Kerala High Court
Bindhu K.P vs State Of Kerala on 6 August, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
W.P.(Crl.).No.978 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 6TH DAY OF AUGUST 2025 / 15TH SRAVANA, 1947
WP(CRL.) NO. 978 OF 2025
PETITIONER(S):
BINDHU K.P
AGED 42 YEARS
THARASHIYIL (H), POYILOOR P.O, KANNUR,
PIN - 670693
BY ADVS.
SHRI.JERRY MATHEW
SMT.DEVIKA K.R.
RESPONDENT(S):
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, MINISTRY OF HOME
DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695001
2 THE DIRECTOR GENERAL OF PRISONS
JAIL HEADQUARTERS, POOJAPURA,
THIRUVANANTHAPURAM, PIN - 695012
3 THE SUPERINTENDENT
CENTRAL PRISON & CORRECTIONAL HOME, VIYYUR,
THRISSUR, PIN - 680010
BY ADV. SR PP, SMT. SEETHA S
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 06.08.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(Crl.).No.978 of 2025
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P.V.KUNHIKRISHNAN, J
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W.P.(Crl.) No.978 of 2025
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Dated this the 06th day of August, 2025
JUDGMENT
The prison walls are not just physical barriers, but also
symbol of the suspension of certain fundamental rights that
citizens enjoy. A strange request is made by a convict
undergoing Life imprisonment in a murder case. He wants
emergency leave to give 'pregnancy care' to his wife.
Emergency parole, as per the Kerala Prisons & Correctional
Services (Management) Rules, 2014 (hereinafter referred to
as the "Rules 2014"), is to be granted only on rare
occasions, and that too for the reason mentioned in Rule
400(1) of the Rules 2014. Of course, a prisoner is entitled to
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ordinary parole as per Rule 397 of the Rules 2014. However,
nowadays, convicts are coming before this Court for
emergency leave in connection with the 28th day naming
ceremony of the child, the first rice feeding ceremony of the
child, family functions, and other similar events. If this trend
continues, convicts will soon come to this court to
participate in local temple festivals, church festivals, family
trips, or to visit places like Sabarimala and Guruvayoor. Most
of the fundamental rights of the convicts are suspended
when they are convicted and sent to jail. The same cannot
be diluted by granting emergency leave to convicts regularly
unless there are extraordinary situations. Every convict
should know that the victim and their relatives are staring at
them when they are in prison, and that staring is necessary
and should be an eye-opener for their reformation.
2. Petitioner's husband was convicted by the court
below in a murder case, and he was sentenced to undergo
life imprisonment as per the judgment in S.C. No.435/2000
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on the file of the Additional District and Sessions Judge
(Adhoc - I), Thalassery. The petitioner married the convict
in 2010. There were no children in their wedlock. It is the
case of the petitioner that she and her husband were trying
to conceive for several years and have undergone
treatments across various branches of medicine, but their
efforts were unsuccessful. It is submitted that the petitioner
started treatment under Allopathy when the petitioner's
husband was released on ordinary leave last month. The
petitioner and her husband are under treatment at Nahas
Centre for Assisted Reproduction & Endoscopy, Kannur and
underwent an IVF/ICSI procedure. It is the case of the
petitioner that the IVF procedure has turned fruitful, and the
petitioner is now two months pregnant. Ext.P1 is the
certificate showing the same. According to the petitioner,
she is extremely distressed as there is no one else to look
after her. Therefore, she needs the presence of her husband.
It is the case of the petitioner that she conceived at the age
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of 42 years, and considering her age and the fact that the
pregnancy is the result of IVF treatment, there exists a high
risk of miscarriage if proper support and care are not given.
Therefore, the petitioner submitted a representation to the
3rd respondent requesting emergency parole for the
petitioner's husband. The same is rejected as per Ext.P2.
Aggrieved by the same, this Writ Petition (Crl.) is filed.
3. Heard the learned counsel appearing for the
petitioner and the learned Public Prosecutor.
4. This Court perused Ext.P2 order. The 3rd
respondent rejected the representation submitted by the
victim, showing sufficient reason and observed that
emergency leave cannot be granted to the petitioner's
husband based on the provisions of Rule 2014. Rule 400(1)
of Rule 2014 is extracted hereunder:
"400. അടടിയനടിരരാവധടി-
(1) ദദേശശീയ സുരക്ഷയുമരായടി ബന്ധപപ്പെട കുറ്റകൃതത്യങ്ങളടിൽ
ശടിക്ഷടിക്ക പപ്പെടവർ ഒഴടിപകെയുള ഏപതരാരു സൽസസരാഭവടികെളരായ
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തടവുകെരാർകക തരാപഴ വത്യക്തമരാക്കടിയടിട്ടുള വളപര അടടിയനടിര
ഘടങ്ങളടിൽ അടടിയനടിരരാവധടിയയ അർഹതയുണരായടിരടികക.
തരാപഴ പറയുന്ന വത്യവസ്ഥകെൾക്കയ വടിദധയമരായടി അടടിയനടിരരാവധടി
അനുവദേടിദക്കണതരാണയ. അതരായതയ:
(i) പടിതരാവയ, മരാതരാവയ, മകെൻ, മകെൾ, ഭരാരത്യ, ഭർതരാവയ,
സദഹരാദേരൻ, സദഹരാദേരടി, അർദ്ധ സദഹരാദേരൻ, അർദ്ധ
സദഹരാദേരടി, പപൗത്രൻ, പപൗത്രടി, പടിതരാ/മരാതരാ മഹൻ, പടിതരാ/മരാതരാ
മഹടി, ഭരാരത്യരാ പടിതരാവയ/മരാതരാവയ, ഭർതത്യ പടിതരാവയ/മരാതരാവയ, മരുമകെൻ,
മരുമകെൾ, മരാതത്യ സദഹരാദേരൻ /സദഹരാദേരടി, പടിതത്യ
സദഹരാദേരൻ/സദഹരാദേരടി, ഭരാരത്യ-ഭർത്തൃ സദഹരാദേരൻ, ഭരാരത്യ-ഭർത്തൃ
സദഹരാദേരടി, അനനടിരവൻ, അനനടിരവൾ, എന്നടിവരുപട മരണദമരാ
അതത്യരാസന്ന ദരരാഗരാവസ്ഥദയരാ;
(ii) മകെൻ, മകെൾ, സദഹരാദേരൻ, സദഹരാദേരടി, പപൗത്രൻ,
പപൗത്രടി, ഭരാരത്യ-ഭർതത്യ സദഹരാദേരൻ, ഭരാരത്യ-ഭർതത്യ സദഹരാദേരടി, ദനർ
അനനടിരവൻ, ദനർ അനനടിരവൾ, എന്നടിവരുപട വടിവരാഹക;
(iii) തരാമസടികന്ന വശീടയ ഭരാഗടികെമരാദയരാ പൂർണ്ണമരാദയരാ
തകെരുകെ."
5. As per sub-clauses (i) to (iii) of Rule 400(1) of
Rule 2014, three circumstances are mentioned in which the
emergency leave can be granted. Rule 400(1)(i) says about
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the death or serious illness of very close relatives mentioned
in it. Rule 400(1)(ii) says about the marriage of very close
relatives. Another situation is when the house is partially or
completely collapsed. Except for these reasons, the
emergency leave cannot be granted.
6. The Division Bench of this Court in Sandhya v.
Secretary, Secretariat, Tvm. [2023 (5) KHC 174]
considered this matter in detail. It is observed that in certain
circumstances, this Court can invoke the extraordinary
jurisdiction under Article 226 of the Constitution of India. It
will be better to extract paragraph No.32 of the above
judgment:
"32. In the light of the above deliberation, and
especially in view of the dictum laid down in Nilofer
Nisha (supra), we are of the firm view that for release
of a convicted prisoner for short - term requirements,
recourse should necessarily be made to the remedy of
leave, emergent or ordinary as the case may be, under
the Prisons Act and Rules. The convict will be at liberty
to approach this Court under Art.226 of the
Constitution either upon an order being passed in the
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request of the convict for leave, or in the event of
inaction to pass such order within a reasonable time by
the statutory authority. We may also reserve the right
of the convict to approach this Court under Art.226 in
rare and exceptional circumstances, where recourse to
the statutory remedy is not feasible; or in case, the fact
situation is one for which the Prisons Act and Rules
does not offer a remedy."
7. Therefore, an emergency leave can be granted
only if the situation mentioned in Sub Clause (i) to (iii) of
Rule 400(1) exists, or there is any extraordinary situation in
which this Court can exercise the discretionary power. In all
other cases, the emergency leave is to be dismissed in
limine.
8. The petitioner's husband was sent to jail because
he murdered a person. Most of his constitutional rights are
suspended during the period of his sentence. He cannot
enjoy life like other citizens of this country. If this Court
starts to grant emergency leave to convicts on birthdays,
28th day naming ceremonies, first rice feeding ceremonies,
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etc., the people will lose faith in the judiciary. Those are not
grounds to grant emergency leave. Here is a case where the
convict seeks emergency leave to give 'pregnancy care' to
his wife. I am of the considered opinion that a convict is not
entitled to emergency leave for giving care to his wife during
the pregnancy. If that be the case, there is no difference
between a convict and an ordinary citizen. The convict
should know that the families of the victims are in this
society, and if this Court starts to grant emergency leave in
a situation like this, the victims of the deceased will lose
their faith in the judiciary. The intention of sentencing is, of
course, reformative, but the convict should be inside the jail,
denying almost all the liberties of other citizens. Then only
the purpose of sentencing to jail will be achieved. Therefore,
unless an extraordinary situation exists, emergency leave
need not be entertained by this Court. I am of the
considered opinion that, for giving pregnancy care to the
wife of the convict, this Court need not exercise the
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extraordinary jurisdiction under Article 226 of the
Constitution of India. While granting emergency leave by
invoking its extraordinary jurisdiction, this Court will always
keep in mind the interests of the victims and their relatives
as well. Their kith and kin might have been murdered after
inflicting fatal injuries. Forgetting the victims, no court can
grant parole to convicts sentenced in serious cases, invoking
the extraordinary powers of this court. The court will always
try to balance the interests of the victims and the basic
needs of the convicts. Therefore, there is no merit in this
Writ Petition (Crl.).
Accordingly, this Writ Petition (Crl.) is dismissed.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE
DM
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APPENDIX OF WP(CRL.) 978/2025
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE PETITIONER'S MEDICAL
CERTIFICATE DATED 01.07.2025
EXHIBIT P2 A TRUE COPY OF THE ORDER NO.P1-
6560/2022/CPV DATED 11.07.2025 ISSUED BY
THE 3RD RESPONDENT REJECTING THE
APPLICATION FOR EMERGENCY LEAVE
EXHIBIT P3 A TRUE COPY OF THE JUDGMENT IN WP(CRL).
723/2023 DATED 29.09.2023
EXHIBIT P4 A TRUE COPY OF THE DEATH SUMMARY ISSUED
BY THE THALASSERY MISSION HOSPITAL DATED
29/07/2025
EXHIBIT P5 A COPY OF THE OBITUARY NOTICE
