Mehmood vs The Secretary,Home Department Of ...
2021 Latest Caselaw 23821 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                  THE HONOURABLE MR. JUSTICE K.HARIPAL
  SATURDAY, THE 4TH DAY OF DECEMBER 2021 / 13TH AGRAHAYANA, 1943
                        WP(CRL.) NO. 294 OF 2021
PETITIONER/S:

          MEHMOOD
          AGED 60 YEARS,S/O.ABOOTTY, MADEENA MAHAL (H), ANIYARAM,
          CHOCKLI, TALASSERY, KANNUR, KERALA
          BY ADVS.P.MOHAMED SABAH
          LIBIN STANLEY
          SAIPOOJA
          R.GAYATHRI
          SADIK ISMAYIL
          M.MAHIN HAMZA

RESPONDENTS:

    1     THE SECRETARY,HOME DEPARTMENT OF KERALA
          SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001
    2     THE DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL
          SERVICES,PRISONS HEADQUARTES, POOJAPPURA,
          THIRUVANANTHAPURAM PIN 695 012
    3     THE SUPERINTENDENT
          CENTRAL PRISON, VIYYUR, THRISSUR, PIN 680 010




          SR.PP - SRI. HRITHWIK C.S.



     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
02.12.2021, THE COURT ON 04.12.2021 DELIVERED THE FOLLOWING:
 W.P.(Crl.)294/2021                        2


                                      JUDGMENT

This is a writ petition filed under Article 226 of the Constitution

of India seeking to issue a writ of mandamus or any other appropriate

writ, direction or order to respondent No.3, the Superintendent,

Central Prison, Viyyur to comply with Ext.P1 order allowing the

petitioner's son to make phone calls to his wife employed abroad or

pass a writ of mandamus or any other appropriate writ directing

respondent No.3 to permit the petitioner's son to call his wife, Mariam

in her ISD phone number 00974-66151756 at least twice in a month,

in the interest of justice.

2. Petitioner's son is a convicted prisoner now undergoing

sentence in Central Prison, Viyyur from 2019 onwards. Earlier, from

2016 onwards he was an undertiral prisoner in the high security

prison, Viyyur; during that period he approached the trial court, the

NIA Court, Ernakulam, enabling him to make telephone calls to his

wife who is a native of Philippines, employed in Qatar. By Ext.P1

order he was allowed to make telephone calls once in a month for 15

minutes, but after the conviction and transferring him to the Central

Prison Viyyur, the 3rd respondent is not permitting to contact his wife

at Qatar. This causes much hardship to the son of the petitioner.

According to the learned counsel, it is the undeniable legal right of his

son to contact his wife and to seek about her well-being and hence the

writ petition.

3. The 3rd respondent filed a statement contending that Ext.P1

was passed during the period he was undergoing trial before the NIA

Court. Now he stands convicted by the Special Court for trial of NIA

Cases for the offences under Sections 18, 17, 18(b), 38, 39 and 40 of

the UA(P) Act for a period of fourteen years; the sentences under

different counts have to run concurrently and he has completed five

years and more in sentence including set off for 1150 days. According

to the 3rd respondent, the Ext.P1 order is not applicable to him.

However, the prisoners in Central Prison could make whatsapp calls to

a native of Philippines now employed in Qatar and the son of the

petitioner has availed such opportunity. Referring to Anneaxure-R3(a)

he said that on 01.01.2021, 24.02.2021, 04.06.2021 and 26.06.2021 he

had made such whatsapp calls, details of which are evident from

Annexure-R3(a). Moreover, according to the 3rd respondent, as per

circular No. 69, Annexure-R3(b) dt. 11.08.2020 and circular No.7 of

2021 dt. 13.01.2021 of the Director General of Prisons and

Correctional Services, prisoners can make video calls with their

relatives within an outside India by using the software E-prison

suite-F (E-Mulakat), a security software developed by National

Informatics Centre, Government of India, New Delhi, which has been

recognised by the Ministry of Home Affairs, Government of India.

The petitioner's son can avail this opportunity and can communicate

with his wife abroad with this facility. Even though the jail authorities

have given this opportunity to all other prisoners, the partitioner's son

Manseed has not availed the opportunity.

4. It is also stated that even though the son of the petitioner

had claimed that the said Mariam is his wife, there is no evidence for

the same and therefore the 3rd respondent submits that he may be

directed to produce evidence of their marriage.

5. I heard the learned counsel on both sides.

6. The learned counsel for the petitioner submits that during

the period when he was an undertrial prisoner, there was no problem

at all and by Ext.P1 he was permitted to make regular ISD calls and

now only such objections are being raised. But, according to the

learned Senior Public Prosecutor, his wife is a foreigner. The

petitioner's son is a convicted prisoner. Therefore, it is difficult to

allow him to make ISD calls. Instead he can make use of the

E-Mulakat facility and can make video calls. According to the learned

Senior Public Prosecutor, allowing to make ISD calls may create

security hazards.

7. It is true that by Ext.P1 order the trial court had permitted

him to make ISD calls. But now facilities are available to the

prisoners for making video calls, which is more advantageous. I do

not understand why the son of the petitioner is hesitant to use this

facility or make video calls through the platform made available by

the jail authorities in collaboration with the National Informatics

Centre. Therefore, there is no reason why he should insist for making

ISD calls alone and not video calls through the platform made

available to him.

8. Even though it was submitted that the petitioner has not

produced proof of marriage, Annexure-R3(a) indicates that he had

been making regular calls to the said Mariam in the given telephone

number and stated that she is his wife. It was also submitted during

argument that earlier the son of the petitioner was working at Qatar

and at that time he met the said Mariam who is a native of Philippines

and they fell in love and entered into a contract of marriage at Qatar.

Whatever it may be, even the petitioner, the father, accepts the said

Mariam as his daughter-in-law and therefore the 3rd respondent need

not insist any proof of marriage for allowing him to make calls.

9. The present facility of allowing him to make video calls

through the E-Mulakat can be made use of by the son of the petitioner

and since such advanced technology for making video calls is

available, there is no point in insisting that he would make only ISD

calls. Therefore, the Writ Petition is disposed of directing the 3 rd

respondent to facilitate the son of the petitioner to make video calls

through E-Mulakat service for which his son will have to make

registration and other procedural formalities. No doubt, the expenses

of such video calls shall be met by the son of the petitioner and if he

comes forward for making use of the said facility, he shall be allowed

to make calls at least twice in a month.

The Writ Petition is disposed of as above.

Sd/-

K.HARIPAL JUDGE okb/3.12 //True copy// P.S. to Judge

APPENDIX OF WP(CRL.) 294/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER DATED 11.8.2017 IN CRL.M.P.NO.107/2017 PASSED BY THE HONOURABLE SPECIAL COURT FOR TRIAL OF NIA CASES, ERNAKULAM