Kerala High Court
Sumayya vs State Of Kerala on 29 April, 2025
2025:KER:33354
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 29TH DAY OF APRIL 2025 / 9TH VAISAKHA, 1947
WP(CRL.) NO. 530 OF 2025
PETITIONER:
SUMAYYA, AGED 37 YEARS, W/O SALEEM,
PALAYAKKODAN HOUISE, KALLAMKUZHI,
THRIKKALOOR P.O, POTTASSERY-II,
PALAKKAD DISTRICT, PIN - 678593
BY ADVS.
P.MOHAMED SABAH
LIBIN STANLEY
SAIPOOJA
SADIK ISMAYIL
R.GAYATHRI
M.MAHIN HAMZA
ALWIN JOSEPH
BENSON AMBROSE
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY, HOME
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,
THIRUVANANTHAPURAM DISTRICT, PIN - 695001
2 DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL
SERVICES PRISONS HEADQUARTERS, POOJAPPURA,
THIRUVANANTHAPURAM, PIN - 695012
3 THE SUPERINTENDENT, CENTRAL PRISON AND
CORRECTIONAL HOME, KANNUR, PALLIKKUNNU P.O,
KANNUR DISTRICT, PIN - 670004
4 THE STATION HOUSE OFFICER, MANNARKKAD POLICE
STATION, PALAKKAD DISTRICT, PIN - 678582
ADV M P PRASANTH PP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 29.04.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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2
JUDGMENT
The present Writ Petition is preferred by the wife of one
Saleem, who is accused No.19 in Sessions Case No.127/2016 on
the files of the Additional Sessions Court-IV, Palakkad.
2. On completion of trial, the accused was sentenced to
life imprisonment. The wife of the accused has approached this
Court seeking emergency leave/parole for 7 days as specified under
Rule 400 of the Kerala Prisons and Correctional Services
(Management) Rules, 2014 (hereinafter referred to as 'the Rules'
for short), on the ground that the marriage of his niece is
scheduled to be solemnized on 01.05.2025.
3. Heard Smt.Saipooja - learned counsel for the petitioner
and Sri.M.P.Prasanth - learned Public Prosecutor appearing for the
State.
4. Smt.Saipooja - learned counsel for the petitioner,
submits that though the application was made well in advance, the
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authorities have neither rejected nor granted the plea which has
caused serious prejudice to the petitioner's husband who is the
convict.
5. The learned Public Prosecutor on instructions submitted
that as and when an application seeking extraordinary leave is
received under Rule 400 of the 'Rules', the authorities are
expected to process it only after the receipt of requisite reports
from various authorities. In the present case, the reports are
awaited and the 3rd respondent has neither rejected nor accepted
the application because of want of requisite reports.
6. The above stated being the facts, it is indisputable that
the niece of the convict is getting married on 01.05.2025 and that
as per Rule 400 of the 'Rules', the convict is entitled for
extraordinary leave to attend the marriage of his close relative. In
these circumstances, it will be totally inconsiderate on the part of
the 3rd respondent to take a stand that the grant of leave can be
considered only after the receipt of the reports.
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7. From the facts disclosed, it is beyond dispute that
marriage of the niece of the convict is fixed on 01.05.2025 and
that the said fact qualifies as one of the eligible conditions for
grant of 'extraordinary leave'. Be that as it may, the further
question would be in the absence of any exercise done by the
authorities, can this court issue a writ of mandamus directing the
prison authorities to grant the 'extraordinary leave' under Rule
400 of the 'Rules'.
8. The extraordinary power of this under Article 226 needs
no elaboration. Normally, while exercising the power of judicial
review in the matters falling within the realm of Administrative
Law, this court would normally issue only a writ of mandamus
directing the authorities to consider the claim in accordance with
law. However, in the facts of this case, it is evident from the
submissions of the learned Public Prosecutor that the application is
yet to be considered for want of reports from the concerned
authorities. Therefore, the delay, if any, caused on the side of the
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authorities cannot operate to the detriment of the convict so as to
deny him the benefit of the Rules.
9. In this context, it is worthwhile to note that a Single
Bench of this Court in Noushad Vs State of Kerala [2023(3) KLT
24] has held that in circumstances where the rights of citizens
including that of the convict has been violated, the extraordinary
power can be exercised. Since the learned Public Prosecutor does
not deny the fact that an application for extraordinary leave
though received could not be processed for receipt of reports in
time, this court feels that non receipt of report cannot be a
ground to deny the statutory right of the petitioner.
10. In such circumstances, this court is satisfied that an
extraordinary situation exists for the exercise of power of this
court in order to grant relief to the petitioner and her husband
who is the convict. Therefore, this court is of the considered view
that convict No.286/2022 - Sri.Saleem can be granted leave for a
period of two days from 30.04.2025, excluding the day of travel,
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on condition that he executes a bond, accompanied by two solvent
sureties, for a sum of Rs.1,00,000/- each. He shall duly comply
with the conditions and return back on 02.05.2025 at 11 A.M.,
failing which, consequences shall follow.
This Writ Petition is ordered accordingly.
Sd/-
EASWARAN S.
JUDGE
RR
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APPENDIX OF WP(CRL.) 530/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE MARRIAGE INVITATION CARD
Exhibit P2 TRUE COPY OF THE JUDGMENT DATED
05.01.2023 IN CRL.M.C. NO.9111/2022 OF
THIS HON'BLE COURT
Exhibit P3 TRUE COPY OF THE JUDGMENT DATED
24.01.2024 IN W.P. (CRL) NO. 58/2024
PASSED BY THIS HONOURABLE COURT
Exhibit P4 TRUE COPY OF THE JUDGMENT DATED
29.11.2024 IN W.P. (CRL) NO. 1062/2024
PASSED BY THIS HONOURABLE COURT
