Kerala High Court
Sandhya vs The Secretary on 11 May, 2023
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
=====================================
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
