Kerala High Court
Jasmin Shaji vs State Of Kerala on 24 June, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
WP(CRL.) NO. 770 OF 2025 1
2025:KER:45587
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
WP(CRL.) NO. 770 OF 2025
PETITIONER/S:
JASMIN SHAJI
AGED 45 YEARS
W/O. SHAJI POOVATHIL, THEKKEVELIYIL, MANNANCHERY,
ALAPPUZHA, PIN - 688538
BY ADVS.
SHRI.K.S.MADHUSOODANAN
SRI.M.M.VINOD KUMAR
SRI.P.K.RAKESH KUMAR
SRI.K.S.MIZVER
SHRI.M.J.KIRANKUMAR
SHRI.SHAIQ RASAL M.
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRETARY, HOME DEPARTMENT,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN -
695001
2 DIRECTOR GENERAL OF PRISON
CENTRAL PRISON AND CORRECTIONAL HOME, POOJAPPURA,
THIRUVANANTHAPURAM, PIN - 695012
WP(CRL.) NO. 770 OF 2025 2
2025:KER:45587
3 INSPECTOR GENERAL OF PRISON
CENTRAL PRISON AND CORRECTIONAL HOME, POOJAPPURA,
THIRUVANANTHAPURAM, PIN - 695012
4 DEPUTY INSPECTOR GENERAL OF PRISON
CENTRAL PRISON AND CORRECTIONAL HOME, POOJAPPURA,
THIRUVANANTHAPURAM, PIN - 695012
5 SUPERINTENDENT OF CENTRAL PRISON AND CORRECTIONAL
HOME
POOJAPPURA, THIRUVANANTHAPURAM, PIN - 695012
BY ADVS.
PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
SRI C K SURESH, SR PP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 24.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(CRL.) NO. 770 OF 2025 3
2025:KER:45587
CR
P.V.KUNHIKRISHNAN, J
--------------------------------------
W.P. (Crl.) No. 770 of 2025
--------------------------------------
Dated this the 24th day of June, 2025
JUDGMENT
Justice, without the soft hand touch of humanity,
compassion, and empathy is not justice. But humanity,
compassion and empathy are matters of judicial discretion
which is to be used based on the facts and circumstances of
each case.
2. The petitioner's husband is a condemned prisoner,
facing capital punishment based on the judgment of the Addl.
Sessions Court - I, Mavelikara in SC No. 461/2022. The
husband of the petitioner, who is to be hanged to death based
on the above judgment, subject to the appeal pending before
this Court and other remedies available to him, has approached
2025:KER:45587
this Court with this petition through his wife against the denial
of escort visit/emergency parole to him to see his bedridden
mother aged 93 years. The authorities dismissed the same,
stating that the law is against granting such escort
parole/emergency parole to the condemned prisoner, who is
sentenced to death by a court of law. Whether this Court can
invoke the jurisdiction under Article 226 of the Constitution of
India in this particular case is the question.
3. The mother of the petitioner's husband is aged 93 and
was hospitalised earlier. At that time, the petitioner submitted
an application for escort visit/emergency parole on behalf of the
prisoner to the 5th respondent for visiting the ailing mother by
the prisoner. But, it was rejected by Ext.P1 order dated
12.12.2024. It is submitted that the prisoner's mother was
hospitalised again on 19.05.2025 at TD Medical College
Hospital, Alappuzha. Ext.P2 is the treatment certificate. Ext.P3
is the CT Scan Brain from the Department of Radio Diagnosis of
TD Medical College Hospital dated 20.05.2025, of the mother of
2025:KER:45587
the prisoner. She was discharged on 26.05.2025 and now, she is
at her home suffering from multi-infarct syndrome, vascular
dementia and generalised osteoporosis. It is submitted that the
mother of the prisoner is completely bedridden. Ext.P4 is the
discharge card of the mother of the prisoner. Therefore, the
petitioner again submitted an application to the 5 th respondent
seeking either emergency parole or an escort visit at her own
expense by enclosing the medical records. Ext.P5 is the
application. The 5th respondent, by order dated 11.06.2025,
rejected Ext.P5 as per Ext.P6. Hence, this writ petition is filed
with the following prayers :
i. "Call for records connecting Exhibit P1 to P6 from
the respondents concerned;
ii. Call for Exhibit P6 from 5th respondent and Issue
Writ of Certiorari to quash the same;
iii. Declare that condemned prisoners are entitled for
emergency parole/escort parole under Rule 400 of Kerala
Prisons and Correctional Services (Management) Rules,
2014;
iv. Issue Writ of Mandamus directing the respondents
to grant emergency parole or escort parole to petitioner's
husband - Shaji (C No. 6192) imprisoned at Central
2025:KER:45587
Prison and Correctional Home, Poojapuram,
Thiruvananthapuram to visit his mother;
v. Dispense with filing of the translation of vernacular
documents;
vi. Such other reliefs as this Hon`ble Court may deem
fit and proper; A N D
vii. Award cost to the petitioner."[sic]
4. Heard the learned counsel for the petitioner and the
learned Public Prosecutor.
5. The counsel for the petitioner submitted that, even if
the law does not permit emergency parole/escort visit to a
condemned prisoner, this Court has ample jurisdiction to permit
the same under Article 226 of the Constitution of India. The
counsel submitted that, on humanitarian consideration, the
petitioner's husband may be given emergency escort parole to
see his mother. The Public Prosecutor seriously opposed the
same. The Public Prosecutor took me through Sec.42 of the
Kerala Prisons and Correction Services (Management) Act,
2010 (for short 'Act 2010') and also Rule 339(2) of the Kerala
Prisons and Correction Services (Management) Rules (for short
2025:KER:45587
'Rules'). The Public Prosecutor submitted that there is a
prohibition on granting an escort visit/emergency parole to a
condemned prisoner who is awaiting a death sentence. The
Public Prosecutor also relied on a judgment of this court dated
22.03.2024 in W.P.(Crl) No.300 of 2024 by which this court
rejected a prayer for parole to a contempt prisoner.
6. This Court considered the contentions of the
petitioner and the Public Prosecutor. Section 42 of the Act,
2010 says that every prisoner sentenced to death shall be
treated as a normal convicted person until his final executable
sentence is passed, but such a prisoner is not entitled to any
leave or escort visit. Similarly, Rule 339(2) also says that the
convicts, who are sentenced to death, are not entitled to
ordinary leave or escort visit. Relying on these provisions, the
impugned order is passed. Therefore, this Court cannot say that
the impugned order is illegal.
7. The main argument of the counsel for the petitioner is
based on humanitarian consideration. It is true that, the
2025:KER:45587
petitioner's husband is not deserving any humanitarian
consideration because the prosecution case against him and the
other accused is that they brutally murdered the victim in front
of his mother, wife and child. The trial court found that the
prisoner is guilty, of course, the appeal is pending. The victim's
mother, wife and child are anxiously looking towards the court
for the confirmation of the conviction and sentence, and to see
that the sentence is executed at the earliest. Therefore, this is a
case where the petitioner's husband, along with other accused,
orphaned the mother, wife and child of the victim. Now the
prisoner wants to see his 93-year-old ailing mother. If anybody
said that the prisoner's request is like the words of " A wolf in
sheep's clothing", they cannot be blamed.
8. But, a court of law cannot take an inhuman stand like
the prisoner who orphaned the kith and kins of the victim. India
is not a country where retributive punishment like "an eye for
an eye, a tooth for a tooth" is adopted. Our country known for
its humanity, compassion, and empathy while delivering justice.
2025:KER:45587
It is the duty of the constitutional court to see that the
fundamental needs and basic rights of a prisoner is protected
till the sentence is finally executed. The petitioner's husband is
hoping a relief in the appeal pending before this Court which is
filed against the death sentence. On the other hand, the mother
of the petitioner's husband is also bedridden and is in a sinking
stage. When the prisoner, who is a condemned prisoner waiting
for death sentence submit before this Court that he want to see
his mother, who is in a sinking stage, this Court cannot shut its
eye, even though he was inhuman to the deceased and his
relatives, when he committed the murder, which is found as
true by the trial court. Therefore, I am inclined to grant the
prayer in this writ petition. It is true that there is a bar for
releasing the condemned prisoner as per Sec.42 of the Act,
2010 and Rule 339 (2) of the Rules. But to protect the basic
rights of an individual, whether he is a convict or condemned
prisoner, this Court can invoke the extra ordinary jurisdiction
under Article 226 of the Constitution of India. Here is a case
2025:KER:45587
where the condemned prisoner want to see his sinking mother,
who is aged 93. The medical evidence fully justified that the
mother of the convict is in a sinking stage. I think an escort
parole can be allowed. The public Prosecutor relied on a
judgment of this court dated 22.03.2024 in W.P.(Crl) No.300 of
2024 by which this court rejected a prayer for parole to a
condemned prisoner. But that was a case in which the parole
was requested for participating in a marriage, which this court
rightly rejected. That is not the situation here.
Therefore, this writ petition is allowed in the following
manner :
1) Exhibit P6 is set aside.
2) The respondents Nos. 2 to 5 are directed to take the
petitioner's husband on escort parole to see his mother,
within 3 days from the date of receipt of a certified copy of
this judgment. The convict should be allowed to spend a
minimum of 6 hours with his mother, of course, under the
strict surveillance of the escorting police.
2025:KER:45587
3) Necessary arrangement shall be made by the District
Police Chief (Thiruvananthapuram City) for granting
escort parole to the petitioner's husband forthwith.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
2025:KER:45587
APPENDIX OF WP(CRL.) 770/2025
PETITIONER EXHIBITS
Exhibit P1 PHOTOCOPY OF THE ORDER BEARING NO. CP-
5(3)- 4742/2024/C.P.TVM BY THE 5TH
RESPONDENT
Exhibit P2 PHOTOCOPY OF THE TREATMENT CERTIFICATE
DATED 19-05-2025 OF GOVT. T.D. MEDICAL
COLLEGE HOSPITAL, ALAPPUZHA
Exhibit P3 PHOTOCOPY OF THE REPORT OF C.T.SCAN BRAIN
FROM DEPARTMENT OF RADIO DIAGNOSIS OF
T.D. MEDICAL COLLEGE HOSPITAL
Exhibit P4 PHOTOCOPY OF THE DISCHARGE CARD DATED 26-
05-2025
Exhibit P5 PHOTOCOPY OF THE APPLICATION SUBMITTED TO
5TH RESPONDENT DATED 10-06-2025
Exhibit P6 PHOTOCOPY OF THE ORDER OF 5TH RESPONDENT
DATED 11-06- 2025 BEARING NO. CP5-
6192/EL/2025/CPTVM.
