Kerala High Court
Mehmood vs The Secretary,Home Department Of ... on 4 December, 2021
Author: K.Haripal
Bench: K.Haripal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
SATURDAY, THE 4TH DAY OF DECEMBER 2021 / 13TH AGRAHAYANA, 1943
WP(CRL.) NO. 294 OF 2021
PETITIONER/S:
MEHMOOD
AGED 60 YEARS,S/O.ABOOTTY, MADEENA MAHAL (H), ANIYARAM,
CHOCKLI, TALASSERY, KANNUR, KERALA
BY ADVS.P.MOHAMED SABAH
LIBIN STANLEY
SAIPOOJA
R.GAYATHRI
SADIK ISMAYIL
M.MAHIN HAMZA
RESPONDENTS:
1 THE SECRETARY,HOME DEPARTMENT OF KERALA
SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001
2 THE DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL
SERVICES,PRISONS HEADQUARTES, POOJAPPURA,
THIRUVANANTHAPURAM PIN 695 012
3 THE SUPERINTENDENT
CENTRAL PRISON, VIYYUR, THRISSUR, PIN 680 010
SR.PP - SRI. HRITHWIK C.S.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
02.12.2021, THE COURT ON 04.12.2021 DELIVERED THE FOLLOWING:
W.P.(Crl.)294/2021 2
JUDGMENT
This is a writ petition filed under Article 226 of the Constitution of India seeking to issue a writ of mandamus or any other appropriate writ, direction or order to respondent No.3, the Superintendent, Central Prison, Viyyur to comply with Ext.P1 order allowing the petitioner's son to make phone calls to his wife employed abroad or pass a writ of mandamus or any other appropriate writ directing respondent No.3 to permit the petitioner's son to call his wife, Mariam in her ISD phone number 00974-66151756 at least twice in a month, in the interest of justice.
2. Petitioner's son is a convicted prisoner now undergoing sentence in Central Prison, Viyyur from 2019 onwards. Earlier, from 2016 onwards he was an undertiral prisoner in the high security prison, Viyyur; during that period he approached the trial court, the NIA Court, Ernakulam, enabling him to make telephone calls to his wife who is a native of Philippines, employed in Qatar. By Ext.P1 order he was allowed to make telephone calls once in a month for 15 minutes, but after the conviction and transferring him to the Central W.P.(Crl.)294/2021 3 Prison Viyyur, the 3rd respondent is not permitting to contact his wife at Qatar. This causes much hardship to the son of the petitioner. According to the learned counsel, it is the undeniable legal right of his son to contact his wife and to seek about her well-being and hence the writ petition.
3. The 3rd respondent filed a statement contending that Ext.P1 was passed during the period he was undergoing trial before the NIA Court. Now he stands convicted by the Special Court for trial of NIA Cases for the offences under Sections 18, 17, 18(b), 38, 39 and 40 of the UA(P) Act for a period of fourteen years; the sentences under different counts have to run concurrently and he has completed five years and more in sentence including set off for 1150 days. According to the 3rd respondent, the Ext.P1 order is not applicable to him. However, the prisoners in Central Prison could make whatsapp calls to a native of Philippines now employed in Qatar and the son of the petitioner has availed such opportunity. Referring to Anneaxure-R3(a) he said that on 01.01.2021, 24.02.2021, 04.06.2021 and 26.06.2021 he had made such whatsapp calls, details of which are evident from W.P.(Crl.)294/2021 4 Annexure-R3(a). Moreover, according to the 3rd respondent, as per circular No. 69, Annexure-R3(b) dt. 11.08.2020 and circular No.7 of 2021 dt. 13.01.2021 of the Director General of Prisons and Correctional Services, prisoners can make video calls with their relatives within an outside India by using the software E-prison suite-F (E-Mulakat), a security software developed by National Informatics Centre, Government of India, New Delhi, which has been recognised by the Ministry of Home Affairs, Government of India. The petitioner's son can avail this opportunity and can communicate with his wife abroad with this facility. Even though the jail authorities have given this opportunity to all other prisoners, the partitioner's son Manseed has not availed the opportunity.
4. It is also stated that even though the son of the petitioner had claimed that the said Mariam is his wife, there is no evidence for the same and therefore the 3rd respondent submits that he may be directed to produce evidence of their marriage.
5. I heard the learned counsel on both sides.
6. The learned counsel for the petitioner submits that during W.P.(Crl.)294/2021 5 the period when he was an undertrial prisoner, there was no problem at all and by Ext.P1 he was permitted to make regular ISD calls and now only such objections are being raised. But, according to the learned Senior Public Prosecutor, his wife is a foreigner. The petitioner's son is a convicted prisoner. Therefore, it is difficult to allow him to make ISD calls. Instead he can make use of the E-Mulakat facility and can make video calls. According to the learned Senior Public Prosecutor, allowing to make ISD calls may create security hazards.
7. It is true that by Ext.P1 order the trial court had permitted him to make ISD calls. But now facilities are available to the prisoners for making video calls, which is more advantageous. I do not understand why the son of the petitioner is hesitant to use this facility or make video calls through the platform made available by the jail authorities in collaboration with the National Informatics Centre. Therefore, there is no reason why he should insist for making ISD calls alone and not video calls through the platform made available to him.
W.P.(Crl.)294/2021 6
8. Even though it was submitted that the petitioner has not produced proof of marriage, Annexure-R3(a) indicates that he had been making regular calls to the said Mariam in the given telephone number and stated that she is his wife. It was also submitted during argument that earlier the son of the petitioner was working at Qatar and at that time he met the said Mariam who is a native of Philippines and they fell in love and entered into a contract of marriage at Qatar. Whatever it may be, even the petitioner, the father, accepts the said Mariam as his daughter-in-law and therefore the 3rd respondent need not insist any proof of marriage for allowing him to make calls.
9. The present facility of allowing him to make video calls through the E-Mulakat can be made use of by the son of the petitioner and since such advanced technology for making video calls is available, there is no point in insisting that he would make only ISD calls. Therefore, the Writ Petition is disposed of directing the 3 rd respondent to facilitate the son of the petitioner to make video calls through E-Mulakat service for which his son will have to make registration and other procedural formalities. No doubt, the expenses W.P.(Crl.)294/2021 7 of such video calls shall be met by the son of the petitioner and if he comes forward for making use of the said facility, he shall be allowed to make calls at least twice in a month.
The Writ Petition is disposed of as above.
Sd/-
K.HARIPAL JUDGE okb/3.12 //True copy// P.S. to Judge W.P.(Crl.)294/2021 8 APPENDIX OF WP(CRL.) 294/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER DATED 11.8.2017 IN CRL.M.P.NO.107/2017 PASSED BY THE HONOURABLE SPECIAL COURT FOR TRIAL OF NIA CASES, ERNAKULAM