace and tranquillity. The court emphasised that while eligibility conditions for leave are laid down, it is not an absolute entitlement. The authority has the discretion to consider each application for parole or leave on its individual merits and can refuse them for cogent reasons.

"Having referred to the various provisions of the Prisons Act and Rules, we are of the view that, Rule 397 does not envisage an absolute entitlement for leave to the convict. True that, it speaks of the eligibility of 60 days leave in a calendar year. However, R.397 has to be read, not in isolation, but in conjunction with and subservient to S.78 of the Prisons Act, which stipulates that leave may be granted to well behaved, eligible, convicted prisoners. A conjoint reading of both the provisions would only indicate that what has been stipulated in Rule 397 is only the eligibility criteria for grant of leave to a convicted prisoner; and not an absolute entitlement, in itself, for such leave."

Even so, the Bench held that while there is no absolute right for a convicted prisoner to avail leave, an application for leave of a prisoner who is eligible as per Rule 397 shall not be dismissed in an arbitrary or capricious manner, but only for cogent reasons. Upon analysing several precedents, it was concluded that leave and parole were only discretionary remedies and not an absolute right.

The Court then clarified that Noushad A. (supra)] did not recognise parole/leave as an absolute right either but rather affirmed that the discretion to grant leave must be exercised in favour of the convict if the conditions for leave are satisfied. Thus, the Court refuted the petitioner's interpretation of Noushad that Rule 397 grants an unconditional right to leave to the prisoner.

The decision also clarified that Section 389 of the CrPC does not contemplate an interim suspension of sentence and release of the prisoner for short-term requirements. The Division Bench observed that the provision is meant for suspending the execution of the sentence during the pendency of an appeal on its merits and that such release for short-term requirements should be dealt with as per the provisions of the Prisons Act and Rules.

Case Title: Sandhya v Secretary & Ors.

Citation: 2023 LiveLaw (Ker) 388

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