Kerala High Court
Bindu Prakasan vs State Of Kerala on 3 December, 2024
2024:KER:91265
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 3RD DAY OF DECEMBER 2024/12TH AGRAHAYANA, 1946
W.P.(CRL.) NO. 79 OF 2024
AGAINST THE ORDER/JUDGMENT IN SC NO.162 OF 2001 OF
ADDITIONAL SESSIONS COURT (FAST TRACK) II, THRISSUR
CRIME NO.424/1999 OF KUNNAMKULAM POLICE STATION, THRISSUR
PETITIONER/S:
BINDU PRAKASAN
AGED 47 YEARS
W/O PRAKASAN, PARAMBIL HOUSE, BROTHERS ROAD,
KANDANNASSERY P.O., THRISSUR, PIN - 680102.
BY ADVS.
GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
MANU SRINATH
NIMESH THOMAS
LIJO JOHN THAMPY
RESPONDENTS:
1 STATE OF KERALA
HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
2024:KER:91265
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W.P.(Crl) No.79 of 2024
2 DIRECTOR GENERAL
PRISON AND CORRECTIONAL SERVICE DEPARTMENT,
GOVERNMENT OF KERALA, POOJAPPURA,
THIRUVANANTHAPURAM, PIN - 695012.
3 JAIL ADVISORY BOARD
OPEN PRISON AND CORRECTIONAL HOME, CHEEMENI,
KASARAGOD, KERALA, PIN - 671313.
4 DISTRICT PROBATION OFFICER,
THRISSUR, KALYAN NAGAR, AYYANTHOLE, THRISSUR,
KERALA, PIN - 680003.
5 DISTRICT POLICE CHIEF
THRISSUR CITY, RAMAVARMAPURAM RD, PALLIMOOLA,
MANNUMKAD, RAMAVARMAPURAM, THRISSUR, KERALA,
PIN - 680631.
6 SUPERINTENDENT,
OPEN PRISON AND CORRECTIONAL HOME, CHEEMENI,
KASARAGOD, KERALA, PIN - 671313.
BY ADVS.
SHRI.P.NARAYANAN, SENIOR PUBLIC PROSECUTOR
SHRI.SAJJU.S., SENIOR PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
FINAL HEARING ON 21.11.2024, THE COURT ON 03.12.2024
DELIVERED THE FOLLOWING:
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W.P.(Crl) No.79 of 2024
P.G. AJITHKUMAR, J.
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Dated this the 3rd day of December, 2024 JUGEMENT Sri.Prakasan is a life-convict. He is now detained in the Open Prison and Correctional Home, Cheemeni in Kasaragod. He has already undergone imprisonment for a period of twenty years, one month and five days, including set off as on 11.07.2023. He claims that he is entitled to be released prematurely in terms of the guidelines in the matter. This Court as per Ext.P12 judgment in W.P.(Crl) No.973 of 2022 directed the Government to pass appropriate orders on the report of the Jail Advisory Board-3rd respondent his premature release. The Government issued Ext.P14 order dated 04.12.2023 rejecting the recommendation. In the circumstances, the wife of Sri.Prakasan (Convict No.321) has filed this writ petition seeking to quash Ext.P7, an earlier order of the Government rejecting the recommendation of the 3rd respondent to release Sri.Prakasan and also Ext.P14 order.
2024:KER:91265 4 W.P.(Crl) No.79 of 2024 The petitioner also seeks a writ of mandamus directing the 1 st respondent-Government to release her husband forthwith.
2. The contentions of the petitioner are that the recommendation of the 3rd respondent dated 05.01.2017 was in favour of premature release of Sri.Prakasan. Taking all the relevant factors, including his behaviour in the Jail, such a recommendation was made. The 1st respondent did not accept that recommendation. The petitioner, therefore, approached the Apex Court challenging the order of the 1 st respondent. The Apex Court directed the 1st respondent to take an appropriate decision on the representation to be submitted by Sri.Prakasan seeking premature release. He therefore submitted Ext.P6 representation. The Government issued Ext.P7 order rejecting his plea for premature release without assigning any tangible reason. The said order was violative of the principles and guidelines enunciated as per the provisions of the Kerala Prison Correctional Services (Management) Act, 2010 (for short "the Act") and the Kerala Prison Correctional Services (Management) Rules, 2014 (for short "the Rules").
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3. It was in challenge of the aforesaid order, the petitioner has filed W.P.(Crl.) No.973 of 2022 before this Court. It is alleged that the Government has taken a discriminatory stand, which is quite evident from Ext.P10 order dated 20.08.2019, by which life convicts of the same footing were released. The discrimination meted out against Sri.Prakasan is again evident from Exts.P9 and P13. The reasons stated for rejecting the claim of Sri.Prakasan for premature release is that he was convicted for murder of a woman, who is none other than his mother and that release of such a person would send a wrong message to the society. It is pointed out that a prisoner convicted for murdering both parents was even released to which the petitioner refers to Ext.P8 order, an information furnished under the Right to Information Act, 2005. Sl.No.6 among the convicts released as per the recommendation by the 3 rd respondent in its meeting held on 20.04.2016 is that person. Several other convicts for murdering women were also released as reflected from Ext.P8. Pointing out those aspects, the petitioner 2024:KER:91265 6 W.P.(Crl) No.79 of 2024 contends that Ext.P14 is vitiated for discrimination against her husband and violative of the guidelines issued under the Act and the Rules.
4. The 1st respondent filed a counter-affidavit. Ext.P14 order is justified stating that the decision therein is consistent with the policy evolved by the Government in the matter of premature release of the convicts. It is averred that recommendations of the 3rd respondent for premature release of Sri.Prakasan were duly considered by the Government and rejected the same for sufficient reasons. Paragraph No.9 in the counter-affidavit, where the said aspect is dealt with, is extracted below:
"9. The proposal for premature release of C.No.321 Prakasan was rejected by the Kerala Government as per Order G.O. (Ms) No.247/2023/Home dated 04.12.2023. As per order G.O.(Ms) No.234/2023/Home dated 15.11.2023 Kerala Government released 05 life convicts from the Open Prison & Correctional Home, Cheemeni out of 26 recommended life convicts of Jail Advisory Board meeting held on 02.05.2023.
As per G.O.(Ms.) No.247/2023/Home dated 04.12.2023 while considering the case of the petitioner's husband it is stated that alarming rise in the number of criminal attacks against women nowadays shows that punitive measures being imposed at present are not sufficient to deter and curb 2024:KER:91265 7 W.P.(Crl) No.79 of 2024 such offences. Criminal activities against women, restrict their freedom and hinder their active participation in society. More over releasing a person who murdered his mother may send wrong message to the society. As a responsible Government it is utmost imperative to take appropriate stand regarding the release of prisoners who has a history of attacking women to make aware of society of the rigidness of the punishment."
5. Heard the learned counsel for the petitioner and the learned Special Government Pleader.
6. Sri.Prakasan was convicted by the Additional Sessions Judge (Fast Track) Court-II, Thrissur for the offences punishable under Sections 302 and 307 of the Indian Penal Code, 1860 (IPC). The charge was that he murdered his mother and attempted to murder his father. His appeal was dismissed by this Court. As on 11.07.2023, he has completed imprisonment for a period of twenty years, one month and five days. If so, he has undergone sentence for more than 21 years now. The submission of the learned counsel for the petitioner is that the Government has to consider the recommendations of the Jail Advisory Board for premature release consistent with the policy evolved in that matter.
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7. As pointed out by the learned counsel, the Apex Court laid down parameters in that regard in Sharafat Ali v. State of U.P. [(2022) 13 SCC 186]. It was held that the Government while considering the application of a convict for premature release, what to consider is whether the convict has a prior criminal history, except the conviction in question, his conduct and behaviour in jail and the possibility of his posing threat or danger to the society in the event of his release, etc. It is further urged that while the Government is obliged to follow the policy it has evolved, there shall not be differential treatment of various convicts. Any such discrimination vitiates the order of the Government rejecting the recommendation of the Jail Advisory Board for a premature release. The learned counsel pointed out that while several other convicts, including those who involved in the matricide and uxoricide, were prematurely released by the Government as is reflected from Exts.P8 and P13. That will sufficiently establish the biased stand taken by the Government in issuing Ext.P14 order rejecting the recommendation to release Sri.Prakasan.
2024:KER:91265 9 W.P.(Crl) No.79 of 2024
8. This Court considered a similar situation in W.P. (Crl.) No.90 of 2024. The convict therein committed the crime of murder of a woman. He was under incarceration for more than 21 years. He was aged 62 years. While considering his plea for premature release and the allegation against the Government of discrimination in the matter, it was held:-
"7. In the decision in Joseph v. State of Kerala [2023 SCC OnLine SC 1211], on which heavy reliance was placed by the learned counsel for the petitioner, it was observed that guidelines which do not have any statutory flavour are merely advisory in nature and they cannot have the force of a statute as they are subservient to the legislative act and the statutory rules. It was further observed that the practical impact of a guideline which bars consideration of a premature release request by a convict who has served over 20 or 25 years, based entirely on the nature of crime committed in the distant past, would be to crush the life force out of such individual, altogether.
8. However in a recent decision in Bilkis Yakub Rasool v. Union of India and Others (2024) 5 SCC 481, the Supreme Court had, after considering various decisions on premature release held that a convict undergoing life imprisonment is expected to remain in custody till the end of his life subject to any remission granted by the appropriate Government under section 432 Cr.P.C, which in turn is subject to the procedural checks in that section and the substantive check in section 433 Cr.P.C. Pursuant to the 2024:KER:91265 10 W.P.(Crl) No.79 of 2024 judgment in Sangeet and Another v. State of Haryana (2013) 2 SCC 452, the Central Government had requested the State Governments to scrupulously comply with the directions of the Supreme Court.
9. In this context it must be observed that the power of premature release or pardoning is an act of grace and has to be exercised considering various factors including the age of the accused at the time of commission of the offence, the period of imprisonment already undergone, nature of reformation that has come up on the convict etc. A blanket stance that all persons who have murdered a woman or a child shall not be prematurely released, dehors any other circumstances is not conducive to a welfare State and such a stand will be contrary to the principles that govern the commutation of imprisonment. Commutation is based on the principles of reformation of the individual intended to bring the convict back to society as a useful member.
10. Though the learned counsel vehemently contended that compassion and sympathy must be shown, the Supreme Court had, in the decision in Bilkis Yakub Rasool's case (supra), observed that the manner of functioning of the court has to be in accordance with the rule of law and courts should be dispassionate, objective and analytical. It has also been observed that the rule of law does not mean protection to a fortunate few and the very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples of killing others if it suits their ends."
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9. It is true that in Ext.P14 the reason for rejecting the recommendation of the 3rd respondent for premature release of Sri.Prakasan was not given in great detail. It is undisputed that the Government has evolved a policy in the matter of premature release of life-convicts invoking the powers under Section 432 of the Code of Criminal Procedure, 1973. Such a policy was evolved having regard to the provisions of Section 77 of the Act and Rule 462 of the Rules. One of the parameters is that a convict for murdering a woman is not entitled for premature release.
10. Here is a case where the conviction was for murdering own mother. The convict attempted to kill his father also. So, refusal to release the petitioner prematurely cannot be said to be in violation of the policy evolved by the Government. Of course, if the Government has acted in gross violation of the parity principles, the impugned order may become vitiated. From the materials available on record, it cannot be said that there occurred gross violation of the parity principle and Sri.Prakasan was discriminated against. Along 2024:KER:91265 12 W.P.(Crl) No.79 of 2024 with the aspect of murdering of woman, various other facts are relevant considerations in the matter of premature release. The Apex Court in Sanaboina Satyanarayana v. Government of A.P. and others [(2003) 10 SCC 78] held in the above respect as follows:
"7. xx xx xx The remission to be granted was in respect of only a specified class of convicts and that too "subject to the conditions" specified in the very Government order. Consequently, the claim for remission cannot be made or countenanced de-hors the specific conditions subject to which only it has been accorded and in as much as the grant as well as the conditions formed a compendious single common pattern or scheme of concession by way of remission, pregnated with a policy designed in public interest and the safety and interests of the society, either the remission could be availed of only subject to the conditions stipulated or the entirety of the scheme fails as whole, and there is no scope for judicial modification or modulating the same so as to extend the concession in excess of the very objective of the maker of the order which seems to have been guided by considerations of State policy. In such class or category of orders, there is no justification for any addition or subtraction to facilitate enlargement of the scope and applicability of the order beyond what was specifically intended in the order itself."
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11. Viewed in the light of the propositions of law laid down in the aforementioned decisions, it cannot be said that Ext.P14 is vitiated for gross violation of the equality principle. Therefore, the case of the petitioner that Exts.P7 and P14 are liable to be quashed cannot be countenanced. Hence, this writ petition is not liable to be allowed. However, there shall be a direction to the 3rd respondent to consider if Sri.Prakasan (Convict No.321) submits a fresh representation for premature release after collecting all the relevant materials and place its recommendation before the Government. The Government shall take a decision on such recommendation giving due regard to the principles laid down in the aforementioned decisions.
The writ petition is disposed of accordingly.
Sd/-
P.G. AJITHKUMAR, JUDGE dkr 2024:KER:91265 14 W.P.(Crl) No.79 of 2024 APPENDIX OF WP(CRL.) 79/2024 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE JUDGMENT DATED 18.01.2003 IN SC NO. 162/2001 PASSED BY THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-II, THRISSUR EXHIBIT P2 A TRUE COPY OF THE JUDGMENT DATED 29.10.2004 IN CRL. APPEAL NO. 890/2003 PASSED BY THE HONOURABLE HIGH COURT EXHIBIT P3 A TRUE COPY OF THE IMPRISONMENT CERTIFICATE DATED 29.10.2021 ISSUED BY THE 6TH RESPONDENT EXHIBIT P4 A TYPED COPY OF THE REPORT DATED 18.06.2020 FILED BY THE 6TH RESPONDENT BEFORE THE DEPUTY INSPECTOR GENERAL OF PRISONS, NORTH ZONE, KOZHIKKODE EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 17.12.2021 IN W.P.(CRL.) NO. 516/2021 PASSED BY THE HONOURABLE SUPREME COURT OF INDIA EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION DATED 27.12.2021 PREFERRED BY THE HUSBAND OF PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P7 A TRUE COPY OF THE G.O.(RT) NO.
2576/2022/HOME DATED 19.09.2022 ISSUED BY THE 1ST RESPONDENT EXHIBIT P8 A TRUE COPY OF THE LETTER NO. G1- 8912/2019/DIGP NZ DATED 24.06.2020 ISSUED BY THE SPIO OF DEPUTY INSPECTOR GENERAL OF PRISONS, NORTH ZONE, CALICUT 2024:KER:91265 15 W.P.(Crl) No.79 of 2024 EXHIBIT P9 A TRUE COPY OF G.O.(MS) NO.77/2019/HOME DATED 20.06.2019 ISSUED BY THE 1ST RESPONDENT EXHIBIT P10 A TRUE COPY OF G.O.(MS) NO.126/2019/HOME DATED 20.08.2019 ISSUED BY THE 1ST RESPONDENT EXHIBIT P11 A TRUE COPY OF THE MEMO SUBMITTED BY THE SENIOR GOVERNMENT PLEADER DATED 12.07.2023 IN W.P.(CRL.) 973/2022 BEFORE THE HONOURABLE HIGH COURT EXHIBIT P12 TRUE COPY OF JUDGMENT DATED 01.08.2023 IN W.P(CRL.) NO. 973/2022 OF THE HONOURABLE HIGH COURT OF KERALA EXHIBIT P13 A TRUE COPY OF THE G.O.(MS) NO.
234/2023/HOME DATED 15.11.2023 ISSUED BY THE RESPONDENT EXHIBIT P14 A TRUE COPY OF G.O.(MS) NO.
247/2023/HOME DATED 04.12.2023 ISSUED BY THE 1ST RESPONDENT EXHIBIT P15 A TRUE COPY OF JUDGMENT DATED 18.12.2023 IN CON.CASE (C) 2695/2023 PASSED BY THE HONOURABLE HIGH COURT