IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 WP(C).No. 19947 of 2010(Q) --------------------------------------- PETITIONER: ------------------- SHYNI ELDHOSE, 32 YEARS W/O.ELDHOSE, CHAKKUNGAL HOUSE NELLAD P.O, ERNAKULAM DISTRICT. BY ADVS. SRI.T.A.UNNIKRISHNAN, SRI.P.P.BIJU, SRI.K.S.PRAVEEN. RESPONDENTS: ------------------------ 1. THE GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001. 2. THE ADDITIONAL DIRECTOR GENERAL OF POLICE (PRISONS), THIRUVANANTHAPURAM- 695 001. 3. THE SUPERINTENDENT, CENTRAL PRISON, KANNUR - 671 321. R1 TO R3 BY GOVT. PLEADER SRI. P.A. SALIM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- W.P.C.NO.19947 OF 2010 --------------------------------------------- Dated 1st October, 2010 O R D E R Husband of the petitioner is the life convict undergoing sentence in Central Prison, Kannur. Petition is filed under Article 226 of Constitution of India for a writ of mandamus directing respondents to temporarily release him on parole as provided under the Provisions of Kerala Prisons Rules, 1958. It is contended that mother of the convict is suffering from serious ailments due to old age and she desires to see her son and the only child of the convict is six years old and he had never seen his father and though husband of the petitioner, was undergoing the sentence, he was not released on parole so far and therefore, direction is to be issued. It is Wpc 19947/10 2 contended that though by Ext.P2 communication it was informed that convict was not released for want of a report from Police and Probation officer and it would be considered when a favourable report is received, the convict is not being released on parole. 2. As per order dated 1/7/2010 this Court directed the Superintendent of Central Prison, Kannur to inform the date of admission of the husband of the petitioner, whether he was granted parole or leave and if so, the details and whether there was any objection on legal ground against grant of parole and the relevant rules relating to the parole and leave. Superintendent of Central Prison, Kannur reported that the convict was admitted to the Central prison from Sub Jail, Ernakulam on 12/3/2006 pursuant to the judgment of Additional Sessions Judge-II, Ernakulam and his Wpc 19947/10 3 sentence is imprisonment for life under Section 302 of Indian Penal Code and he was not granted any parole or leave till date and he was not granted parole for want of favourable Police and Probation reports and report of the Superintendent of Police, Ernakulam dated 15/6/2010 (a copy was appended) is not in favour of the convict and the convict was admitted to Mental Health Centre on 16/11/2008 for treatment and the convict could be granted parole only if, he is in a sound mental condition. 3. Learned counsel appearing for the petitioner and learned Government Pleader were heard. 4. Under Rule 452 of Kerala Prisons Rules, two types of leaves are available, ordinary and emergency. Rule 453 provides for ordinary leave. Under Sub Rule (1), well Wpc 19947/10 4 behaved prisoners sentenced to imprisonment for one year and above and who have served out actually 1/3rd of the sentence or two years, whichever is less, are eligible for ordinary leave. Under clause (d) every petition for leave under the rules shall be accompanied with a report from the Sub Inspector of Police concerned, on the repercussions on the law and order situation, if the prisoner is released on leave, particularly his own safety as well as that of others, the possibility if any, of the prisoner absconding, instances of previous misconduct on his part when on leave earlier and all such other relevant points. The Superintendent of the Jail shall give his specific recommendation with due reference of the conduct of the prisoner in prison, his previous history in relation to leave, possibility of his absconding and also the Wpc 19947/10 5 aggregate number of days of leave he has already enjoyed. Under Sub Rule (2) of Section 453, ordinary leave shall be granted up to a maximum of thirty days at a time. Under Sub clause (iv) of clause (h), prisoners suffering from unsoundness of mind or contagious diseases are not eligible for leave. The note thereunder provides that in the case of prisoners mentioned in the above item, eligibility should be decided in accordance with the opinion of the Medial Officer attached to the prison. 5. Parole sought for was not granted, as is seen from the report of the Superintendent of Prison, for want of favourable report from the Police and also considering his mental condition. In view of the statement, Superintendent of Central Prison was directed to produce the convict before Wpc 19947/10 6 the Mental Health Centre, Kozhikode for examination and submit a report from the Psychiatrist as to whether he is mentally fit to be released on parole. Learned Government Pleader made available the report issued by the Junior Consultant, Psychiatry, Government Mental Health Centre, Kozhikode after examination of the convict on 11/9/2010, to the effect that the convict is fit for getting parole. Therefore, sub clause (iv) of clause (h) of Sub Rule (1) of Rule 453 of Kerala Prison Rules will not disentitle the convict availing parole. Report of the Superintendent shows that subsequently, report from Superintendent of Police was received, which is not in favour of the convict. Copy of the report submitted by the Superintendent of Police not recommending the leave based on the report submitted by the Sub Inspector of Police Wpc 19947/10 7 is also produced. In the light of the report, it cannot be directed that the convict shall be released on parole. Ext.P2 itself reveals that as and when favourable report is received, petitioner would be granted leave. Fact that report received from the Sub Inspector on 15/6/2010, to the effect that leave is not recommended, will not preclude the Superintendent of Police for calling for a fresh report from the concerned Inspector of Police and considering the application in accordance with rules. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.