IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 WP(C).No. 36406 of 2005(H) -------------------------------------- PETITIONER: ------------------ J. SILVI, M.S. BHAVAN, MATHALAMPARA, VELLANDU, NEYYATTINKARA, TRIVANDRUM. BY ADV. SMT.S.MUMTAZ RESPONDENTS: ----------------------- STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, TRIVANDRUM. GOVERNMENT PLEADER SRI. NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 36406/2005 APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE JUDGMENT IN CC NO. 214/2000. EXT.P2. COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE CHIEF MINISTER OF KERALA. EXT.P3. COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE GOVT. OF KERALA. EXT.P4. COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BY THE PETITIONER TO THE CHIEF MINISTER DT. 21/07/2005. RESPONDENT'S EXHIBITS NIL. True copy tga J.B. KOSHY AND K. PADMANABHAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = W.P(C) NO. 36406 OF 2005, W.P(C) NO. 20681 OF 2006 AND W.P(C) NO.21222 OF 2006 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the th day of November, 2007 J U D G M E N T ---------------------------- Padmanabhan Nair, J. Curtain riser Suo moto proceedings was initiated by this Court under Section 482 of the Code of Criminal Procedure for giving effect to the orders under the Code and prevent abuse of process of court. It came to the notice of this Court that several of the convicts in the prisons were granted paroles indiscriminately. Accordingly, Crl.M.C. No.400 of 2001 was registered as a suo moto proceedings and the matter was heard elaborately. In paragraph 15 of the order, we had considered the allegation that parole is being granted indiscriminately. Convicts who were accused in serious and heinous crimes were let off with imprisonment of one or two years making provisions of IPC, W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 2 :- Cr.P.C. and Statutes. We took note of the fact that some of the convicts were given more than 700 days of parole within a span or 4 or 5 years, whereas going by the Kerala Prison Rules, 1958 (hereinafter referred to as “the Rules”), maximum leave they could have obtained was somewhat 250 days. This Court also took note of the fact that convicts who were granted leave overstayed and even absconded and such persons were given leave again and again. It was held that leave cannot be granted indiscriminately. Government was directed to consolidate and publish rules for leave. We also took note of the fact that false medical certificates were obtained from Doctors for getting emergency leave. In one case the Doctor who issued the certificate filed a statement to the effect that a lady approached him and he issued a certificate on humanitarian ground. So we directed the Government that while extending the leave the reasons stated for leave should be verified. We also directed that opinion of the court which convicted the persons should also be obtained before extending leave. We further directed the Government W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 3 :- to conduct an enquiry and submit a report. Thereafter Government conducted enquiries and submitted report. In the meanwhile mother of a convict by name Udayalal who is undergoing imprisonment for life filed O.P. No.36406 of 2005 complaining that she filed a number of petitions before the Government for granting parole to his son. But no action has been taken. One Sethumadhavan filed Writ Petition No.21222 of 2006 for a declaration that Chapters 26 (comprising Rules 452A to 466), 26A (comprising Rules 466A) and 32 (comprising Rules 543 to 548) of the Rules are ultravires and also for a declaration that Section 59(1)(5) of the Travancore Cochin Prisons Act, 1950 (hereinafter referred to as “the Prisons Act, 1950) and Section 59(1) of the Prisons Act, 1894 (hereinafter referred to as “Prisons Act, 1894) are unconstitutional. Shri Jayakumar Abraham filed Writ Petition No.20681 of 2006 to strike down Section 59 of the Prisons Act, 1950 and Rule 452BB of the Rules. In the meanwhile Government filed a detailed report. We have received a number of letters from convicts and other persons. Accordingly, the matter was W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 4 :- posted for hearing. At that point of time, it was felt that for a consideration of the issues involved, it is necessary to delink the Writ Petitions from the Crl.M.C. Accordingly, the Writ Petitions were delinked and the Crl.M.C. was finally disposed of on 6.10.2006. In these Writ Petitions we are considering the various provisions for granting leave to the persons convicted for various offences. Factual matrix W.P(C) NO.36406 OF 2005 This Writ Petition is filed by the mother of convict No.7766, who is undergoing imprisonment for life. In the Writ Petition it was averred as follows: Petitioner's son was convicted for an offence punishable under Sections 302 and 307 of the Indian Penal Code on 31.3.1995. Petitioner's son along with another person was charge sheeted alleging that they committed the offence of murder and also attempted to commit murder. Second accused died during the pendency of the proceedings. While undergoing imprisonment, petitioner's son escaped from the jail on 18.11.1996 and married a Muslim W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 5 :- woman and a female child was born in that wedlock. When he realised the mistake on 15.3.2000 he surrendered before the authorities and pleaded guilty. He was found guilty of an offence for breaking the jail, convicted and sentenced to undergo imprisonment for another six months. More than 10 years elapsed since the pronouncement of the judgment. Petitioner is a chronic cardiac patient. Daughter of the convict is also undergoing treatment. A number of applications have been filed for granting parole, but no action was taken by the authorities. A large number of life convicts who had undergone imprisonment only for a short period was granted parole indiscriminately and her son's case was not considered. Hence the Writ Petition for a direction to the respondents to consider and pass orders on Exhibit P4. Respondents filed counter affidavit contending as follows: Petitioner is not entitled to get any relief sought for in the Writ Petition. Petitioner's son escaped from custody on 18.11.1996 from the work site when he was working with other prisoners outside the prison. He was recaptured and W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 6 :- readmitted to the Central Prison, Thiruvananthapuram on 15.3.2000 after 3 years, 3 months and 27 days of stay outside the prison. A case was registered against Udayalal which ended in his conviction. He was found guilty of an offence punishable under Section 225(B) IPC, convicted and sentenced. Thereafter he was not granted any kind of leave. He was transferred to the Central Prison, Kannur and he was admitted to that Prison on 31.3.2001 and he is continuing there. Mother of the convict filed application for leave and the Superintendent of Central Prison Kannur as well as the District Probation Officer recommended grant of leave, but leave could not be granted since the son of the petitioner was not a well behaved prisoner. Escape from custody constitute both prison offence and offence under Indian Penal Code. The application for leave was rejected as he was an escaped prisoner. So the respondents prayed for dismissal of the Writ Petition. W.P(C) NO.20681 OF 2006 Petitioner is an Advocate. According to him he is the W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 7 :- office bearer of several voluntary organisations and public spirited citizen. He was a co-opted member of the Committee to visit several prisons in the State as per orders of this Court in Crl.M.C. No.179 of 1989. Petitioner filed O.P. No.3489 of 1993 and Crl.M.C. No.1565 of 1992 challenging the constitutional virus of Rule 452BB of the Rules. Those petitions were allowed and Rule 452BB of the Rules was struck down Government filed W.A. Nos.737 and 1065 of 1993, but the same were dismissed. Further it was averred that immediately thereafter without regarding to the judgment of this Court and without remedying the defects pointed out in the judgment, Government reintroduced the Rules by an amendment almost in the same form with a view to continue the same in force. It was averred that parole is being granted even now to the political favourites and to criminal gangs with money and influence. Petitioner has produced press reports to show that Government had exercised such power arbitrarily against the poor and helpless prisoners and in favour of ineligible prisoners with political clout and power. It was W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 8 :- averred that most of the crimes are committed by the criminal gangs often patronised by political parties and the prisoners will get ineligible parole and they come back to the society to repeat their criminal acts. It was averred that the Rules do not concern the power of the State Government for grant of remission and commutation under the Rules. Prisons Act 1894 and Prisons Act 1950 do not provide any guideline for exercise of power of parole though Section 59 of the Prisons Act invests power in the Government for the effective functioning of the Prisons Act. Government granted parole disregarding the reports submitted by the prison authorities. The Rules confers arbitrary, unguided and uncanalised power on the State Government to act on the whims and fancies of the political bigwigs and is being misused by the Government repeatedly. Hence the Writ Petition to struck down Section 59 of the 1950 Prisons Act and Rules 452BB of the Rules. First respondent has filed a counter affidavit. It was admitted that this Court had struck down the provisions contained in Rule 452BB of Rules during March, 1993. It was W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 9 :- contended that the main reason for striking down the Rules was that the Rules as such existed during that period never prescribed any condition for grant of emergency leave. It was further contended that after striking down the Rules, this Court has made it clear that the decision will not stand in the way of appropriate provisions being made in accordance with law. In obedience to the direction contained in the decision and also invoking the power contained in Section 59 of Prisons Act 1894 and Prisons Act 1950, State had amended the Rules imposing stringent conditions for granting emergency leave, parole, etc. The Inspector General of Prisons, Government and Minister in charge of Home Department were also empowered to extend the emergency leave already granted to a maximum period of 45 days. It was also contended that in pursuant to the orders passed by this Court on 4.6.2002 steps were taken to grant leave only to genuine cases. It was contended that genuine cases were considered and recommended for leave. In some cases it was found that they are not genuine or factual and such cases were either rejected or not W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 10 :- recommended. The allegation that Government had exercised power arbitrarily against the poor and helpless prisoners and in favour of ineligible prisoners with political clout and power was denied. It was contended that Government can grant emergency leave to any prisoner exempting him from all or any of the provisions relating to the granting of leave subject to the conditions stipulated in the Rules. It was contended that the Prisons Act, 1894 empowers the State Government to make rules consistent with the Act for the award of marks and shortening of sentences. It was contended that the Rules were framed in exercise of the powers conferred on the Government under Section 59 of the Prisons Acts 1894 and Prisons Act, 1950. Power of the Government can also be traced from Section 31 of the Interpretation of General Clauses Act. So the allegation that State Act as well as the Central Act do not contain any provision for grant of leave was denied. It was contended that Prisons Act 1894 empowers the State Government to make rules consistent with the Act for award of mark and shortening of sentences. It was also W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 11 :- contended that the main goal of criminal administration is to achieve its correction and ultimate rehabilitation of the prisoners and hence they are entitled to such privileges like parole, etc. The averment that Government granted paroles disregarding the reports submitted by the Prisons authorities was denied. The averment that the Government is acting on the whims and fancies of the political bigwigs was denied. The allegation that Section 59 of the Prisons Act delegates unguided and uncanalised power on the Government to make the Rules was denied. Emergency leave is granted only on certain specified grounds. The inmates in the open prison are eligible for home leave for 15 days once in 12 months. It was contended that emergency leave is granted only on the grounds of death or serious illness of the near relative of prisoner such as father, mother, son, daughter, wife, husband, brother, sister and uncle in the case of Marumakkathayam families and marriage of son or daughter and partial or complete loss of residential building due to natural calamities. Application for emergency leave is to be accompanied by a W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 12 :- certificate of correctness of the ground stated in the petition from the local Tahsildar, Magistrate or the Senior Government Medical Officer. It was contended that Prisons Act 1894 empowers the State Government to make rules. Hence the first respondent prayed for a dismissal of the Writ Petition. W.P(C) NO.21222 OF 2006 Petitioner is a citizen of India. It was averred that he filed an application as an intervener in Crl.M.C. No.400 of 2001 and during the course of hearing of that application it was revealed that convicted persons were indiscriminately granted leave/parole by the Officers. It was averred that power to grant such leave/parole was traced to the Rules and the Rules are claimed to be framed in exercise of the powers conferred on the 1st respondent under Section 59 of Prisons Act 1894 and Prisons Act, 1950. It was averred that both statutes mentioned above have been enacted by the respective legislatures as laws relating to prisons and provide for rules for the regulations of such prisons. It was averred that Chapters 26, 26A and 32 of the Rules and Section 59(1) W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 13 :- (5) of Prisons Act 1950 and Section 59(1) (5) of Prisons Act 1894 are ultravires, illegal and unconstitutional. It was further averred that both the prisons statutes do not confer any power on the respondents to grant leave/parole to persons confined in jails though they contain powers to make rules for award of marks and rewards for good conduct. Since the statutes themselves confer no such provisions, Chapter 26, 26A and 32 of the Rules is ultravires. It was averred that on an earlier occasion this Court struck down Rule 452BB of the Rules as being arbitrary, ultravires and violative of Article 14 of the Constitution of India. That Rule was re-framed conferring more power. Hence the petitioner prayed for a declaration that Chapters 26, 26A and 32 of the Rules and Section 59(1)(5) of Prisons Act, 1950 and Prisons Act, 1894 are unconstitutional. State has filed a counter affidavit contending that the main reason for striking down the earlier Rules was that it did not prescribe any conditions for emergency leave and permission was granted to the State to re-frame the Rules and W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 14 :- accordingly the Rules were re-framed. The averment that Chapters 26, 26A and 32 of the Rules are to be quashed is denied. The averment that the Prisons Act does not confer any power to the State Government to frame Rules and hence Chapters 26, 26A and 32 are ultravires is denied. It was contended that the object of the criminal administration is to achieve the goal of correction and ultimate rehabilitation of prisoners and for that emergency leave has to be granted. Hence the respondents prayed for dismissal of the Writ Petition. PAROLE/LEAVE The word parole means the release of a person from imprisonment before the full sentence has been served. In the Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition, 2005, page 3467 it is stated that the essence of parole is release from prison, before completion of the sentence, on condition that the prisoner abide by certain rules during the balance of the sentence. It is also stated that parole is a form of conditional pardon by which the convict is released before W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 15 :- the expiration of the term to remain subject during the remainder thereof to supervision by the public authority and to return to imprisonment on violation of the condition of the parole. In the report of the All India Committee on Jail Reforms 1983, Vol.I, the Committee had considered the question of leave. In Page 241 of the said report it is stated as follows: “20.8. Different concepts such as parole, furlough, ticket of leave, home leave, etc., are used in different States to denote grant of leave or emergency release to a prisoner from prison. The terminology used is not uniform and is thus confusing. There is also no uniformity with regard to either the grounds on which leave is sanctioned or the level of authority empowered to sanction it. There is also a lot of diversity in the procedure for grant of leave. The scales at which these leaves are granted also differ from State to State; for example, in some States parole is granted for a period extending upto 15 days while in other States it is restricted to 10 days only” In Rule 452 of the Rules the word parole is defined. Nowhere in the Rules the word furlough is used. The word furlough has W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 16 :- its original from Military. The term furlough means temporarily release of persons from duty granted to soldiers. In the Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn. 2005, at page 1951 it is stated that the term furlough is variously known as temporary leaves, home visits or temporary community release. In State of Haryana v. Mohinder Singh (AIR 2000 SC 890) the Apex Court had considered the meaning of furlough and parole. It was held that the terms bail, furlough and parole have different connotations. It was further held that furlough and parole are two distinct terms now being used in the Jail Manuals or laws relating to temporary release of prisoners. These two terms have acquired different meanings in the statute with varied results. Dictionary meaning, therefore, is not quite helpful. So it may not be strictly legal to use the word parole or leave in view of the fact that this word being used judicially recognised for granting leave to the convicted persons from 1958 onwards. Now we shall consider whether the Prisons Act 1950 and W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 17 :- Prisons Act 1894 confer power to the State Government to frame rules for granting leave. The preamble of Prisons Act 1894 provides that this Act was brought into existence to amend the law relating to prisoners and to provide rules for regulation of such prison. Chapter I deals with preliminary which contains definitions; Chapter II deals with maintenance and Officers of prisons; Chapter III deals with duties of Officers; Chapter IV deals with admission, removal and discharge of prisoners; Chapter V deals with discipline of prisoners; Chapter VI deals with food, clothing and bedding of civil and unconvicted criminal prisoners; Chapter VII deals with employment of prisoners; Chapter VIII deals with health of prisoners; Chapter IX deals with visits of prisons; Chapter X deals with offence in relation to prisons; Chapter XI deals with prison offences; Chapter XII, consisting of Sections 55 to 59 deals with miscellaneous provisions. Section 59 confers power to the State Government to make rules. Section 59(5) provides for award of marks and the shortening of sentences. Section 59(28) provides for carrying into effect the purposes W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 18 :- of this Act. None of provisions in Section 59 confer power to the Sate Government to frame rules for granting leave. In Govt. of A.P. v. A.V. Rao (AIR 1977 SC 1096) the Apex Court held that Prisons Act does not confer any right upon the prisoners to claim remission. In this connection State of Andhra Pradesh brought amendment to Section 3 of the Prisons Act which deals with definition. In Section 3 after clause (4) clause 4A was inserted which defines furlough system. In the State of Maharashtra also sub-section (5) was substituted with sub-section (5A) which reads as follows: “5A. furlough systems means the system of releasing prisoners in jail on furlough in accordance with the rules for the time being in force” It is clear that the State of Andhra Pradesh as well as Maharahstra amended prisons Act, 1894 so as to bring provisions to deal with furlough system. But no such amendment was effected by the Kerala Government. Provisions of the Prisons Act, 1950 are also more or less W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 19 :- similar to the provisions of Prisons Act, 1894. Sub-section (4) of Section 59 provides for award of marks and the shortening of sentences. Sub-section (25) of Section 59 states that generally in regard to the admission, custody, employment, dieting, treatment and release of prisoners, and for other purposes consistent with this Act. So a reading of the provisions of both these Acts makes it very clear so as far as the State is concerned that there is no provisions in the Acts which enables the Government to frame Rules for granting parole/furlough/leave to the convicted persons. But we cannot close our eyes to the fact that this system of granting leave from 1958 onwards is in force. Though several Writ Petitions were filed challenging various provisions, the virus of the Rules were never challenged. In fact the petitioner in W.P(c) No.20681 of 2006 filed an earlier Writ Petition challenging the virus of Rule 452BB of the Rules. But at that time he did not challenge the provisions of the Act. The All India Committee on Jail Reforms, 1983 Vol. has considered the need for granting leave and emergency release to the jail inmates. It W.P(C) NO.36406 OF 2005 & W.P(C) NOS.20681 & 21222 OF 2006 -: 20 :- was held as follows: “Leave and emergency release to inmates are undoubtedly progressive measures which must continue in our prison system. The release of a prisoner on leave not only saves him from evils of prisonisation but also enables him to maintain social relations with his family and the community. This also helps him to maintain and develop a sense of self- confidence. Continued contacts with family and the community sustain in