IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 WP(C).No. 34901 of 2010(K) -------------------------- PETITIONER: --------------- RAJU, AGED 43 YEARS, S/O.LATE SANKARA PILLA, THEKKATHIL, KAPPIL EAST, KIZHAKKUMURI, KRISHNAPURAM P.O., KAYAMKULAM, ALAPPUZHA PRESENTLY UNDERGOING SENTENCE AS C.NO.427, AT CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. SMT.SARITHA DAVID CHUNKATH RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 695 001. 2. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 695 001. 3. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM. 695 001. 4. THE ADGP (PRISONS), CENTRAL PRISON,THIRUVANANTHAPURAM. 695 001. 5. THE INSPECTOR GENERAL OF POLICE(PRISONS),THIRUVANANTHAPURAM. 695 001. 6. THE SUPERINTENDENT, CENTRAL PRISON, THIRUVANANTHAPURAM. 695 001. 7. THE SUPERINTENDENT, OPEN PRISON, NETTUKALTHERI - 695 121. 8. THE ADVISORY BOARD REPRESENTED BY ITS CHAIRMAN, CENTRAL PRISON, THIRUVANANTHAPURAM. 695 001. BY GOVERNMENT PLEADER ADV. MR. K.J. MOHAMMED ANZAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C). No.34901 of 2010 -------------------------------------- Dated this the 20th day of January, 2011. JUDGMENT This petition is filed by Convict No.427 who is now housed in the Central Prison, Thiruvananthapuram seeking his transfer to the open prison. It is stated in the petition that petitioner's daughter met with an accident in the year, 2009, has undergone treatment at various hospitals and the family had to spend huge amount for treatment. Petitioner, engaged in labour in the closed prison is getting only Rs.21/- per day while, if he is transferred to the open prison he can earn Rs.118/- per day and help his family in distress. It is stated that petitioner's wife is no more and hence petitioner has to care for his family. Petitioner had made several representations to the Scrutiny Committee which has to recommend prisoners for transfer to the open prison. But either his representations were not considered or have been rejected without assigning justifiable reason. In the circumstances, it is prayed that respondent No.2 to 8 may be directed to admit petitioner in the Open prison, declare that Rule 3A of the Kerala Prisons Rules, 1958 (for short, “the Rules”) is superseded by the provisions of Kerala Prisons and Correctional Services (Management) Act, 2010 and grant such other reliefs. At the time of hearing, learned counsel has confined her contention to the request for a direction to respondent Nos.2 to 8 to admit the petitioner to the open prison. WP(C) No.34901/2010 2 2. As directed by this Court, respondent No.4 has filed a counter affidavit stating the circumstances under which request of petitioner to transfer him to the open prison was rejected by the Scrutiny Committee. It is stated that petitioner, convict No.427 was admitted in the Central Prison, Thiruvananthapuram on 18.03.2006 having been convicted and sentenced for offences punishable under Sections 302, 120B, 201 and 364 of the Indian Penal Code (for short, “the Code”). Petitioner was awarded death sentence for the offence of murder. But, the appellate court modified the death sentence to imprisonment for life while confirming sentence of imprisonment awarded for rest of the offences found against him. According to respondent No.4, petitioner has completed only four years, 10 months and 12 days imprisonment. It is also stated that it is the Scrutiny Committee which is to recommend prisoners for admission in the open prison and that the recommendation made by the Scrutiny Committee has to be approved by the Inspector General of Prisons. Prisoners who are admitted to open prison are given employment in agricultural activities and hence only those who are physically fit to do agricultural labour could be transferred to the open prison. Since petitioner is undergoing regular treatment for illness he is physically incapacitated and hence could not be transferred to the open prison. Moreover, open prison is situated in a remote area where climate is cold and as per the opinion of Medical Officer, illness of petitioner aggravate during during cold climate. Ext.R4(b) is the medical report in that regard. It is contended that as per Rule 3A of the Rules well behaved 'C' class WP(C) No.34901/2010 3 male prisoners sentenced to imprisonment for three years and above, preference being given to those sentenced to longer periods may be selected from the closed prisons of the State and transferred and confined in open prison provided that no person convicted and sentenced to imprisonment for any of the full wing offences shall be selected for confinement in the open prison (class of offences is stated in paragraph 6 of the counter affidavit which includes offences relating to kidnapping, abduction, slavery and forced labour). It is contended in paragraph No.7 of the counter affidavit that as per the new enactment no revised rule has been issued by the Government. According to respondent No.4, since petitioner is not physically fit on account of his illness, he has completed only four years, 10 months and 12 days imprisonment and he is convicted and sentenced for serious offences including abduction which as per Rule 3A of the Rules is a grave offence, petitioner's contention that he is eligible for transfer to open prison was not considered. 3. In answer to the counter affidavit petitioner has filed a reply affidavit refuting contentions raised in the counter affidavit and asserting that petitioner is perfectly fit for agricultural labour. It is contended in paragraph 6 of the reply affidavit that some convicts who crossed the age of 60 years and were undergoing ayurveda treatment have been transferred (their names and convict numbers are given in paragraph 6 of the reply affidavit). It is stated that even physically handicapped persons are admitted in the open prison. 4. I have heard learned counsel for petitioner and Public Prosecutor. WP(C) No.34901/2010 4 Learned counsel has asserted the contentions raised in the petition and reply affidavit. Learned counsel has invited my attention to Ext.R4(c) to contend that though, petitioner (Sl.No.3) was also initially considered for admission in open prison the remarks column shows that his case was not recommended by the Scrutiny Committee without assigning any reason. It is pointed out from Ext.R4 (c) that Sl.Nos.26, 27 and 28 (convict Nos.8400, 8401 and 8402) who were convicted and sentenced for offences including Section 392 of the Code were recommended by the Scrutiny Committee for admission in open prison for the reason that they have already undergone sentence of imprisonment awarded for offence under Section 392 of the Code. According to the learned counsel, petitioner has been discriminated without assigning reason. Learned counsel contends that petitioner is sentenced to undergo imprisonment for five years for offence under Section 364 of the Code as per judgment dated 18.03.2006 and that period of five years, giving set off of 72 days during which petitioner was in custody in connection with investigation expired on 05.01.2011. So far as the alleged physical ailment of petitioner and consequent treatment is concerned, learned counsel states that presently petitioner is not undergoing any such treatment. 5. It is seen from Ext.R4(b) that petitioner had undergone ayurveda treatment till 24.11.2010. Further treatment if any is not indicated in Ext.R4(b). It is not clear whether petitioner is undergoing treatment after 24.11.2010. Whether, petitioner on account of his illness is fit for admission in the open WP(C) No.34901/2010 5 prison has to be considered by the Medical Officer concerned and the Scrutiny Committee having regard to the contention raised by petitioner that he is not undergoing treatment after 24.11.2010 and does not also require such treatment. 6. So far objection based on the proviso to Rule 3A of the Rules with respect to petitioner having been sentenced for offence relating to abduction is concerned, I referred to the contention raised by learned counsel that the period of imprisonment (five years) has already expired on 05.01.2011, giving the benefit of set off to the petitioner. I find from Ext.R4(c) that atleast three persons (Sl.Nos.26 to 28) who were sentenced to imprisonment for offence under Section 392 of the Code were recommended by the Scrutiny Committee for admission in the open prison for the reason that they have already undergone sentence for offence under Section 392 of the Code. If the request of those persons on that ground is allowed by the Scrutiny Committee, there is no reason why a different treatment should be given in the case of petitioner if he has already undergone sentence for offence under Section 392 of the Code. I think, it is a matter which the Scrutiny Committee has to reconsider in the light of recommendation given to Sl.Nos.26 to 28 in Ext.R4(c) and if such a recommendation is permissible under the relevant Rules. 7. Having regard to the circumstances of the case, I consider it appropriate to direct the Scrutiny Committee to reconsider request of petitioner in the light of the circumstances stated above. WP(C) No.34901/2010 6 Resultantly this petition is allowed directing the Scrutiny Committee (which is to make recommendation for admission in the open prison) to reconsider request of the petitioner having regard to the circumstances stated above. The Scrutiny Committee shall undertake that exercise as early as possible having regard to the difficulties stated by the petitioner. THOMAS P.JOSEPH, Judge. cks