Kerala High Court
Loucy Babu vs Director General Of Prisons And ... on 20 December, 2016
Author: Mohan M. Shantanagoudar
Bench: Mohan M.Shantanagoudar, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
THURSDAY, THE 19TH DAY OF JANUARY 2017/29TH POUSHA, 1938
WA.No. 117 of 2017 () IN WP(C).34932/2016
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AGAINST THE JUDGMENT IN WP(C) 34932/2016 DATED 20-12-2016
APPELLANT(S):
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LOUCY BABU, AGED 60 YEARS
SHIJU BHAVAN,
PATHIRICKAL P.O.,
PATHANAPURAM, KOLLAM DISTRICT.
BY ADV. SRI.M.REVIKRISHNAN
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 DISTRICT- 680 010
3. STATE OF KERALA
REPRESENTED BY THE PRINCIPLE SECRETARY,
DEPARTMENT OF HOME, GOVERNMENT SECRETARIATE,
THIRUVANANTHAPURAM 695 001.
SPL. GOVERNMENT PLEADER SRI. SUMAN CHAKRAVARTHY FOR DGP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19-01-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sou.
MOHAN M. SHANTANAGOUDAR, CJ
&
ANIL. K. NARENDRAN, J
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W.A. No. 117 of 2017
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Dated this the 19th day of January, 2017
J U D G M E N T
Mohan M. Shantanagoudar, CJ The judgment dated 20.12.2016 passed in W.P(C).34932 of 2016 is called in question in this appeal by the unsuccessful writ petitioner. The appellant is the mother of the life convict who is undergoing imprisonment in the Women's prison, Viyor for offence punishable under section 302 IPC along with other offences.
2. She approached this Court in W.P(C). No.34932 of 2016 seeking Parole for her daughter. The learned Single Judge, in the impugned judgment, considered the various aspects of the matter and having regard to the conduct of the mother in repeatedly approaching one or the other forum seeking parole, dismissed the writ petition, more particularly because the appellant's daughter was already released on parole for more than the statutory period of 60 days as provided under Rule 397 W.A.No.117/17 2 (B) of the Kerala Prison and Correctional Services (Management) Rules, 2014 ('the Rules' for short).
3. Learned counsel for the appellant, taking us to the material on record, submits that the granddaughter of the appellant, i.e., the daughter of the convict, is studying in 6th standard and she is now accommodated in a school hostel. The appellant claims that she is 60 years of age and is suffering from various ailments, including spinal disc problem, etc. Since nobody else is there to look after the child, she claimed parole for her daughter for a further period by filing the writ petition.
4. It is not in dispute that the appellant's daughter is convicted for offence punishable under Section 302 IPC along with other offences in S.C. No.130 of 2010 on the file of the Additional Sessions Judge (Fast Track), Mavelikkara. The judgment of the trial court is confirmed by this Court in Crl. Appeal No.1370 of 2010. Till this day, the life convict is granted parole on more than ten occasions.
5. The appellant's daughter initially availed parole for 15 days. Later, parole was denied by the jail authorities on the ground that the model code of conduct issued by the Election Commission interdicted granting of parole during the relevant W.A.No.117/17 3 point of time. A Division Bench of this Court, by Ext.P1 order in Crl. M.A. No.2205 of 2016 in Crl. Appeal. No.1370 of 2010, instead of suspending the sentence, granted parole for one month. While granting such order on 26.4.2016, it was clearly noted that on more than ten occasions, parole was granted in favour of the convict. However, the convict was released on parole once again keeping in mind that her minor child needed to be admitted to school. Thereafter, W.P(C). No.19100 of 2016 was filed before this Court seeking extension of parole on the ground that her attempt to obtain admission to the child in the school failed and hence she needed 15 more days' parole to secure admission to the child in any other school. During the relevant point of time, the jail authorities declined the prayer for extension of parole. W.P(C). No.19100 of 2016 came to be disposed of directing the jail authorities to consider her application and grant 15 more days' parole if there is no legal impediment. Thereafter, another writ petition, W.P(C). No.34932 of 2016, was filed seeking parole for the life convict on the premise that the 45 days' parole granted by this Court was in exercise of power under Article 226 of the Constitution of India and hence, the same cannot be reckoned as part of the ordinary W.A.No.117/17 4 parole of 60 days which is available as per Rules. The said contention is rightly repelled by the learned Single Judge by the impugned judgment.
6. The only question to be decided is as to whether the parole granted by Ext.P1 and P2 orders of this Court can be reckoned as permissible under Rule 397 of the Rules. In order to decide this question, this Court will have to decide first as to whether, under law, this Court has got jurisdiction to grant parole.
7. Section 2(xxxi) of the Prison and Correctional Services (Management) Act 2010 defines 'parole' as the system of releasing the prisoners temporarily for such period by following due procedures and conditions as may be, prescribed. Section 73 deals with release on parole. The same specifies that the State Government may, subject to such conditions as may be prescribed, release on parole for such period as it may deem necessary, any convicted prisoner in case of any serious illness or death of any member of the prisoner's family or of any of his nearest relatives or for any other sufficient cause.
8. Under the Prison and Correctional Services (Management) Rules, 2014, two types of paroles are granted. W.A.No.117/17 5 One is ordinary parole and the other is extraordinary parole. Ordinary paroles are provided for various reasons and in the manner as provided under Rule 397. Rule 397(B) provides that in a calender year, the convict is entitled to 60 days normal parole and it shall not be less than 15 days and not more than 30 days at a time. In the nature of the scheme of the Act and Rules, it is clear that the Government is vested with the residuary power to grant parole subject to the statutory reasons mentioned therein. There cannot be any dispute that the Rules relating to parole 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.
9. Since it is the jurisdiction of the State Government to release the life convict on parole, this Court, by exercise of jurisdiction under Article 226 of the Constitution of India, may direct the State Government to consider the prayer of the convict seeking parole. When the Act and the Rules made thereunder confer on the Government the power to exercise its jurisdiction for parole for sufficient cause, the adequacy and sufficiency of the reasons stated give rise to justiciable issue in a writ proceedings. While dealing with such issue, the Court can W.A.No.117/17 6 definitely take into consideration whether the rejection was based on valid grounds as it was based on extraneous considerations. Hence, in appropriate cases, wherein an application for parole is rejected on extraneous or irrelevant consideration, the Court in exercise of its prerogative jurisdiction can interfere and pass appropriate orders. That does not mean that this Court itself will grant parole.
10. There cannot be any dispute that even such directions by the courts of law needs to be issued only in rarest of rare circumstances. In view of the same, it cannot, under any stretch of imagination, be concluded that the directions issued in Exts. P1 and P2 orders should be treated as orders of parole issued by this Court, exercising the extraordinary jurisdiction under Article 226 of the Constitution of India. Such orders should be taken as directions issued by this Court to the concerned authorities to consider the prayer of the convict/relative of the convict to consider their application for release on parole.
11. Since grant of parole is an administrative function of the State Government and as the courts do not entertain such requests, it is not open for the appellant to contend that the W.A.No.117/17 7 order passed by this Court should not be reckoned for the purpose of calculating the period of parole of 60 days as contained in Rule 397(B) of the Rules. No court can grant a relief of parole in excess of the time limit granted by the Act or Rules. In this regard, the learned Single Judge is justified in observing that the courts are not repository of any such discretionary power and grant of parole by the Constitutional Court is not a largesse or bounty to be granted at its discretion. The Court need to direct for grant of parole keeping in mind the statutory provisions. Since no authority have got power to grant parole for more than 60 days in a calender year and as the appellant's daughter (life convict) has already exhausted those 60 days parole period during the calender year, we do not find any ground to interfere with the impugned judgment. The appeal fails and the same stands dismissed.
Sd/-
Mohan M. Shantanagoudar, Chief Justice Sd/-
Anil. K. Narendran, Judge sou.23/1.
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