Kerala High Court
Subaidath vs State Of Kerala on 9 December, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
Monday, the 9th day of December 2024 / 18th Agrahayana, 1946
WP(CRL.) NO. 1147 OF 2024(S)
PETITIONER:
SUBAIDATH, AGED 44 YEARS, W/O. NOUSHAR @ KOCHUMONY,
VAYALIL PUTHEN VEEDU (MYTHRI NAGAR - 262), CHATHINAMKULAM,
CHANDANATHOPU.P.O, MANGAD VILLAGE, KOLLAM DISTRICT, PIN - 691 014.
RESPONDENT:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,
HON'BLE HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.
Writ petition (criminal) praying inter alia that in the
circumstances stated in the affidavit filed along with the WP(Crl.) the
High Court be pleased to grant interim bail for a period of one month
from 05.11.2024 onwards to the petitioner's husband who is undergoing
life imprisonment as Convict No. 3433 in Central Prison and Correction
Home Thiruvananthapuram, in the interests of justice.
This petition coming again on for admission upon perusing the petition
and the affidavit filed in support of WP(Crl.) and this court's order dated
07.11.2024 and upon hearing the arguments of M/S. A.MOHAMMED & SERGI JOSEPH
THOMAS, Advocates for the petitioner and of PUBLIC PROSECUTOR for the
respondent, the court passed the following:
P.T.O
P.B.SURESH KUMAR & JOBIN SEBASTIAN, JJ.
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W.P.(Crl.) No.1147 of 2024
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Dated this the 9th day of December, 2024
ORDER
P.B.Suresh Kumar, J.
The husband of the petitioner, Noushar is undergoing imprisonment for life in Central Prison and Correctional Home, Thiruvananthapuram from 10.04.2019 pursuant to his conviction in S.C.No.1908 of 2011 on the files of the Court of the 1st Additional District and Sessions Judge, Kollam. It is stated in the writ petition(Crl) that the daughter of the petitioner is in an advanced stage of pregnancy, and the presence of the husband of the petitioner is necessary in the house to take care of their daughter, since the husband of the daughter is working abroad. The petitioner, therefore, seeks on that ground, orders granting her husband interim bail for a period of one month.
2. It is seen that when the writ petition(Crl) came up for consideration, the learned Single Judge took the view W.P.(Crl.) No.1147 of 2024 -: 2 :- that inasmuch as the husband of the petitioner preferred an appeal challenging his conviction, as Crl.Appeal No.1195 of 2019 before this Court, it is only appropriate that the writ petition(Crl) be placed before the Bench dealing with the criminal appeal. The matter has come up before this Court accordingly.
3. In W.P.(Crl.) No.314 of 2023, the Division Bench of this Court held that there exists a cardinal distinction between the nature of release of convict pursuant to suspension of sentence under Section 389 of the Code of Criminal Procedure (the Code) on one hand and on the event of grant of reliefs/parole under the Kerala Prisons and Correctional Services (Management) Act, 2010 (the Act) and the Rules made thereunder (the Rules) on the other hand. It was also held by this court in the said case that Section 389 of the Code contemplates only suspension of sentence on the merits of the matter and that for release of a convicted prisoner for short- term requirements, recourse should necessarily be made to the remedy of leave, emergent or ordinary as the case may be, under the Act and Rules and the convict will be at liberty to approach this Court under Article 226 of the Constitution either W.P.(Crl.) No.1147 of 2024 -: 3 :- upon an order being passed in the request of the convict for leave, or in the event of inaction to pass such order within a reasonable time by the statutory authority. Paragraphs 29 to 32 of the judgment in W.P.(Crl.) No.314 of 2023 read thus:
"29. Section 389(2) confers on the High Court the same power as afforded to an Appellate Court. Having bestowed our anxious consideration to the language, purpose and purport of Section 389, we are of the firm opinion that what Section 389 contemplates is the suspension of sentence on the merits of the matter - of course not final, but prima facie - pending an appeal; and not for enabling release for short-term requirements of the nature afore-refered. While suspending a sentence under Section 389, the judgment of conviction is not suspended ordinarily, except in exceptional circumstances; it is only the operation/execution of the sentence that stand suspended. [see Shyam Narain Pandey v. State of U.P. - (2014) 8 SCC 909]. We fail to see anything in Section 389, which indicates an interim or temporary suspension of sentence, followed by release of the convict on interim bail for grounds as those cited by the petitioner herein. The first proviso to Section 389 which mandates an opportunity to the Public Prosecutor to show cause against the release in case of death or imprisonment for life is a clear indication that Section 389 contemplates suspension of sentence on merits, pending appeal; and not an interim suspension for short-term requirements. The second concomitant of Section 389, which directs release of the convicted person on bail or on his bond, if he is in confinement, has to be understood in a different parlance from that of the ordinary provisions for bail dealt with in Cr.P.C. Chapter XXXIII of the Code, which consists of Sections 436 to 450, pertains to grant of bail to "accused persons".W.P.(Crl.) No.1147 of 2024 -: 4 :-
Section 389 is the only provision we could see in the Code, which refers to grant of bail to a convicted person. [see in this regard Lala Jairam Das v. Emperor - (AIR 1945 PC 94)]. We also notice the difference in the legislative intention between grant of leave/parole and suspension of sentence. Leave/Parole is granted either to deal with a specific contingency pertaining to the prisoner or to facilitate rehabilitation with the society. Whereas, suspension of sentence under Section 389 has the object of keeping the order of sentence in abeyance after considering the prima facie sustainability of the conviction impugned, which intention is axiomatic from the mandate of recording reasons in writing and affording an opportunity to the Public Prosecutor to show cause against the release, in case of harsher punishments.
30. We also find a cardinal distinction between the nature of release of a convict pursuant to suspension of sentence under Section 389, Cr.P.C on the one hand, and on the event of grant of relief/parole under the Prisons Act and Rules on the other hand. In the case of the former, per force of Section 389(4), the period during which the convict was released shall be excluded in computing the term, for which he is sentenced. However, in the case of latter, per force of Rule 408 of the Prisons Rules, the period of leave/parole will be treated as part of the term, for which the convict is sentenced. This distinction is also a clear pointer to the proposition that release of the convict for short-term requirements, be it under emergent or ordinary leave, is to be dealt with in accord with the Prisons Act and Rules and not under Section 389, Cr.P.C.
31. We therefore hold that the practice of interim suspension of sentence and release of the prisoner on interim W.P.(Crl.) No.1147 of 2024 -: 5 :- bail under Section 389 for short-term requirements on the grounds of the nature relied on by the petitioner herein, is not sanctioned by law. Question No.1 formulated in this Writ Petition is answered thus.
32. In the light of the above deliberation, and especially in view of the dictum laid down in Nilofer Nisha (supra), we are of the firm view that for release of a convicted prisoner for short-term requirements, recourse should necessarily be made to the remedy of leave, emergent or ordinary as the case may be, under the Prisons Act and Rules. The convict will be at liberty to approach this Court under Article 226 of the Constitution either upon an order being passed in the request of the convict for leave, or in the event of inaction to pass such order within a reasonable time by the statutory authority. We may also reserve the right of the convict to approach this Court under Article 226 in rare and exceptional circumstances, where recourse to the statutory remedy is not feasible; or in case, the fact situation is one for which the Prisons Act and Rules does not offer a remedy."
4. A Division Bench of this Court has, in fact, issued a practice direction on 08.04.2021 in W.P.(C) Nos.19052 of 2020 and 20901 of 2020 that writ petitions of instant nature preferred by convicted prisoners who have preferred appeals against conviction shall be placed before the Bench having roster for criminal appeals, and the matters were thereafter being placed by the Registry without any judicial orders. The view taken by the Division Bench in the said cases is that if writ W.P.(Crl.) No.1147 of 2024 -: 6 :- petitions(Crl) preferred by convicted prisoners who preferred appeals are not placed before the bench having roster for criminal appeals, there would be conflicting orders by different Benches on interim suspension of sentence and parole, both resulting in the release of the convict.
5. In W.P.(Crl.) No.793 of 2023, this Court held that in the light of the decision of this Court in W.P.(Crl.) No.314 of 2023, there would be no chance of conflicting orders being passed by the Bench dealing with writ petitions(Crl) preferred by convicted prisoners and the Bench empowered to pass orders under Section 389 of the Code, for, the exercise of the power under Article 226 of the Constitution and Section 389 of the Code are distinct and different, inasmuch as in one case, it is the right available to convicted prisoners in terms of the provisions of the Act and the Rules, and in the other, a prima facie consideration of the merits of the appeal. In the circumstances, this Court ordered in W.P.(Crl.) No.793 of 2023 that the practice direction issued on 08.04.2021 will stand withdrawn. Needless to say, matters of this nature need to be considered by the Bench dealing with writ petitions(Crl) and not the Bench dealing with criminal appeals. Such a course is W.P.(Crl.) No.1147 of 2024 -: 7 :- necessary to protect the right of appeal of the prisoner against decisions in writ petitions(Crl) involving his rights under the Act and Rules.
The Registry is therefore, directed to list this matter accordingly. We are constrained to adopt this course as the reference order has been passed without taking note of the decisions referred to above.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOBIN SEBASTIAN, JUDGE.
ds 10.12.2024 09-12-2024 /True Copy/ Assistant Registrar