Kerala High Court
Najeeba vs The Secretary on 3 January, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 3RD DAY OF JANUARY 2024 / 13TH POUSHA, 1945
WP(CRL.) NO. 1221 OF 2023
PETITIONER:
NAJEEBA
AGED 32 YEARS
W/O ANSAR AHAMMED,
KANAKKENCHERI HOUSE, THRIKKADEERI P.O,
PALAKKAD DISTRICT, PIN - 679501
BY ADVS.
P.MOHAMED SABAH
LIBIN STANLEY
SAIPOOJA
SADIK ISMAYIL
R.GAYATHRI
M.MAHIN HAMZA
ALWIN JOSEPH
BABU U.M.
RESPONDENTS:
1 THE SECRETARY
HOME DEPARTMENT, STATE OF KERALA,
SECRETARIAT, THIRUVANATHAPURAM, PIN - 695001
2 DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL SERVICES
PRISONS HEADQUARTERS, POOJAPPURA,
THIRUVANANTHAPURAM, PIN - 695012
3 THE SUPERINTENDENT
CENTRAL PRISON, THAVANOOR,
MALAPPURAM DISTRICT, PIN - 679573
4 THE STATION HOUSE OFFICER
CHERUPLASSERY POLICE STATION,
PALAKKAD DISTRICT,, PIN - 679503
5 THE DISTRICT POLICE CHIEF
PALAKKAD, NEAR KSRTC BUS STAND,
PALAKKAD, KERALA, PIN - 678014
6 THE DISTRICT PROBATION OFFICER
PALAKKAD, CIVIL STATION,
PALAKKAD DISTRICT, PIN - 678001
BY ADV.
C.S HRITHWIK,
PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(Crl.).No.1221 of 2023
-:3:-
BECHU KURIAN THOMAS, J.
---------------------------------------
W.P.(Crl.).No.1221 of 2023
---------------------------------------
Dated this the 3rd day of January, 2024
JUDGMENT
Petitioner is the wife of one Ansar Ahammed, who is convict
No.53/2022 at Central Prison, Thavanoor. He was accused No.3 in
S.C.No.630/2020 on the files of the Additional Sessions Court,
Ottappalam, for the offences including Sections 307 and 302 of the
Indian Penal Code, 1860.
2. The Trial Court, by judgment dated 18.01.2022, found the
petitioner's husband guilty and sentenced him to imprisonment for
life. It is alleged that he was arrested on 24.06.2020 and was released
on bail on 17.02.2021, and thereafter has been undergoing conviction
since 18.01.2022. Though he was eligible for grant of ordinary leave,
his application dated 05.10.2023 was rejected by Ext.P4 order dated
20.11.2023, relying upon the police report. In the report of the police
it was stated that there may be a threat to law and order if petitioner's
husband is released, since, the opposition group may target him for
revenge and therefore, he ought not to be released on ordinary leave.
3. Smt. Saipooja, the learned Counsel for the petitioner
contended that the report of the District Probation Officer though
recorded in Ext.P4 was not effectively considered by the 2 nd
respondent while issuing Ext.P4. It is also stated that the possibility of
revenge by the opposition is only an apprehension without any basis
and no material has been mentioned in the police report to assume
that there would be a threat to the convict if released on ordinary
parole. The learned counsel further asserted that the right to be
considered for ordinary prole is available to all convicts and the same
cannot be defeated by assumptions or surmises, especially, in the light
of the probation officer's report.
4. Sri. C.S.Hrithwik, the learned Public Prosecutor on the other
hand contended that while issuing Ext.4 order all the aspects have
been considered and there is no perversity in the same. It is also
pointed out that the convict can move a fresh application for ordinary
parole and the same can be considered in accordance with law.
5. On a perusal of Ext.P4, it is noticed that though the District
Probation Officer's report has been referred to, no serious
consideration to the observations by the said officer has been carried
out. The convict was on bail from 17.02.2021 till 18.01.2022, during
which period there was not even a single incident of any attack or
revenge by the alleged opponents. Therefore, it is evident that the
probation officer's report was not given due weightage and instead
police report which is based practically on an assumption that there
may be a chance of a law and order situation if the opposition group
takes revenge on the convict is given more importance. The said
report of the police is based on a lot of 'if's and 'but's. Legally such
assumptions based on surmises cannot take the place of legally
tenable reasons to deny an ordinary parole to a convict who has
already become eligible to be released for ordinary parole by
continuing incarceration for the period specified therein.
6. In view of the above, this Court is satisfied that, Ext.P4 is
based on irrelevant considerations and since relevant factors have not
been considered, the said order is required to be set aside.
7. Accordingly, I set aside Ext.P4 and direct the 2 nd respondent
to reconsider the application for grant of ordinary parole in the light of
the observations made above.
Writ petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
Jka/03.01.24.
APPENDIX OF WP(CRL.) 1221/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE JUDGMENT DATED
18.01.2022 IN SC NO. 630/2020 PASSED BY
THE ADDITIONAL SESSIONS COURT,
OTTAPPALAM.
Exhibit P2 TRUE COPY OF THE JUDGMENT DATED
03.03.2023 IN WP (CRL) NO.1238/2022
PASSED BY THIS HON'BLE COURT.
Exhibit P3 TRUE COPY OF THE ORDER DATED 25.10.2023
IN WP(CRL).1024/2023 PASSED BY THIS
HON'BLE COURT.
Exhibit P4 TRUE COPY OF THE ORDER PASSED BY THE
RESPONDENT NO.2 DATED 20.11.2023
Exhibit P5 TRUE COPY OF THE CERTIFICATE DATED
16.11.2023 ISSUED FROM EMS HOSPITAL
PERINTHALMANNA.
Exhibit P6 TRUE COPY OF THE ORDER DATED 05.01.2023
IN CRL.M.C.NO.9111/2022.
Exhibit P7 TRUE COPY OF THE MEDICAL CERTIFICATE
DATED 1.12.2023 ISSUED BY CIVIL SURGEON
GOVT. W & C HOSPITAL PALAKKAD.
Exhibit P8 TRUE COPY OF THE ORDER DATED 1.12.2023
PASSED BY THE RESPONDENT NO.3.
Exhibit P9 TRUE COPY OF THE ORDER DATED 18.12.2023
PASSED BY THE RESPONDENT NO.3.
