Kerala Prison Rules | No Absolute Bar On Granting Parole To Convict Who Previously Absconded: High Court

The Kerala High Court recently observed that as per Kerala Prisons and Correctional Service (Management) Rules 2010, there is no absolute bar in granting parole to the convict even if he had previously absconded.

Justice Ziyad Rahman A. A observed, 

... the purpose of imprisonment is not confined to creating a deterrent effect alone, but it is intended to reform the prisoner as well. If the petitioner's husband has been keeping a good track record inside the prison for the past 11 years from the date he was brought back after he absconded, it is certainly an indication of reformation. Moreover, the likelihood of getting parole would be an incentive for such a prisoner to maintain his good behaviour in prison and on the other hand, an absolute denial of the same may result in adverse consequences.

The Court was dealing with a Writ Petition moved by the wife of an inmate of Central Prison and Correctional Home, Viyyur, who was convicted under Section 302 IPC and is undergoing imprisonment for life.

It was alleged that the petitioner's husband was granted emergency parole in 1997, and he overstayed on parole for 13 years. Thereafter, the convict was not granted parole citing that the period of overstay was not regularized by the Government and by virtue of the operation of Rule 400(6) of Kerala Prisons and Correctional Services (Management) Rules, which contemplates a prohibition in granting parole in respect of a person whose overstay has not been regularised by the Government.

The petitioner had approached the High Court seeking the grant of parole to her husband on two previous occasions, and the second petition culminated in an order in which the Court found that the case of the convict was not an overstay, but it was a case of absconding. However, the petitioner was granted an opportunity to submit a fresh application for the regularisation of the overstay. In compliance with the same, the Government referred the question of regularisation of the stay of the convict to the Jail Advisory Board for consideration.

In the statement submitted before the Court, the Superintendent of Prison (3rd respondent) submitted that on account of the operation of Rule 452 BB, a person who has absconded while on leave earlier shall not be eligible for sanction of leave under any circumstances. Furthermore, it was submitted that the Jail Advisory Board decided not to regularise the overstay of the convict, reasoning that regularisation of overstay of 13 years would send a wrong message to the prison inmates and the public. 

Counsel appearing for the petitioner, Advocate Ranjith B. Marar, submitted that the reliance placed by the 3rd respondent on Rule 452 BB is not sustainable as the rule is repealed with the enactment of Kerala Prisons and Correctional Service (Management) Rules 2010. Further, the Counsel pointed out that as per the present Rules, there is no absolute prohibition in granting parole to a person who has absconded, and Rule 400(6) enables the Government to regularise the period during which he absconded. Thereby, the Counsel contended that in the absence of any absolute prohibition, there is no preclusion on the Government from considering the request of the convict for regularizing the period of overstay. The Counsel also pointed out that no final decision with regard to the regularisation of overstay of the convict has been made by the Government. 

The Counsel pointed out that from the statement submitted by the 3rd respondent, it is clear that the convict has been a well-behaved prisoner and law-abiding citizen since his admission to the Central Prison and Correctional Home Viyyur in the year 2011. On interim bail Covid 19 period, based on a general instruction issued by the Government, no untoward incidents occurred during and he reported back to the prison within the stipulated time.

The Court, after considering the contentions raised by both parties, sided with the petitioner, noting that as per the present Rules there is no absolute bar in granting parole to the convict even if he absconded and the power to regularise the period of the overstay on account of the act of absconding of the convict is with the Government. 

I am of the view that there is some force in the contentions put forward by the learned counsel for the petitioner. As rightly pointed out by him, there is no absolute bar in granting parole to the convict even if he absconded, as per the provisions of the present Rules. The provisions contained in the Rules also indicate the power of the Government to regularize the period of overstay on account of the act of absconding of the convict. Therefore, regularization is a matter which comes within the powers of the Government, and upon submission of an application, the same has to be considered.

The Court observed that the opinion of the Advisory Board is solely based on the reason that a wrong message is likely to be sent if the overstay is regularized. No consideration is given to the excellent conduct of the convict in the prison for the past 11 years, and the Court opined that the good conduct of the convict is a relevant aspect while considering the application for regularisation of overstay. 

Thereby, the Court directed the Advisory Board to reconsider the application taking relevant aspects into consideration. 

Case Title: Suhasini v. State of Kerala & Ors. 

Citation: 2022 LiveLaw(Ker) 525

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