Kerala High Court
Yousuf Haji vs State Of Kerala on 28 January, 2021
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942
WP(C).No.1959 OF 2021(T)
PETITIONER/S:
YOUSUF HAJI
AGED 64 YEARS
S/O. KUNHALAN KUTTY HAJI, PALLIPPURAM HOUSE,
KUTTIPPURAM, KOTTAKKAL.
BY ADVS.
SRI.R.ANIL
SRI.R.ANIL
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SHRI.THOMAS ABRAHAM
SHRI.MAHESH BHANU S.
SMT.S.LAKSHMI SANKAR
SHRI.RESSIL LONAN
SRI.T.ANIL KUMAR
RESPONDENT/S:
1 STATE OF KERALA
REP. BY THE HOME SECRETARY TO THE GOVT. OF
KERALA, HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, 695 001.
2 THE HOME SECRETARY TO GOVERNMENT OF KERALA,
HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, 695 001.
3 DIRECTOR GENERAL,
PRINSONS AND CORRECTIONAL SERVICES, PRINSONS
HEADQUARTERS, POOJAPPURA, THIRUVANANTHAPURAM,
PIN-695 012.
4 THE HIGH POWER COMMITTEE,
REPRESENTED BY HOME SECRETARY TO THE GOVT. OF
KERALA, HOME DEPARTMENT SECRETARIAT,
W.P.(C)No. 1959 of 2021
2
THIRUVANANTHAPURAM, 695 001.
5 SUPERINTENDENT,
CENTRAL PRISON, KANNUR, KANNUR DISTRICT, PN-670
004
OTHER PRESENT:
SR.PP.C.S.HRITHWIK
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.01.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C)No. 1959 of 2021
3
JUDGMENT
Dated this the 28th day of January, 2021 Petitioner is undergoing imprisonment at the Central Prison, Kannur pursuant to his conviction in S.C.No.435 of 2000 of the Additional Sessions Court, Manjeri. The petitioner was released on parole on 15.03.2020. In the wake of Covid-19 pandemic and its spread within prisons, the period of parole of persons above 65 years was extended from time to time. The Government had issued orders granting and extending parole/interim bail to prisoners, in compliance of the directions of the Honourable Supreme Court in suo motu Writ Petition No.1 of 2020. By G.O.(Rt) No.2552/2020 dated 01.11.2020, the petitioner and similarly situated prisoners aged above 65 years were required to report back within one month from the respective due date. At that point of time, some W.P.(C)No. 1959 of 2021 4 of the prisoners on parole filed W.P.(C) No.23595 of 2020 challenging the Government Order. The challenge was mainly on the ground that G.O.(Rt) No.2552/2020 dated 01.11.2020 was issued without consulting the High Powered Committee constituted in terms of the directives of the Honourable Supreme Court in Suo Motu Writ Petition No.1 of 2020. By Exhibit P3 judgment, this Court dismissed the writ petition and connected matters in the light of the decision of the High Powered Committee that all prisoners granted parole/interim bail should return to jail forthwith.
2. Thereafter, the Government issued G.O(Rt) No.3004/2020/Home dated 28.12.2020 specifying the schedule for re-entry of the prisoners. The petitioner being aged above 65, belongs to the third group specified in the order and should have reported back to prison within three days of W.P.(C)No. 1959 of 2021 5 15.01.2021.
3. In the writ petition, it is submitted that the petitioner is diagnosed with Coronary Artery Disease, Diabetes Mellites and Diabetic Kidney Disease. Exts.P1, P2 and P3 are produced to show that, even while undergoing sentence, the petitioner had to be hospitalised on many occasions. It is submitted that, while on parole, the petitioner had to be admitted in ICU from 13.01.2021 to 17.01.2021. Exts.P4 and P5 are produced in support of the said submission. According to the petitioner, he has been advised to avoid mental stress and depression, to be on healthy diet and to exercise regularly so as to stabilise his physical condition. Therefore, compelling the petitioner to return to prison immediately would pose serious threat to his life. Pointing out these aspects and seeking extension of the parole period, petitioner has filed Ext.P7 W.P.(C)No. 1959 of 2021 6 representation before the High Powered Committee. The prayer in this writ petition is for a direction to the High Powered Committee to take a decision on Ext.P7 and to direct respondents 1 to 3 to extend the petitioner's parole period till such decision.
4. The prayer being to direct the High Powered Committee to take a decision on Ext.P7 representation, it would be apposite to have a look at the directions of the Honourable Supreme Court in Suo Motu writ petition No.1 of 2020. The relevant portion of the direction is extracted hereunder:
"We direct that each State/Union Territory shall constitute a High Powered Committee comprising of (1) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director General of Prison(s), to determine which class of prisoners can be released on parole or on interim bail for such period as may be thought appropriate. For instance, the State/Union Territory could consider the release of prisoners who have been convicted W.P.(C)No. 1959 of 2021 7 or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum. It is made clear that we leave it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate."
5. It is therefore evident that the role of the High Powered Committee is 'to determine the class of prisoners' to be released on parole or on interim bail and the period for which such parole/interim bail can be granted. The High Powered Committee is also given the liberty to 'determine the category of prisoners' who should be released as aforesaid, depending upon the nature of offence, the number of years to which he/she has been sentenced or the severity of the offence with which he/she charged with and is W.P.(C)No. 1959 of 2021 8 facing trial or any other relevant factor. Being so, the High Powered Committee cannot be compelled to consider the individual representations of prisoners on parole. Moreover, parole granted to the petitioner and similarly situated prisoners is a concession extended by the Government in accordance with the directions issued by the Honourable Supreme Court, with the objective of minimising the spread of Covid-19 pandemic within jails. After dismissal of W.P(C).No.23595 of 2020 and connected cases, in the light of the decision of the High Powered Committee that all prisoners on parole/interim bail should report back immediately, the Government issued G.O(Rt) No.3004/2020/Home dated 28.12.2020 specifying the schedule for re-entry of the prisoners on parole/interim bail. The petitioner having not challenged the Government order, should have re- entered the prison within three days of W.P.(C)No. 1959 of 2021 9 15.01.2021. As far as the contention based on medical grounds is concerned, Chapter XLII of the Kerala Prisons & Correctional Services (Management) Act and Rules contain provisions for treatment and hospitalisation of prisoners and the request, if any, made by the petitioner can be considered in accordance with those provisions. can be considered in accordance with those provisions.
For the reasons aforementioned, the writ petition is dismissed.
Sd/-
V.G.ARUN JUDGE Scl/28.01.2021 W.P.(C)No. 1959 of 2021 10 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE OUTPATIENT CARD ISSUED FROM MEDICAL COLLEGE HOSPITAL, CALICUT DATED 13.12.2017 EXHIBIT P2 THE TRUE COPY OF THE OUTPATIENT CARD ISSUED FROM MEDICAL COLLEGE HOSPITAL, CALICUT DATED 15.1.2018.
EXHIBIT P3 THE TRUE COPY OF THE OUTPATIENT CARD ISSUED FROM MEDICAL COLLEGE HOSPITAL, CALICUT DATED 20.08.2018.
EXHIBIT P4 THE TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED FROM ALMANS HOSPITAL, KOTTAKKAL DATED 13.1.2021.
EXHIBIT P5 THE TRUE COPY OF THE DISCHARGE SUMMARY ISSUED FROM ALMANS HOSPITAL, KOTTAKKAL DATED 17.1.2021.
EXHIBIT P6 THE TRUE COPY OF THE ORDER OF THE HON'BLE HIGH COURT IN CRL.M.A. NO. 1 OF 2021 IN CRL. APPEAL NO. 107 OF 2018 DATED 15.1.2021.
EXHIBIT P7 THE TRUE COPY OF THE REPRESENTATION TO THE 4TH RESPONDENT DATED 20.01.2021.
EXHIBIT P8 THE TRUE COPY OF THE COVERING LETTER TO THE SECOND RESPONDENT.
EXHIBIT P8 A THE TRUE COPY OF THE POSTAL RECEIPT DATED 20.01.2021.