Kerala High Court
Sandhya vs The Secretary on 11 May, 2023
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
Thursday, the 11th day of May 2023 / 21st Vaisakha, 1945
WP(CRL.) NO. 314 OF 2023(S)
PETITIONER:
SANDHYA, AGED 44, W/O JOSHI, AANJILIVELLIL HOSE,
CHEMPU P.O, VAIKOM, KOTTAYAM DISTRICT - 686 608.
RESPONDENTS:
1. THE SECRETARY, HOME DEPARTMENT, STATE OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM- 695 001.
2. DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL SERVICES, PRISONS
HEADQUARTERS, POOJAPPURA, THIRUVANANTHAPURAM- 695 012.
3. THE SUPERINTENDENT, CENTRAL PRISON, VIYYUR, THRISSUR DISTRICT- 680
010.
4. THE STATION HOUSE OFFICER, VAIKOM POLICE STATION, KOTTAYAM
DISTRICT, PIN - 686 141.
Writ petition (criminal) praying inter alia that in the
circumstances stated in the affidavit filed along with the WP(Crl.) the
High Court be pleased to direct the respondent no. 1 to 3 to grant
ordinary leave/parole to the husband of the petitioner by extending the
benefit of Rule 397 of Kerala Prisons and Correctional Services
(Management), Rules, 2014 on regular basis pending disposal of the above
writ petition.
This petition again coming on for orders upon perusing the
petition and the affidavit filed in support of WP(Crl.), this Court's
Order dated dated 11/04/2023 and upon hearing the arguments of M/S
P.MOHAMED SABAH, LIBIN STANLEY, SAIPOOJA, SADIK ISMAYIL, R.GAYATHRI,
M.MAHIN HAMZA & ALWIN JOSEPH, Advocates for the petitioner and of PUBLIC
PROSECUTOR for the respondents, the court passed the following:
P.T.O.
ALEXANDER THOMAS & C. JAYACHANDRAN, JJ.
=====================================
W. P. (Crl.) No. 314 of 2023
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Dated this the 11th day of May, 2023
ORDER
We had disposed the case and dictated the judgment on 11.4.2023. Before signing the judgment, we found that it is highly imperative to secure some clarifications from both sides. Hence, this case has been listed as "to be spoken to" today.
2. We find that, in many cases, applications are filed under Sec.389 of the Cr.P.C. in pending Criminal Appeals filed by prisoner convicts, praying for interim suspension and release on interim bail basis, on grounds like illness/death/marriage etc., of relatives and even illness of the prisoner convict etc. Sec.73 of the Kerala Prisons & Correctional Services (Management) Act, 2010 (hereinafter referred for short as 'The Prisons Act') deals with 'Release on parole' and the grounds cited in Sec.73 are cases of serious illness or death of any members of the prisoner's family or any of his nearest relatives or for any sufficient cause. However, the power vested under Sec.73 can be exercised only by the State Government. We are also told that the rules framed under the W. P. (Crl.) No. 314/ 2023 ..2..
abovesaid Act does not contain any provision relating to the conditions upon which the State Government may release a prisoner on parole, in terms of Sec.73. Sec.78 of the Act deals with 'Leave'. Rule 397 of the Kerala Prisons & Correctional Services (Management) Rules, 2014, framed under the abovesaid Act, deals with 'ordinary leave' and Rule 400 thereof deals with 'emergency leave'. The grounds for availing 'emergency leave' in terms of Rule 400 are cases of serious illness, death, etc., of near family relatives covered by that Rule and also, cases of marriage of near relatives, etc.
3. Prima facie, we are persuaded to take the view that, if the grounds for seeking 'interim bail' are grounds covered by Sec.73 or Sec.78 or the provisions of the abovesaid Rules, like Rule 400, then the plea will have to be taken up before the competent authority under the Prisons Act and the Rules framed thereunder. Going by the line of decisions of the Apex Court, it is seriously open to doubt, as to whether the discretionary power under Sec.389 of the Cr.P.C. for suspension of sentence and release of the W. P. (Crl.) No. 314/ 2023 ..3..
prisoner on bail can be availed in cases mentioned hereinabove. Hence, in the interest of justice, we are of the view that both sides will have to be heard in detail on these aspects.
4. The 2nd respondent-Director General of Prisons will immediately furnish instructions to the learned Prosecutor, as to whether they have a consistent and regular practice of considering and granting 'emergency leave' in cases of serious illness, death, marriage, etc., of close relatives covered by the Rules and as to whether ordinarily, when the prisoner convict may not be eligible for grant of 'ordinary leave' in terms of Rule 397 such prisoners could be granted 'emergency leave' for genuine and bonafide grounds like death, serious illness, marriage, etc., of their close relatives and also, as to whether such pleas are dealt with expeditiously, etc. The 2nd respondent-Director General of Prisons should give written instructions regarding the consistent practice being following by the Prison's Department on the abovesaid aspects and also, as to how situations in which the prisoner with illness is dealt with, as per the rules and norms. The cases of W. P. (Crl.) No. 314/ 2023 ..4..
exceptions for eligibility for grant of 'ordinary leave' and 'emergency leave' may also be apprised to this Court, in terms of the provisions of the Rules. Both sides will also apprise this Court as to whether there could be contingencies that are not covered by the Prisons Rules for grant of leave and how such scenarios are now being tackled.
5. Both sides will also apprise regarding the width and amplitude of the powers conferred in terms of Sec.389 of the Cr.P.C. and also, specifically, as to whether the grounds which are otherwise available in terms of the abovesaid provisions of the Prison's Act and the Rules framed thereunder can be the basis for grant of 'interim bail' by resort to Sec.389 of the Cr.P.C.
6. The learned Prosecutor will also make available the files in relation to the plea of the petitioner for grant of 'parole/leave' and also, the time frame within which the decision on the pending application can be taken, etc., and may also produce copy of the report of the 4th respondent-SHO in the matter.
W. P. (Crl.) No. 314/ 2023
..5..
7. The learned counsel appearing for the petitioner and the learned Prosecutor may give their respective written submissions in the matter.
8. Further, we are apprised that the Kerala Prisons & Correctional Services (Management) Rules, 2014, framed under the abovesaid 2010 Act, has been published only in Malayalam language. There are various provisions in the said Rules which have to be examined in depth. We are really handicapped in adjudicating this case in the absence of an authenticated English version of the abovesaid Rules. Hence, it is ordered, in the interest of justice, that, the Additional Chief Secretary to Government in the Home Department and the Law Secretary will ensure that authenticated English version of the abovesaid Rules are made available for the perusal of this Court. Steps will also be taken by the competent authority of the State Government in the Home Department and the Law Department to ensure that such authenticated version of the English translation of the abovesaid Rules are published without any further delay. This direction has W. P. (Crl.) No. 314/ 2023 ..6..
been issued keeping in view the legal principles already laid down by this Court in decisions as in Thanga Dorai v. Chancellor, Kerala University [1995 (2) KLT 663, para 21], Murali Purushothaman v. State of Kerala [2002 (1) KLT 698], etc. The Registrar General will forward a copy of this order to the Additional Chief Secretary to Government in the Home Department and the Law Secretary, for necessary information and immediate compliance.
9. Further, we would request Sri.Asok M.Cherian, learned Additional Advocate General to appear and assist this Court in this matter. The Registry will show the name of Sri.Asok M.Cherian, learned Additional Advocate General in the Cause List.
List the case before this Bench as "to be spoken to" on 24.5.2023.
Hand over to both sides.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
C. JAYACHANDRAN, JUDGE MMG 11-05-2023 /True Copy/ Assistant Registrar