Kerala High Court
Rasheetha vs State Of Kerala on 21 February, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
W.P.(Crl.) No. 59 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946
WP(CRL.) NO. 59 OF 2025
PETITIONER:
RASHEETHA
AGED 45 YEARS, W/O. ASHLY,
KUNNEL, PANACHIKKAD,
KOTTAYAM DISTRICT, PIN - 686533
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 THE SECRETARY,
HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 DIRECTOR GENERAL OF PRISONS AND
CORRECTIONAL SERVICES
PRISONS HEADQUARTERS, POOJAPPURA,
THIRUVANANTHAPURAM, PIN - 695012
3 THE SUPERINTENDENT
CENTRAL PRISON AND CORRECTIONAL HOME,
POOJAPPURA,
THIRUVANANTHAPURAM DISTRICT, PIN - 695012
W.P.(Crl.) No. 59 of 2025
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4 THE DISTRICT POLICE CHIEF
KOTTAYAM, COLLECTORATE P.O.,
KOTTAYAM DISTRICT, PIN - 686002
SREEJA V., SR. PP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 21.02.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
W.P.(Crl.) No. 59 of 2025
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JUDGMENT
The petitioner is the wife of the convict, who is
undergoing life imprisonment at Central Prison and
Correctional Home, Poojappura. The petitioner filed Ext.P3
application before the respondent No.3 for ordinary leave for
her husband. It was not considered purportedly for the
reason that he was convicted for the offence under Section
20(b)(ii)A of the NDPS Act as well and hence he is not eligible
for ordinary leave as per the proviso to Rule 397 of the Kerala
Prisons & Correctional Services (Management) Rules, 2014.
2. I have heard Sri.P.Mohamed Sabah, the learned
counsel for the petitioner and Smt.V.Sreeja, the learned
Senior Public Prosecutor.
3. The petitioner's husband was convicted in the year
2018 vide Ext.P1 judgment for the offence under Sections
449 and 302 of IPC. He was sentenced inter alia for life
imprisonment. Even before he was convicted as per Ext.P1
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judgment, he was arrayed as an accused in C.C.No.1868 of
2017. The offence alleged in the said case was under Section
20(b)(ii)(A) of the NDPS Act. He pleaded guilty in that case
and he was convicted and sentenced to undergo rigorous
imprisonment for a period of one month as per Ext.P2
judgment.
4. Rule 397 of the Kerala Prisons & Correctional
Services (Management) Rules, 2014, which deals with the
grant of ordinary leave has been amended on 14/07/2023
and a proviso has been added. As per the said proviso, those
who are convicted under the NDPS Act are not eligible for
ordinary leave at all. However, it is clarified that a person
convicted for life imprisonment, who was convicted for the
offence under the NDPS Act as well can apply for ordinary
parole after the sentence imposed under the NDPS Act is
undergone.
5. According to the petitioner, the jail authority takes
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a stand that the sentence imposed on the petitioner vide
Ext.P2 judgment would run only after the sentence awarded
in Ext.P1 is undergone. The learned counsel for the petitioner
relying on Section 467(2) of BNSS submitted that the stand
taken by the jail authorities is not legally correct. The learned
Public Prosecutor submitted that the fact that the petitioner's
husband is convicted and sentenced in an NDPS crime is not
the sole reason for not considering his application for
ordinary leave.
6. Section 467(2) of Bharatiya Nagrik Suraksha
Sanhita (for short, 'the BNSS') says that when a person
already undergoing a sentence of imprisonment for life is
sentenced on a subsequent conviction to imprisonment for a
term or imprisonment for life, the subsequent sentence shall
run concurrently with such previous sentence. The petitioner
had already undergone sentence for more than six years.
Hence, it has to be treated that he had undergone sentence
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imposed as per Ext.P2. Therefore, the fact that he was
convicted as per Ext.P2 is not a ground for not considering
his application for ordinary leave.
7. In these circumstances, I am of the view that
Ext.P3 application filed by the petitioner for ordinary leave of
her husband deserves consideration in accordance with law.
Hence, the respondent No.2 is directed to consider Ext.P3
application submitted by the petitioner for ordinary leave for
her husband, in accordance with law, within a period of one
month from the date of receipt of a copy of this judgment.
The writ petition is disposed of as above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
APA
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APPENDIX OF WP(CRL.) 59/2025
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 28.04.2018 IN
S.C. NO. 71/2014 PASSED BY THE HONOURABLE COURT
OF THE ADDITIONAL SESSIONS JUDGE-IV, KOTTAYAM
EXHIBIT P2 TRUE COPY OF THE JUDGEMENT DATED 06.06.2022 IN
C.C. NO. 1868/2017 OF THE HONOURABLE JUDICIAL
FIRST-CLASS MAGISTRATE COURT-I, KOTTAYAM
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE PETITIONER DATED 13.01.2025 BEFORE THE 3RD
RESPONDENT
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 03.03.2023 IN
W.P. (CRL.) NO.1238/2022 PASSED BY THIS
HONOURABLE COURT
