Kerala High Court
Loucy Babu vs Director General Of Prisons And ... on 26 April, 2016
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 20TH DAY OF DECEMBER 2016/29TH AGRAHAYANA, 1938
WP(C).No. 34932 of 2016 (N)
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PETITIONER(S):
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LOUCY BABU,
SHIJU BHAVAN,
PATHIRICKAL P.O.,
PATHANAPURAM, KOLLAM DISTRICT.
BY ADVS.SRI.M.T.SURESHKUMAR
SMT.P.MAYA
RESPONDENT(S):
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1. DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL SERVICE
PRISON HEAD QUARTERS, POOJAPPURA,
THIRUVANANTHAPURAM 695 012.
2. SUPERINTENDANT,
WOMEN'S PRISON, VIYOOR, THRISSUR
680 010
3. STATE OF KERALA,
REPRESENTED BY THE PRINCIPLE SECRETARY,
DEPARTMENT OF HOME, GOVERNMENT SECRETARIATE,
THIRUVANANTHAPURAM 695 001.
BY SR.G.P. GOVT. PLEADER SUMAN CHAKRAVARTHY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
14-12-2016, THE COURT ON 20/12/2016 DELIVERED THE FOLLOWING:
WP(C).No. 34932 of 2016 (N)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF THE ORDER DATED 26/4/2016 IN CRL.M.A
NO.2205/2016
P2 TRUE COPY OF THE JUDGMENT DATED 13/6/2016 IN WPC
NO.19100 OF 2016 BEFORE THIS HON'BLE COURT
P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE
2ND RESPONDENT ON 11/7/2016 ALONG WITH THE COURIER RECEIPT
P4 TRUE COPY OF THE ORDER DATED 15/7/2016 PASSED BY THE
2ND RESPONDENT
RESPONDENT(S)' EXHIBITS
----------------------- NIL
/TRUE COPY/ PS TO JUDGE.
CR
SUNIL THOMAS, J.
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W.P.(C).No.34932 of 2016
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Dated this the 20th day of December, 2016
JUDGMENT
The 65 year old mother of a life convict undergoing imprisonment in women's prison for offence punishable under Section 302 IPC along with other offences, has approached this court seeking parole for her daughter.
2. The daughter of the petitioner was sentenced for life imprisonment on 11/6/2010 in SC No. 130/2010. Petitioner claim that she is suffering from various ailments including spinal disc problem and suffering from acute joint pain. She had to undergo replacement of both her knee joints and she is struggling to take care of herself. Compelled by the circumstances, the grand daughter, who is studying in 6th standard, is now accommodated in the school hostel. The grievance of the petitioner is that the daughter had requested for parole which was rejected by the second respondent on extraneous considerations. Hence, the petitioner submitted Ext.P3 representation requesting to grant her ordinary parole or to inform the reason why her daughter's request was declined. By Ext.P4 communication she was informed that daughter had exhausted the ordinary parole due to her and hence W.P.(C) No.34932/2016 2 her request could not be acceded to. Hence,petitioner sought quashing of Ext.P4 and directing respondents to grant parole to the daughter of the petitioner for a period of three months by allowing Ext.P3 application.
3. Facts discernible from the available records show that the daughter of the petitioner had initially availed parole for 15 days during the calender year. Later when parole was sought, it was denied by the jail authorities on the ground that model code of conduct issued by the Election Commission had interdicted granting of parole during the relevant time. Thereafter, she sought suspension of sentence. A Division Bench of this Court by order dated 26/4/2016, instead of suspending the sentence granted parole for one month. The necessity that was urged before the Division Bench was that the girl child of the convict required admission in a school and the presence of the mother was imperatively essential, when there were no other immediate family members to take care of the child. The Division Bench granted parole for a period of one month taking into consideration the peculiar circumstances of the case. Thereafter, she preferred W.P. (C) No.19100/2016 before this Court seeking extension of parole on the ground that her attempt to obtain admission to the child in a school failed and hence, she needed 15 more days parole, to procure admission for the child in any other school. She had earlier preferred an application before the Superintendent of women's jail W.P.(C) No.34932/2016 3 seeking extension of parole, which was declined. Hence, she sought appropriate direction in the writ petition. Considering the special circumstances, the writ petition was disposed of directing the Superintendent of Jail to consider her application and to grant 15 more days parole if there was no legal impediment. The present writ petition is submitted by her mother seeking parole for her daughter on a premise that 45 days parole granted by this Court was in exercise of its discretionary jurisdiction and hence cannot be reckoned as part of the ordinary parole of 60 days which is available as per Rules.
4. Learned Public Prosecutor who opposed the application submitted that the criminal appeal filed by her challenging the conviction was dismissed confirming the conviction and sentence. The petitioner herein had submitted Ext.P3 application seeking reason for the refusal to grant parole. She contended that the daughter had availed only 15 days parole and that, 45 days parole was granted by this Court by Exts.P1 and P2 considering the special circumstances and on purely humanitarian considerations. By Ext.P4 reply, petitioner was informed that daughter had already availed parole totaling to 60 days and thereby had exhausted permissible limit of parole in accordance with Rule 397of the Prison and Correctional Services (Management) Rules 2014. It was contended that the convict had exhausted permissible limit of 60 days of ordinary parole in a calendar year. A detailed statement W.P.(C) No.34932/2016 4 was filed by the Superintendent of Women's Prison and Correctional Home,touching upon the details of the Parole availed by the convict.
5. According to the Superintendent, on 1/1/2016, she was granted 15 days parole. Thereafter, by Ext.P1 order of the Division Bench, 30 days Parole was granted from 3/5/2016 to 4/8/2016. Subsequently, by Ext.P2 order of this Court, she was granted 15 days parole from 10/6/2016 to 25/6/2016. She was released on parole for a period of 60 days in a calender year and thereby she had exhausted the statutory limit.
6. Opposing the above claim, the learned counsel for the petitioner contended that the parole granted by this court by Exts.P1 and P2 orders were parole granted by this Court in exercise of its Constitutional function, considering the humanitarian aspects involved and in exercise of its discretionary power. It cannot be considered as part of the normal parole which the convict is entitled to. It was further contended that the courts are vested with such prerogative powers in exercise of its special jurisdiction, considering the fundamental rights of the citizens and their right to life.
7. The narrow campus on which the entire question revolves is whether parole granted by Exts.P1 and P2 can be reckoned as the ordinarily parole permissible under Rule 397 of the Rules. It in turn depends on the question whether the courts are empowered W.P.(C) No.34932/2016 5 under Law to exercise any discretion to grant parole in excess of the normal parole entitled to a convict under the statutory Rules framed.
8. Section 2 (xxxi) of the Prison and Correctional Services (Management) Act 2010 (hereinafter referred to as 'the Act" ) defines 'parole' as a system of releasing the prisoners temporarily for such period by following such procedures and conditions, as may be, prescribed. Chapter XVI deals with remission, parole, over stay and premature release. Section 73 deals with release on parole. . It provides that the State Government may, subject to such conditions may be prescribed, release on parole for such period as it may deem necessary, any convict prisoner in case of any serious illness or death of any member of the prisoner's family or of his nearest relatives or for any other sufficient cause. Chapter XXX Rule 397 of the Kerala Prison and Correctional Services (Management) Rule 2014 provides two types of parole. One ordinary parole and the other one is extraordinary parole. The ordinary paroles are provided for the various reasons and in the manner as provided under Rule 397. Rule 397B provides that in a calender year the convict is entitled to 60 days normal parole. It shall not be less than 15 days and not more than 30 days at a time. Rule 400 deals with extraordinary leave which may be granted in the three specific emergent situations mentioned therein. Hence, extraordinary leave can be granted only for the W.P.(C) No.34932/2016 6 reason mentioned therein. Prisoner will be entitled to ordinary leave for a period of 60 days in a calender year. If the parole application is rejected, an appeal is permissible under Rule 404, to the specified authorities.
9. This being the situation, it has to be considered whether 45 days period granted by the orders of this Court should be reckoned to form part of 60 days parole or it should be considered as over and above the statutory limit of 60 days entitled to the prisoner. In the nature of the scheme of the Act and Rules, it is clear that the Government is vested with a residuary power to grant leave subject to the statutory reasons mentioned therein. All other types of parole are covered by Rules 397 and 400.
10. The learned counsel for the revision petitioner contented that the Supreme Court in Babulal v. State of West Bengal (AIR 1975 SC 606) had held that the Courts in India have generally favoured the view that the prisoners who have been incarcerated or kept in prison without trial for a long time, should be released on parole to maintain unity of family. In the above decision the Hon'ble Supreme Court while dealing with temporary parole of detenues under Section 15 of Maintenance of Internal Security Act 1971 held that calculated risks by release for short periods may, perhaps be a social gain, the beneficial jurisdiction being wisely exercised. Learned counsel further referred to the decision in Gurdeep Bagga v. Delhi Administration (1987 W.P.(C) No.34932/2016 7 Cr.LJ.1419), wherein the court dealing with Section 31C of Prisoners Act 1900,held that lenient view should be taken while granting annual leave to maintain unity of family. It was a case wherein the petition by life convict for parole on the ground of illness of mother was rejected by the High Court.
11. Learned counsel for the petitioner relied further on the two decisions of the Delhi High Court. In Somesh Gupta v. State of NCT of Delhi (2010(1) Crimes 864 (Del.), wherein the request for release on parole to enable the petitioner to file SLP in the Supreme Court against his conviction under section 376 (2) (g) IPC was rejected by the Government. The Delhi High Court on an evaluation of the earlier decision in Sunil Fulchand Shah v Union of India and others (2000) 3 SCC 409) held that parole may be granted by the Government or its functionaries in accordance with parole Rules and administrative instructions framed by the Government. But the jurisdiction of the High Court under Article 226 of the Constitution or of Supreme Court under Articles 32,136 or 142 of the Constitution can direct the temporary release of the detenue,where request of the detenue to be released on parole for a specified reason and or for a specified period, has been, in the opinion of the Court, unjustifiably refused or where in the interest of justice, such an order of temporary release is required to be made. That jurisdiction, however, has to be sparingly exercised by the Court, even when it is exercised by the W.P.(C) No.34932/2016 8 Court. Relying on the various other Supreme Court decisions, the Delhi High Court held that the denial of parole on the ground that free legal aid was available in jail and SLP could be filed from jail was not an appropriate ground and the impugned order was liable to be set aside. In Mohinder Bhatti v. State of the NCT of Delhi ( 2010 (4) Crimes 27 ( Del.) the request for parole on the ground of engaging a senior lawyer for filing the SLP before the Supreme Court and for arranging funds for medical treatment of his mother was rejected. In the writ proceeding, the Delhi High Court held that ordinarily, grant of parole is an administrative function of the Government and the Courts do not entertain such a request,if made directly. However, in case the request made by a convict for parole is turned down by the Government and the said order appears to be based on extraneous and/or irrelevant consideration, the courts can exercise their discretion under Article 226 of the Constitution of India and direct grant of parole to a convict.
12. Relying on the above decisions, learned counsel contended that in this case the request for parole was rejected on invalid grounds and hence liable to be interfered by this Court. Hence, it was urged that the convict is entitled for parole.I am not inclined to accept the above contention. All the decisions cited above were cases wherein the courts interfered in its power under the Constitution of India on the ground of justifiability of the W.P.(C) No.34932/2016 9 grounds for administrative action. When the Acts confer on the Government the power to exercise its jurisdiction for parole for "sufficient cause", the adequacy and sufficiency of the reasons stated will be justiciable in a writ proceeding. The court can definitely take into consideration whether the rejection was based on valid material ground or whether it was based on extraneous and /or irrelevant consideration. Hence, in an appropriate case wherein an application made under Provisions of the Act or Rules made there under was rejected on extraneous or irrelevant consideration, the court in exercise of its prerogative jurisdiction can interfere and pass appropriate orders and not other wise. Such a power can be exercised on a decision under Section 73 of the Act.
13. In the case at hand, the petitioner is seeking parole for a period in excess of what statutory Rules permit. No court can grant a relief in excess of the time limit granted by the Act or Rules. The courts are not repository of any such discretionary power and grant of parole by the Constitutional court is not a largesse or a bounty to be granted at its discretion . The court can only be grant parole within the above statutory provisions. The contention of the learned counsel for the petitioner that the court in exercise of its writ jurisdiction is entitled to grant parole even above the period that the Rule permits is not sustainable.
In the light of the above, I find no merit in the contention W.P.(C) No.34932/2016 10 taken by the learned counsel for the petitioner. Petition fails and is dismissed reserving the right of the petitioner herein to move other Forum if permissible.
Sd/-
SUNIL THOMAS Judge dpk /true copy/ PS to Judge.