Kerala High Court
Lithin A vs State Of Kerala on 4 March, 2022
Author: K.Haripal
Bench: K.Haripal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
FRIDAY, THE 4TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943
WP(CRL.) NO. 106 OF 2022
PETITIONER/S:
LITHIN A.
AGED 33 YEARS
S/O. AJITH KUMAR, ROHINI MANDIRAM, TKMC P.O., KARIKODE,
KOLLAM-691005 (SON OF AJITHKUMAR, CONVICT NO.3573, LODGED
IN CENTRAL PRISON AND CORRECTION HOME THIRUVANANTHAPURAM.
BY ADV V.VIJITHA
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS,
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 HIGH POWER COMMITTEE,
REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS,
SECRETARIAT, THIRUVANANTHAPURAM-695001.
3 KERALA PRISON AND CORRECTIONAL SERVICES,
REPRESENTED BY THE DIRECTOR GENERAL OF PRISON AND
CORRECTIONAL SERVICES, DEPARTMENT OF PRISON, POOJAPURA,
THIRUVANANTHAPURAM-695012.
4 THE SUPERINTENDENT,
CENTRAL PRISON AND CORRECTIONAL HOME, POOJAPPURA,
THIRUVANANTHAPURAM-695012.
5 JAIL ADVISORY BOARD,
CENTRAL PRISON, POOJAPURA, THIRUVANANTHAPURAM-695012,
REPRESENTED BY ITS CHAIRMAN.
SR.PP - SMT. SREEJA V.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
02.03.2022, THE COURT ON 04.03.2022 DELIVERED THE FOLLOWING:
W.P(Crl).106/22 2
JUDGMENT
The son of a life convict No.3573, lodged in Central Prison, Thiruvananthapuram, has approached this Court under Section 226 of the Constitution seeking to issue a writ of mandamus or any other appropriate writ or order directing respondents to grant ordinary parole to his father Ajith Kumar, C.No.3573, as provided under the Kerala Prisons and Correctional Services (Management) Rules, 2014, hereinafter referred to as the Rules, a writ of mandamus or any other appropriate writ or order or direction commanding the respondents to adopt the same yardstick adopted in the case of other convicts who were granted parole while considering the application of his father and to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to consider and pass appropriate orders for releasing him on parole and also for a declaration that the said Ajith Kumar is entitled to be released on parole.
2. Facts of the case are not in dispute. The said Ajith Kumar is a convicted prisoner, undergoing imprisonment in the Central Prison, Thiruvananthapuram. While he was undergoing sentence in the open jail at Nettukaltheri, he faced a disciplinary proceeding for having used mobile phone, thus his right to be released on parole was suspended for a period of W.P(Crl).106/22 3 one year. After the lapse of the said period, by Ext. P1 order dated 24.07.2020 he was granted ordinary parole for 30 days. However, claiming benefits under Exts.P2 and P3 he did not report back on the expiry of the said 30 days. Thereafter he moved this Court with W.P(C) No.20616 of 2020 claiming that he is also entitled to get the benefits of extension of time granted to other prisoners; this Court disposed of the matter holding that if he falls under any of the three categories of prisoners who were granted extension, he should be granted benefit of the Government Order. However, by Ext.P5 order, the 4 th respondent found that he is not entitled to get the benefit. Thereafter he, along with others, filed W.P.(C) No.21950/2020. Meanwhile, he reported back on 03.11.2020. According to the petitioner, it was under a bona fide mistake that he did not report back on the expiry of 30 days, that he is entitled to get the period of overstay regularised. The grievance of the petitioner is that the application for regularisation is not being considered by the respondents and for that reason his right to be released on ordinary parole is being denied. Incidentally it was also pointed out that on the strength of Ext.P8 order he was granted parole for 90 days as shown in Ext.P10 which stood extended till 26.09.2021. It is also not disputed that in Ext.P12 judgment of this Court, it was held that he does not fall within the three categories of prisoners who had W.P(Crl).106/22 4 been granted parole and later granted extensions of time through Exts.P2 and P3 orders. Whatever it may be, the grievance of the petitioner is that the application for regularisation of overstay of his father is being delayed purposely, that an unequal and unfair treatment is being meted out to him, he is being discriminated against in the matter of granting parole.
3. I heard the learned counsel for the petitioner and also the learned Senior Government Pleader.
4. The 4th respondent filed a statement denying the claims of the petitioner. According to him, the father of the petitioner is not entitled to get the benefit of Exts.P2 and P3, that he was purposely overstaying and that he did not make available himself for surveillance during the period of parole. According to him, he has not received any application for parole, that his representation for regularising the period of overstay is pending with the Government.
5. The learned counsel for the petitioner wanted to say that it was under a bonafide mistake that he did not report back on the expiry of 30 days of leave granted under Ext.P1. Referring to Rule 397(j) of the Rules, she said that the failure of the respondents in considering the representation for regularisation is not a ground for denying him parole in 2022. She also said W.P(Crl).106/22 5 that numerous applications were filed for parole which are not being considered, since representation for regularisation is pending. But the 4 th respondent has denied having received any such request for parole. Referring to Rule 397(j) the learned Senior Government Pleader said that without regularising the earlier period of overstay, he cannot be granted parole. According to the learned Government Pleader, parole granted through Exts.P10 and P11 stand on a different footing which was based on Ext.P8 Government Order issued in the special circumstances of covid-19 pandemic.
6. As stated earlier, the respondents have a case that the father of the petitioner was not susceptible to discipline; once he was found using mobile phone inside the prison, which is illegal; later he did not make himself available for surveillance during the period of leave and had gone to Ernakulam without intimating the Station House Officer concerned. Later, he overstayed for 102 days and his request for regularisation is under consideration.
7. The petitioner has assumed himself as one belonging to the third category of convicts, that is 192 convicts released by the government on the basis of the recommendations made by the High Power Committee. But I have no doubt that he cannot claim in any of the three categories mentioned W.P(Crl).106/22 6 therein. Whatever it may be, Rule 397(j) of the Rules stipulates that if a prisoner fails to report back to prison on the slated date of return, the jail authorities are entitled to suspend the benefit of leave for a period of one year from the date of re-admission or till such period when the unauthorised absence is regularised by the government. Rule 408 enables the authorities to regularise overstay if the alleged overstay was not purposeful, was bonafide and for reasons which were beyond one's control. It is for the convict to convince the authorities that he is entitled to get the period regularised. It is clear that unless the alleged period of unauthorised overstay is regularised, it appears, he cannot be granted parole. As rightly pointed out by the learned Senior Government Pleader, Exts.P10 and P11 stand on a different footing. Whatever it may be, it is essential that the representation for regularisation which is pending with the Government be considered and disposed of at the earliest. Therefore, the 1st respondent is directed to consider and dispose of the representation for regularisation within a period of two months from the date of receipt of a copy of this judgment.
Writ Petition (Criminal) is disposed of as above.
Sd/-
K.HARIPAL
JUDGE
okb/2.3.22
//True copy// P.S. to Judge
W.P(Crl).106/22 7
APPENDIX OF WP(CRL.) 106/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ABOVE PAROLE ORDER DATED
24.7.2020.
Exhibit P2 TRUE COPY OF THE ABOVE ORDER NO.1790/2020
DATED 14.8.2020.
Exhibit P3 TRUE COPY OF THE ABOVE ORDER NO.2170/2020
DATED 1.10.2020.
Exhibit P4 TRUE COPY OF THE ABOVE ORDER DATED 5.10.2020
IN WP(C) NO.20616/2020.
Exhibit P5 TRUE COPY OF THE COMMUNICATION ISSUED BY THE
4TH RESPONDENT TO THE FATHER OF THE
PETITIONER.
Exhibit P6 TRUE COPY OF THE ORDER DATED 28.10.2020 IN
WP(C) 21950/2020.
Exhibit P7 TRUE COPY OF THE NOTICE DATED NIL ISSUED BY
THE 4TH RESPONDENT.
Exhibit P8 TRUE COPY OF THE G.O.(RT) NO.1311/2021/HOME
DATED 5.5.2021.
Exhibit P9 TRUE COPY OF THE ORDER DATED 7.5.2021 IN WP(C)
21950/2020.
Exhibit P10 TRUE COPY OF THE PAROLE ORDER
NO.CP/42/3573/2021 DATED 11.5.2021.
Exhibit P11 TRUE COPY OF THE GOVERNMENT ORDER DATED
21.9.2021.
Exhibit P12 TRUE COPY OF THE JUDGMENT DATED 17.1.2022 IN
WP(C) 21950/2020.