Kerala High Court
Swathi Sibi vs State Of Kerala on 7 April, 2022
WP(Crl.) No.188/2022 1 / 19
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
Thursday, the 7th day of April 2022 / 17th Chaithra, 1944
WP(CRL.) NO. 188 OF 2022(S)
PETITIONER:
SWATHI SIBI, AGED 29 YEARS, W/O.SIBI, KAITHARATH HOUSE,
CHENGALUR DESOM, PUTHUKKADU PANCHAYATH, MUKUNDAPURAM TALUK,
THRISSUR DISTRICT-680 001.
RESPONDENTS:
1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL SERVICES,
JAIL HEADQUARTERS, POOJAPURA, THIRUVANANTHAPURAM-695 012.
3. SUPERINTENDENT, CENTRAL PRISON AND CORRECTIONAL HOME,
SHORANUR ROAD, VIYYUR, THRISSUR, KERALA-680 010.
ADDL. R4 IMPLEADED
4. THE STATE OF KERALA, REPRESENTED BY THE CHIEF
SECRETARY,THIRUVANANTHAPURAM.
IS IMPLEADED AS ADDL. R4 VIDE ORDER DATED 07/04/2022
IN WP(CRL).
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 3rd respondent to urgently
obtain instructions regarding grant of parole to the husband of the
petitioner (Sibi- Convict No.4044), who is undergoing incarceration at
Central Prison and Correctional Home, Viyyur, pending disposal of this
Writ Petition (Criminal).
This petition again coming on for admission upon perusing the
petition and the affidavit filed in support of WP(Crl.) and this
Court's order dated 03/03/2022 and upon hearing the arguments of M/S
P.M.RAFIQ, M.REVIKRISHNAN, AJEESH K.SASI, MITHA SUDHINDRAN, RAHUL
SUNIL, SRUTHY N. BHAT & SRUTHY K.K., Advocates for the petitioner and
of DIRECTOR GENERAL OF PROSECUTION, SRI.P. NARAYANAN, ADDL. PUBLIC
PROSECUTOR for R1, the court passed the following:
P.T.O.
WP(Crl.) No.188/2022 2 / 19
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
----------------------------------------------------------
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
----------------------------------------------------------
Dated this the 07th day of April, 2022
ORDER
Vinod Chandran, J.
In the above writ petitions, we are concerned with
the parole applications filed by two convicts, convicted in
S.C.No.507 of 2013 by the Court of the Additional Sessions
Judge-IV, Thrissur. In one, the application was rejected by
the Director General of Prisons and Correctional Services
(D.G) and in the other, in an appeal filed against the order of
rejection, reconsideration by the Advisory Committee was
directed. In both the cases, the District Probation Officer and
the Jail Superintendent recommended release on parole, the
latter having certified the conduct of the convicts as
satisfactory. The contention raised on behalf of both the
convicts is that there is no proper enquiry conducted by the
Police, before submitting a report and often the same words
WP(Crl.) No.188/2022 3 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
are employed. The learned counsel appearing in W.P.
(Crl.).No.188 of 2022 has a further contention that the
Advisory Committee is not regularly convened and a
reconsideration would not be carried out in the near future.
2. The learned counsel appearing in W.P.(Crl.) No.236
of 2022 specifically referred to Ext.P5, the reply given to a
query made under the RTI Act, by the Station House Officer,
Puthukkad Police Station, within whose jurisdiction, the crime
was committed and the convict was ordinarily residing. One
of the questions asked was with respect to his conduct prior
to the crime, which occurred on 23.02.2018. The question
was whether there was any threat or allegation of attacks or
bodily injury to the said person during the period prior to
which the crime was committed; the answer was in the
negative. A further question was with respect to the convicts
conduct, when he was released on interim bail between
28.07.2021 and 26.08.2021. The reply again is of no law and
order situation having been created by the convict during that
period. The convict in the other case also was granted
WP(Crl.) No.188/2022 4 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
interim bail, for a period of four weeks, during which, there is
no allegation of either a crime committed by him or against
him. In the above circumstances, we directed the learned
Senior Government Pleader to produce the files and also
required further clarification on the power conferred on the
various authorities with reference to grant or refusal of
parole.
3. The learned counsel appearing for the convicts in
both cases and the learned Government Pleader took us
through the various provisions. Rule 397, in Chapter 30 of
the Kerala Prisons and Correctional Services (Management)
Rules, provides for various leave, as entitled to the convicts.
That, both the convicts are entitled to be considered for
parole on the basis of the period already spent in prison is not
disputed. The Director General is conferred with the power
under Clause (f) of Rule 397 to grant the first leave applied
for and later the Superintendent himself is so conferred with
the authority, unless there has been any adverse report
regarding the conduct of the convict during the earlier period
WP(Crl.) No.188/2022 5 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
of leave. The consideration of the Director General is
regulated by clause (h) of Rule 397. It speaks of three reports,
first, from the Sub Inspector regarding the chance of any law
and order situation apprehended on the release of the
convict, any threat to his life or limb or the public at large,
the chances of his absconding and the conduct during any
earlier period of leave availed by him. Clause (h) also
requires the Jail Superintendent to report on the conduct of
the convict along with the details of the leave availed with a
recommendation. Further mandate is a report from the
District Probation Officer regarding the family and social
circumstances and the possibility of his acceptance in society
on his release from Prison. These are the three reports on
which the Director General has to make a recommendation.
Rule 398 provides for the constitution of a Parole Review
Committee, with the District Collector as the Chairman. The
Review Committee is empowered to consider the application
of leave by any convict, having completed three years of
punishment, if there are three adverse reports against him.
WP(Crl.) No.188/2022 6 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
An Advisory Committee, under Section 77(1) is constituted
under Rule 462 of Chapter 36; which is primarily for the
purpose of suo motu consideration of premature release of
well behaved, long term convicts. Sub-section (2) of Section
77 also empowers the Government to prescribe the powers
and duties of the Advisory Committee constituted under
sub-section (1). Rule 469 confers an additional power on the
Advisory Committee, by which, dehors the provisions of the
Rules, leave applications, with more than one adverse report
of the Police, can be considered for recommendation.
4. In the cases before us according to the learned
Counsel, the applications made were of the first of its kind
and they were considered by the Director General himself.
Ext.P4 in W.P.(Crl.) No.236 of 2022, refers to the favourable
recommendation dated 19.11.2019 of the District Probation
Officer and the repeated adverse reports from the Police on
various dates starting from 22.03.2020 to 07.10.2021. Ext.P4
is in fact a letter addressed to the applicant, the wife of the
convict, intimating that leave could be granted, only if either
WP(Crl.) No.188/2022 7 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
the Police report becomes favourable or the Advisory
Committee or the Parole Review Committee recommends
such leave. It cannot but be said that for the Review
Committee or the Advisory Committee to consider the issue,
there has to be a reference made by the Director General and
the issuance of a communication of this nature is a clear
indication of the lackadaisical approach and failure to
discharge the duties enjoined on the Director General under
the Rules. The power conferred on Review Committee and the
Advisory Committee is not to be invoked by the applicant and
is a mandate on the authorities as and when the adverse
reports against the convict are more than one.
5. As far as W.P.(Crl.)No.188 of 2022 is concerned,
Ext.P1 is the order of the Director General, which again
notices a favourable report from the District Probation Officer
and an adverse report from the Police. The intimation at
Ex.P1 to the wife of the convict is in the same lines as in the
other case. The wife, the petitioner herein, took up the matter
before this Court wherein, we, by Ext.P2 directed an appeal
WP(Crl.) No.188/2022 8 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
to be filed. An appeal was filed at Ext.P3, in which, the
learned counsel submits, an order has been passed on
15.03.2022, directing the Advisory Committee to reconsider
the issue based on the fresh Police report and the Probation
Officers report. It is the submission of the learned Counsel
that the Committees do not sit regularly and often only once
in an year.
6. The learned Senior Government Pleader has placed
before us, the registers of both the Advisory Committee and
the Parole Review Committee. We find that there is no
specific application of mind as discernible from the register
and the recital is a cryptic; 'recommended' or 'not
recommended'. In some cases, there is a statement made of
'good behaviour' for recommending the leave or the nature of
the crime described as 'heinous', for not recommending. We
are not sure whether there is a detailed order passed, for
which, we will have to peruse the relevant files. We are also
appalled by the submission made by the learned counsel that
the Advisory and Review Committees rarely sit and often sit
WP(Crl.) No.188/2022 9 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
only once in an year.
7. In the present cases, both the accused have been
convicted for life, for an incident in which, they along with
four others, committed the murder of another, outside a
liquor shop. The subject convicts on whose behalf the writ
petitions are filed are A4 and A2. A1 and A5, in the same
crime have been released on parole. We have seen the police
reports in the case of both the convicts, which speaks of a
possibility of the friends of the deceased, who are habitual
criminals putting the life and limb of the convicts, to danger.
However, the District Probation Officer as already noticed,
recommended the release in the case of both the convicts
after evaluating the social circumstances. The Sub
Inspector's response to the RTI query in W.P.(Crl.) No.236 of
2022 is also favourable to the convict.
8. We have also perused the files brought before us by
the learned Government Pleader. We have seen that A1
(Indrankutty @ Shabu) and A5 (Lalu @ Laljith) have been
granted parole, despite a report of threat to life existing from
WP(Crl.) No.188/2022 10 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
relatives and friends. Considering his family related matters,
the report of the District Police Chief with respect to A1 is
dated 19.07.2021 with No. 45/parole/DCRB/2021-R. The
report of the District Police Chief with respect to A5 (Lalu @
Laljith) bears No. 65/parole/DCRB/2021-R, dated 02.11.2021.
There, the reasoning was that the place of occurrence is
situated in Puthukkad Police Station limits and the accused
does not have any residence within the said Police Station
limits. We are told that both the convicts herein have their
residence within Puthukkad Police Station. We do not think
that the mere circumstance of the incident having occurred
within Puthukkad Police Station and the residence being in a
nearby or adjacent Police Station limit would in any manner
mitigate the threat, if at all, there is such a threat against the
convicts. We also have to notice that both these convicts
were released earlier and there is no adverse report against
them during the parole period.
9. The learned Government Pleader has showed us the
consideration made by the Advisory Committee and the
WP(Crl.) No.188/2022 11 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
Review Committee from the registers. The consideration of
the Advisory Committee was on 27.10.2020, long before the
application was made by both the convicts herein. As far as
the Review Committee is concerned, the same was on
19.05.2021, when the rejection of parole to both the convicts
were respectively on 01.12.2021 and 30.11.2021. We do not
see any Review Committee have been constituted for the last
four or five months, after the Director General had rejected
the above parole applications and directed the applicants to
wait for a decision from the Advisory Committee or the
Review Committee. In the overall circumstances, we are of
the opinion that the consideration was not proper. We would
think it appropriate to grant parole to both the convicts,
Roshan, S/o Lohithakshan, Convict No.4045 and Sibi, S/o
Paul, Convict No.4044, for a period of one month on the
following conditions:
(i) The petitioners shall be released on parole on
execution of bonds for Rs.50,000/- (Rupees fifty
thousand only), each with two solvent sureties,
WP(Crl.) No.188/2022 12 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
for the like amount to the satisfaction of the trial
court;
(ii) The petitioners shall report before the jurisdictional
Station House Officer twice in a week namely on
Monday and Friday at 10.00 a.m.
(iii) On the date on which one month expires, they shall
report before the Superintendent of the Central
Prison concerned at 10.00 a.m.
(iv) They shall not involve in any offence while on
parole;
(v) If the conviction and sentence of the
petitioners/appellants is upheld or even modified,
the time during which they are so released shall be
excluded in computing the term of their sentence
as provided in Section 389(4) Cr.P.C.
10. Normally, we would have closed the writ petitions
based on the order passed by us. But, we are of the opinion
that there is some confusion as to the powers conferred on
the Advisory Committee and the Review Committee, which
WP(Crl.) No.188/2022 13 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
are not hierarchically superior or lower as per the rules. We
also have very deep concern about the convening of the
committees, which are far apart in time. As we understand
from the Rules, the Review Committee and the Advisory
Committee have concurrent jurisdiction. The Review
Committee constituted under Chapter 30, which deals with
'leaves' is constituted under Rule 399 (1) for reviewing the
rejection of applications, for reason of adverse Police reports.
The consideration made as per the registers produced before
us is merely based on the reports. In the two convicts case,
which were considered long before the application was given,
we see the reports of the three authorities having been
referred to, ie., the Police, the District Probation Officer and
the Jail Superintendent. The District Probation Officer and
the Jail Superintendent respectively recommended and
certified the conduct to be satisfactory of both the convicts.
The refusal to recommend by the Police was noticed and the
Review Committee merely rejected the parole application. By
the power conferred under Rule 399 (1), the Review
WP(Crl.) No.188/2022 14 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
Committee is enabled to consider applications, where there is
a rejection made by reason only of an adverse Police report.
The adverse Police report, hence, does not tie the hands of
the Review Committee and we are of the opinion that there
should be a speaking order, reflecting the consideration made
of all the mitigating factors.
11. In this context, we also notice Sub-Rule (2) of Rule
399, which comes into play, in cases where the convict
applying for parole has already served three years and, in
whose case, all the three reports are adverse. The power
hence, conferred on the Review Committee is to review such
cases in which all the three reports are adverse and to look at
the mitigating factors as also other aspects in favour of the
accused, which could enable release on parole.
12. The Advisory Committee also, as per the
register, has merely extracted the recommendations in the
three reports and rejected the application, for reason of the
adverse report. As far as the Advisory Committee is
WP(Crl.) No.188/2022 15 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
concerned, Rule 469 confers power on the committee in every
case where there are more than one adverse Police report.
Again, then the Advisory Committee is not bound by the
adverse Police report, and as in the case of the Review
Committee, there should be a speaking order.
13. We have also expressed our deep concern insofar as
the Committees being not convened with regular periodicity.
As we noticed, both the orders of the Director General,
directs the applicant to wait for an order from either of the
Committees. No Advisory Committee has been convened
after 30.11.2021. In fact, when there are two committees
constituted to consider the applications of parole in the event
of adverse Police reports, it is incumbent on the authority
rejecting such applications to place it before either of the
Committees, which also have to be considered in a time
bound manner. We are not for a moment expecting the
Committee to be convened immediately on such rejection; but
at least in three months, the Committees should be convened
and the pending applications where rejections have been
WP(Crl.) No.188/2022 16 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
made by the original authority has to be taken up and
considered, wherein the consideration ought not to be bound
by the adverse Police report, which would go against the very
spirit of the rules formulated and the powers conferred.
14. In this context, we are also prima facie disturbed by
the fact that a District and Sessions Judge is treated
subordinate to the Director General by constitution of a
Advisory Committee with the Director General as the
Chairman and the District Judge as a member. Even for the
purposes of pay-scales, as per the decision of the Honourable
Supreme Court in All India Judges' Association v. Union
of India 2002 (4) SCC 247, it was recommended that the
District Judge at the entry level should be properly equated
with a super time scale IAS Officer. We also notice the
observation in the judgment that such equation is only to
avoid distortion in the pay-scale of the judicial officers
vis-a-vis the executive, despite earlier judgments having
clearly said that there should be no equation or parity
between the judicial service and the executive service.
WP(Crl.) No.188/2022 17 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
15. In such circumstance, we would also call upon the
Government to address us on the propriety of having placed
the District Judge as a member in a Committee, chaired by
the Director General of Prisons. We also notice that the D.G.
is the original authority, at least in the first applications for
leave and it is not proper for him to chair a Committee which
has the power, in a way, to sit on appeal or review of the
original orders. For completion, we implead the State of
Kerala represented by the Chief Secretary as the additional
respondent in both the writ petitions. The Chief Secretary
shall file an affidavit on the various apprehensions expressed
by us regarding the implementation of the rules and the
anomaly found above in constitution of the Advisory
Committee. The Director General shall place before us an
affidavit along with the connected files of the Advisory
Committee and the Review Committee, at least relating to the
two convicts referred to in the above writ petitions, for us to
ascertain whether there has been any consideration with
proper application of mind than that found in the two
WP(Crl.) No.188/2022 18 / 19
W.P.(Crl.)Nos. 236 of 2022 & 188 of 2022
registers placed before us. The Director General shall also
appraise us clearly of the periodicity with which the Advisory
Committee and the Review Committee were convened in the
past five years with specific dates shown of the date of
convening of such meetings. The affidavit shall be placed
before us within six weeks. The Chief Secretary shall also
produce the protocol list of the State; of the legislators, the
executive and the judiciary.
Post immediately after vacation.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
C.JAYACHANDRAN
JUDGE
NR/07/04/2022
07-04-2022 /True Copy/ Assistant Registrar
WP(Crl.) No.188/2022 19 / 19
APPENDIX OF WP(CRL.) 188/2022
Exhibit P1 PHOTOCOPY OF THE REPLY ISSUED BY THE 2ND RESPONDENT, ON
30.11.2021.
Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 13.01.2022 IN
WP(CRL.)NO.9 OF 2022 OF THIS HON'BLE COURT.
Exhibit P3 COPY OF THE APPEAL DATED 28.01.2022 SENT TO THE
SECRETARY OF THE DEPARTMENT OF HOME GOVERNMENT.
