Kerala High Court
Ismayil P.P vs State Of Kerala
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 17TH DAY OF JANUARY 2018 / 27TH POUSHA, 1939
WP(C).No. 39685 of 2017
PETITIONER(S):
ISMAYIL P.P.,
AGED 71, S/O.KOCHAHAMMAD, RUBAIDA VILLA, NEAR EDAKKAD
POLICE STATION, MUZHAPPILANGAD.P.O, KANNUR DISTRICT, PIN-670 661.
BY ADVS. SRI.K.S.MADHUSOODANAN
SRI.M.M.VINOD KUMAR
SRI.P.K.RAKESH KUMAR
SRI.K.S.MIZVER
SMT.S.JESSIN
RESPONDENT(S):
1. STATE OF KERALA,
TO BE REPRESENTED BY SECRETARY, HOME DEPARTMENT,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR GENERAL OF PRISONS(KERALA)PRISONS HEAD
QUARTERS, POOJAPPURA, THIRUVANANTHAPURAM-695 012.
3. THE SUPERINTENDENT OF JAIL,
CENTRAL PRISON, KANNUR-670 001.
4. DISTRICT PROBATIONARY OFFICER,
DISTRICT OFFICE, THALASSERY-670 101.
BY SPL.PUBLIC PROSECUTOR SRI.P.NARAYANAN FOR A.G
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 17-01-2018, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 39685 of 2017
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 PHOTOCOPY OF JUDGMENT IN W.P.(C)29334/2017 OF THE
HON'BLE HIGH COURT DATED 11.10.17.
EXHIBIT P2 PHOTOCOPY OF PAROLE APPLICATION DATED 19.10.17
TO 3RD RESPONDENT.
EXHIBIT P2(A) PHOTOCOPY OF RECEIPT DATED 19.10.17 FROM 3RD RESPONDENT.
EXHIBIT P3 PHOTOCOPY OF R.T.A.APPLICATION TO S.I.EDAKKAD DATED 09.11.17.
EXHIBIT P4 PHOTOCOPY OF REPLY DATED 25.11.17 FROM S.I.EDAKKAD.
EXHIBIT P5 PHOTOCOPY OF ORDER OF 3RD RESPONDENT BEARING NO.CPK/R-224/17
DATED 23.11.17.
EXHIBIT P6 PHOTOCOPY OF RTA APPLICATION TO 4TH RESPONDENT DATED 30.11.17.
EXHIBIT P7 PHOTOCOPY OF JUDGMENT IN W.P.(C)NO.27476/12 DATED 29.5.13.
EXHIBIT P8 PHOTOCOPY OF THE ORDER IN W.P.(C)32340/17 DATED 27.11.17.
RESPONDENT(S)' EXHIBITS & ANNEXURES :
ANNEXURE R3(A): TRUE COPY OF THE APPLICATION OF THE PETITIONER TO
THE 3RD RESPONDENT DATED 19.10.2017.
ANNEXURE R3(B): TRUE COPY OF THE COMMUNICATION NO.R-224/17 DATED 19.10.2017
OF THE 3RD RESPONDENT TO THE DISTRICT POLICE CHIEF, KANNUR
AND DISTRICT PROBATION OFFICER, THALASSERY.
ANNEXURE R3(C): TRUE COPY OF THE COMMUNICATION NO.127/DCRB/PRL/2017C
OF THE DISTRICT POLICE CHIEF, KANNUR TO THE 3RD RESPONDENT
DATED 02.11.2017.
ANNEXURE R3(D): A COPY OF THE COMMUNICATION NO.DPO/T/M.E-73/17-18 OF
THE DISTRICT PROBATION OFFICER, KANNUR TO THE 3RD RESPONDENT
DATED 07.11.2017.
ANNEXURE R3(E): COPY OF THE LETTER NO.C.P.K/R-224/17 OF
THE 3RD RESPONDENT TO THE PETITIONER DATED 23.11.2017.
//TRUE COPY//
P.S.TO JUDGE
Msd.
B. KEMAL PASHA, J.
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W.P.(C) No.39685 of 2017
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Dated this the 17th day of January, 2018
JUDGMENT
The petitioner's son 'Rabah' (C.No.94/16) was initially convicted and sentenced for the offence under the Unlawful Activities (Prevention) Act (hereinafter referred to as 'the UAPA') and also under the Arms Act. Both the convict and the CBI preferred appeals. Allowing the appeal filed by the convict in part, this Court acquitted him for the offence under the UAPA. Allowing the appeal filed by the CBI, this Court enhanced the sentence of rigorous imprisonment for five years, imposed on him for the offence under the Arms Act, to rigorous imprisonment for six years.
2. Still, it seems that the jail authorities and also the District Probation Officer are taking a view that the son of the petitioner is a convict under the UAPA. When he has been acquitted of that offence, he cannot be considered as a convict undergoing sentence for the offence under the UAPA.
3. It seems that through Annexure-R3(d), the District Probation Officer has not recommended the granting of parole to the son of the petitioner. But on a perusal of the entire W.P.(C) No.39685 of 2017 2 report it seems that good opinion about the said convict has been recorded by the District Probation Officer; but at the same time, in the last portion unnecessarily it has been stated that the District Probation Officer expresses a wish that parole need not be granted to the convict.
4. It is not for the District Probation Officer to decide whether parole has to be granted or not. As per Rule 397 of the Kerala Prisons and Correctional Services (Management) Rules, 2014, the authority to grant the first ordinary parole is the Director General (Prisons). Of course, as per Rule 397(h), there must be reports from the Sub Inspector of Police concerned and also the District Probation Officer. Along with that, the report of the Superintendent of the Prison concerned should also be forwarded to the Director General (Prisons).
5. However, in this case, the Superintendent of the Central Prisons, Kannur, where the said convict is undergoing sentence, has not forwarded the application for parole and the report from the Sub Inspector of Police as well as the District Probation Officer, to the Director General (Prisons). It is for the Director General (Prisons) to take a decision in the matter.
6. It has come out that the said convict has undergone W.P.(C) No.39685 of 2017 3 sentence for almost 4B= years out of the total period of six years. So far ordinary parole has not been given to the said convict. The Superintendent of Central Prison, Kannur shall immediately forward the application for parole along with the said report to the Director General (Prisons). The Director General (Prisons) shall follow the guidelines given by this Court in judgment dated 11.01.2018 in W.P.(C) No.35750/2017 and pass orders on the application for parole.
7. It is made clear that the Director General(Prisons) is not bound by the recommendations of the police or the District Probation Officer. The Director General of Prisons shall take an independent view in the matter after perusing the reports. The Superintendent of Central Prison, Kannur shall forward the said application with the reports as aforesaid forthwith. The Director General (Prisons) shall pass orders on the application, as expeditiously as possible, at any rate, within a period of fifteen days from the date of receipt of the application and reports.
Sd/-
B. KEMAL PASHA, JUDGE.
sd
// True Copy // P.A. to Judge