Kerala High Court
Venugopal. T.V vs State Of Kerala on 14 December, 2015
Author: K.Abraham Mathew
Bench: K.Abraham Mathew
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
THURSDAY, THE 14TH DAY OF JUNE 2018 / 24TH JYAISHTA, 1940
WP(C).No. 40580 of 2017
-----------------------
PETITIONER:
-----------
VENUGOPAL. T.V, C.NO.9484,
CENTRAL PRISON & CORRECTIONAL HOME,
VIYYUR, THRISSUR DISTRICT
BY ADVS.SRI.RENJITH B.MARAR
SMT.LAKSHMI.N.KAIMAL
SMT.RESHMI JACOB
SRI.P.S.SYAMKUTTAN
SRI.T.U.SUJITH KUMAR
SRI.R.ANAS MUHAMMED SHAMNAD
SRI.P.VISHNU (PAZHANGANAT)
RESPONDENT(S):
--------------
1. STATE OF KERALA, REPRESENTED BY
THE SECRETARY TO GOVERNMENT,
HOME (B) DEPARTMENT,
GOVERNMENT SECRETARIAT,
TRIVANDRUM.
2. DIRECTOR GENERAL OF PRISONS AND
CORRECTIONAL SERVICES,
PRISONS HEADQUARTERS, POOJAPPURA,
THIRUVANANTHAPURAM - 695012.
3. THE SUPERINTENDENT,
CENTRAL PRISON & CORRECTIONAL HOME,
VIYYUR, THRISSUR DISTRICT.
BY SPECIAL PUBLIC PROSECUTOR SRI.P. NARAYANAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 14-06-2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
mbr/
WP(C).No. 40580 of 2017 (V)
--------------------------
APPENDIX
PETITIONERS' EXHIBITS:
----------------------
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 14.12.2015 IN
WPC.NO. 34699/2015 OF THIS HON'BLE COURT.
EXHIBIT P2 TRUE COPY OF THE GO (RT)NO.828/2016/HOME
DATED 03.03.2016 PASSED BY THE 1ST RESPONDENT
WITH TYPED COPY.
EXHIBIT P3 TRUE COPY OF THE CHAPTER 30 OF THE KERALA
PRISONS AND CORRECTIONAL SERVICES
(MANAGEMENT) RULE, 2014.
EXHIBIT P4 TRUE COPY OF THE ORDER NO.91772/B2/2016/HOME
DATED 01.12.2016 ISSUED BY THE 1ST RESPONDENT.
RESPONDENTS' EXHIBITS: NIL
---------------------
/TRUE COPY/
P.S.TO JUDGE
mbr/
16.06.2018.
K.ABRAHAM MATHEW, J.
-------------------------------------------
W.P.(C).No.40580 of 2017
-------------------------------------------
Dated this the 14th day of June, 2018
JUDGMENT
In S.C.No.125 of 1996 on the file of the V Additional Sessions Court, Ernakulam the petitioner was convicted of the offences under Sections 302 and 392 IPC and sentenced to undergo imprisonment for life for the first offence and rigorous imprisonment for five years for the other offence. While he was undergoing the imprisonment in Central Prison at Thiruvananthapuram he was granted parole for seven days from 5.9.1997 in connection with the death of his mother. But he did not return to the prison. On 9.2.2011 he was arrested at Kumili in Idukki district and lodged in Central Prison, Thrivananthapuram, from where he was later shifted to Central Prison, Viyyur. His wife filed Writ Petition No.34699 of 2015 for a direction to the respondent State of Kerala to grant him parole. The Writ Petition was disposed of directing the petitioner to approach the Government for regularization of his overstay and observing that in case the Government allows it the petitioner's application for parole shall be considered by the third respondent Superintendent of the prison in accordance with law. Accordingly, the W.P.(C).No.40580 of 2017 2 petitioner submitted an application for regularization period of overstay and another application for parole. By Exts P2 and P4 orders the Government rejected his applications for regularisation of the overstay and for parole respectively. The Government took the view that he absconded for more than 13 years and he is not eligible for any leave. This is challenged in this Writ Petition.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
3. The first question that arises for consideration is whether the petitioner merely overstayed or he absconded. A person is said to abscond when he conceals himself, which may be in his own house or elsewhere. The period during which he made himself scarces is relevant. In this case the petitioner was granted parole for seven days in connection with the death of his mother. Thereafter, he did not return to the prison. After 13 years 5 months and 4 days he was arrested by the police and lodged in the prison again. This long period itself is sufficient to hold that he was absconding. It is not a case of overstay.
4. Sub rules 5 and 6 of Rule 400 of Kerala Prisons and Corrections Services (Management) Rules 2014 come up for consideration since the learned counsel submits that the provision applicable is Sub rule 5 while the learned senior Govt. Pleader maintains W.P.(C).No.40580 of 2017 3 that the provision applicable is Sub rule 6. A free English translation of the Sub rules, which are in Malayalam is given below:
Sub rule 5:
A convict who fails to return to prison on the specified date after the expiry of the period of leave is not entitled to leave again for one year from the date of his return to the prison or till regularisation of his overstay.
Sub rule 6:
A person who absconds during the period of leave is not entitled to any kind of leave unless the period of his overstay is regularised by the Government.
The two rules make a distinction between overstay and absconding, which is clear from the specific mention of absconding in Sub rule 6. So to a person who absconds during the period of leave, it is Sub rule 6 and not Sub rule 5 that is applicable.
5. The question that remains to be considered is whether the Government was justified in passing Exts P2 and P4 orders.
6. By Ext P4 order the Government rejected the petitioner's application for parole on the ground that it does not even deserve to be W.P.(C).No.40580 of 2017 4 considered. The application for parole could have been entertained only if the period of his overstay was regularised by the government. That was not done. So there is nothing wrong in the Government's passing Ext P4 order.
7. By Ext P2 order the petitioner's application for regularisation of overstay was rejected. The reason stated is that Sub rule 6 of Rule 400 disentitles a prisoner who was absconding from getting any kind of leave. Patently this is wrong. Sub Rule 6 operates in a different field. It has already held it applies to a person who overstayed and not to a person who absconded. It is not for valid reason the Government rejected the petitioner's application for regularisation of overstay. It becomes necessary for this court to set aside Ext P2 order and direct the Government to reexamine the application again.
In the result, this Writ Petition is allowed in part. Ext P2 order is set aside. The Government is directed to reconsider the application filed by the petitioner for regularisation of his overstay.
Sd/-
K.ABRAHAM MATHEW JUDGE pm