Kerala High Court
Shyamala.M.K vs State Of Kerala on 6 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
Friday, the 6th day of January 2023 / 16th Pousha, 1944
WP(C) NO. 15495 OF 2021(J)
PETITIONERS:
1. SHYAMALA.M.K., AGED 69 YEARS, W/O.LATE P.K.SASI, MEVAKKADU HOUSE,
MUZHOOR P.O., MANJAMATTOM, KOTTAYAM.
AND ANOTHER
RESPONDENTS:
1. STATE OF KERALA TO BE REPRESENTED BY SECRETARY, HOME DEPARTMENT,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN-695 001.
AND 3 OTHERS
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct the respondents to allow the 2nd petitioner to remain on
parole pending final decision in the writ petition.
This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this courts' order dated
06.12.2022 and upon hearing the arguments of M/S.K.S.MADHUSOODANAN,
M.M.VINOD KUMAR, P.K.RAKESH KUMAR, K.S.MIZVER & M.J.KIRAN KUMAR, Advocates
for the petitioners, the court passed the following:-
P.T.O.
W.P.C.15495/21
1
ZIYAD RAHMAN A.A., J.
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W.P.(C).No.15495 of 2021
-----------------------------------------
Dated this the 6th day of Januaryv, 2023
ORDER
The 2nd petitioner in this writ petition is a convict and an
inmate of Central Prison and Correctional Home,
Thiruvananthapuram. The 1st petitioner is his mother. The
petitioner was found guilty of the offences punishable under
Sections 302, 201, 120(B) and 364 IPC, as per the judgment
passed by the Sessions Court, Kottayam, in S.C.No.145 of 2005.
The said judgment is confirmed by this Court in Crl.A.No.193 of
2006 on 10.12.2009.
2. The 2nd petitioner has been under detention since
24.02.2005 and as of now, he completed 18 years, five months and
five days as on 10.09.2022. It is pointed out that including
remission, the period of imprisonment comes to more than 27
years. The prayer sought in this writ petition inter alia is to issue
a direction to the respondents to release the 2 nd petitioner by
W.P.C.15495/21
commuting the sentence either under Article 161 of the
Constitution of India or under Sections 432 or 433 Cr.P.C.
3. During the pendency of this writ petition, the prayer of
the petitioner was considered by the Jail Advisory Board and the
same resulted in rejection. In the meantime, State Level Advisory
Committee was constituted by the Government to consider the
premature release of the convicts and to make recommendations
to the Government in this regard. The case of the petitioner was
accordingly placed before the said committee, and as per the
decision taken on 26.09.2022, the State-Level Advisory Committee
recommended the premature release of the petitioner.
Consequently, the matter was placed before the Government for
taking a decision in the matter. Accordingly, this Court, on
20.10.2022 passed an order directing the Government to take an
appropriate decision based on the recommendations made by the
State Level Advisory Board within a period of six weeks from the
date of the said order.
4. Subsequently, as there was no proper compliance with
the said order, a further order was passed by this Court on
W.P.C.15495/21
06.12.2022, wherein this Court directed the Secretary to the
Home Department to file an affidavit explaining the steps taken in
compliance of the order passed by this Court on 20.10.2022.
Today, when the matter came up for consideration, instead of filing
the affidavit, a memo has been filed on behalf of the Government
along with a Government Order, G.O.(Ms)No.267/2022/HOME
dated 24.12.2022 by which the recommendations made by the
State Level Advisory Committee was rejected and thereby the
prayer sought for by the petitioner was rejected.
5. I have gone through the contents of the said order and
the arguments raised from either side. The learned counsel for
the petitioner points out that absolutely no reasons are mentioned
in the said order, which supports the decision they have taken to
reject the petitioner's application. It is discernible from the
aforesaid order that, the District Probation Officer has reported
that the family members of the convict are interested in his
release and his mother is willing to stand as surety for his good
conduct. The people in the locality also favoured his premature
release. The petitioner had already released on paroles several
W.P.C.15495/21
times, and there was neither any problem created by the
petitioner to anyone nor there were any threats to his life. It is
also pointed out that the petitioner is undergoing treatment for
Cancer at RCC, Thiruvananthapuram. The District Probation
Officer also recommended his premature release by taking note of
all these aspects. The Superintendent of Central Prison also
reported that his conduct inside the prison has been satisfactory
so far. The only adverse report against the petitioner is the one
made by the District Police Chief, Kottayam, wherein it is
mentioned that the petitioner was involved in a heinous crime. It
is also reported that there might be chances of counterattacks
from the relatives of the victim and the grant of premature release
may convey a wrong message to society, and hence he did not
recommend the release.
6. The decision taken by the Government is conveyed in
paragraph No.8 of the said order, which does not contain any
reasons despite the fact that there were several reports in favour
of the release of the petitioner, namely, (1) report of the District
Probation Officer, (2) report of the Superintendent of the Central
W.P.C.15495/21
Prison, and (3) the recommendation made by the State Level
Committee. The learned Government Pleader points out that the
State Level Committee consists of a retired Judge of the High
Court, Additional Chief Secretary to Home Department, Secretary
to Social Welfare Department and a non-official member. Thus, it
is to be noted that, despite the fact that all the authorities
concerned had consistently recommended for release of the
petitioner, the same happened to be rejected without specifying
any reason. Even going by the order, the only adverse report
stated to have been issued is by the District Police Chief,
Kottayam, which is referred to in the order as Ref No 3. It is
discernible that the said report is dated 14.08.2020, and much
water had flown after the said report. Subsequent
recommendations/ reports were submitted favouring the release
of the petitioner, practically overruling the findings in the report of
the Police Chief, yet, there is no consideration of them, which is
very conspicuous. Therefore, apparently, the decision taken by the
Government was without any application of mind, and I have all
the reason to assume that the same was passed hastily, only to
W.P.C.15495/21
impress this court somehow that the order of this Court is
complied with. The circumstances under which the order of
rejection of the prayer of the petitioners was passed reflects an
attitude of vengeance on the part of the decision-makers, which
ought to have been avoided. The crucial aspect is that the
petitioner had already completed actual imprisonment of 18 years,
five months and four days as on 18.09.2022 and completed the
period of 27 years, including the remission, which fact is not seen
taken into consideration. More importantly, the medical grounds
that the petitioner is undergoing treatment for Cancer are also not
taken into consideration. Therefore, in my view, the order passed
by the Government on 24.12.2022 is not a proper one; hence,
under no circumstances can the same be treated as an order in
proper compliance with the direction issued by this Court vide
order dated 20.10.2022. When this court passes an order directing
the 1st respondent to take a decision, they are under an obligation
to pass an order implementing the same in letter and spirit,
However, in this case, what they have done is to simply reject the
recommendation made by the State Level Committee, by
W.P.C.15495/21
simply ignoring the several reports stand in favour of the 2 nd
petitioner. Such an unfair stand cannot be sustained and
permitted.
7. In such circumstances, the 1 st respondent is directed to
re-consider the case of the petitioner and take a decision by
issuing a speaking order specifically adverting to the contents of
reports/minutes referred to in G.O(Ms).No..267/2022/HOME dated
24.12.2022, as Ref: Nos 4,5,6 and also the report of the
Superintendent of Central prison, referred to in para 4 of the said
G.O. The 1st respondent should pass such an order within a period
of one month from the date of production of a copy of this order,
untrammeled by the discussions made in G.O(Ms).No.
267/2022/HOME dated 24.12.2022. The report of compliance
shall be submitted before this Court within 45 days from today.
Post on 21.02.2023.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
DG/7.1.23
06-01-2023 /True Copy/ Assistant Registrar
