IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 WP(C).No. 30062 of 2008(D) ----------------------------------------- PETITIONER(S): ------------------------- PODIYAN, AGED 50, C.NO.2015, OPEN PRISON, NETHUKALTHERI, KOTTOOR P.O. THIRUVANANTHAPURAM 12,(S/O.ANTHAPPAN, THAIPARAMBIL HOUSE, KALAVAMKODAM P.O.CHERTHALA) BY ADVOCATES MR.K.S.MADHUSOODANAN, MR.T.V.JAYAKUMAR NAMBOODIRI, MR.THUSHAR NIRMAL SARATHY. MR.M.M.VINOD KUMAR, SMT.K.M.RAMYA RESPONDENT(S): --------------------------- 1. STATE OF KERALA TO BE REP.BY SECRETARY, HOME DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, PRISON, THIRUVANANTHAPURAM. 3. SUPERINTENDENT, OPEN PRISON, NETTUKALTHERI, KOTTOOR P.O. THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.30062/2008 D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER OF THE 1ST RESPONDENT G.O.(RT) NO.1183/08/HOME DTD. 11/04/08. EXT.P2: COPY OF THE REPRESENTATION TO THE 3RD RESPONDENT DTD. 15/04/08. EXT.P3: COPY OF THE REPRESENTATION DTD. NIL TO THE GOVERNOR. EXT.P4: COPY OF THE CERTIFICATE ISSUED BY THE SUPERINTENDENT, SUB JAIL, MUVATTUPUZHA DTD. 21/06/08. EXT.P5: COPY OF THE RELEVANT PAGE NOS.3 TO 5 OF JUDGMENT IN S.C.67/1985 DTD. 19/12/1985. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ----------------------------- W.P.(C) No.30062 of 2008 -------------------------------------- Dated this the 2nd day of February, 2009 JUDGMENT The petitioner was the 17th accused in S.C No. 67/1985 on the file of the Sessions court, Thodupuzha. He was convicted on 19/12/1985 and was sentenced to life imprisonment. From Exhibit P5 judgment of the trial court, it can be seen that the petitioner was arrested on 15/04/1980 and released on bail on 8/07/1980. Appeal was also dismissed. Subsequently, orders passed by the Supreme Court, he was released on bail on 19/3/1992. When the conviction was confirmed, he surrendered on 5/11/1998. Exhibit P1 is the notification issued by the first respondent exercising its powers under Article 161 of the Constitution of India with the approval of the Government, ordering release of 104 prisoners, who have actually undergone imprisonment for 14 years and above (without any remission) as on 31/12/2007 and in whose case, there are favourable reports either from the Police or Probation Officer or W.P.(C) No.30062 /2008 2 both. 2. The case of the petitioner is that as on 31/12/2007, if the pre-trial detention of 85 days, during the period of 15/04/1980 to 8/07/1980 is also given credit, he had completed 14 years and 3 days. Therefore, it is stated that by not releasing him along with others mentioned in Exhibit P1, he has been discriminated, violating his fundamental rights under Article 14 of the Constitution of India. 3. The contention raised in the counter affidavit filed by the respondents 2 and 3 is that those who have been ordered to be released as per Exhibit P1, notification have suffered actual imprisonment for 14 years or more, as on 31/12/2007. It is stated that if the period of actual imprisonment of the petitioner as on 31/12/2007 is reckoned, he had completed only 13 years 9 months and 9 days. Thus the contention of the Government Pleader is that the beneficiaries of Exhibit P1, have suffered actual imprisonment of 14 years or more and that as the petitioner has not suffered W.P.(C) No.30062 /2008 3 actual imprisonment for the aforesaid period, there is no substance in his contention that he has been discriminated. 4. In the petition filed as I.A.No.906/2009, petitioner has stated that serial nos. 19 and 21 who have been released from the open prison, Nettukaltheri, were given the benefit of pre-trial detention. When this petition was filed, the case was adjourned with a direction to the learned Government pleader to obtain clarification from the authorities. 5. In so far as the Serial no.19, Sukumaran (convict No.1857) is concerned, learned Government pleader submits that his pre-trial detention was during the period 2/4/1991 to 4/5/1991 and was given credit, acting upon the communication dated 29/5/1996, received from the Additional Sessions Court, Thodupuzha stating set off was allowed in his case. Similarly, in so far as the serial no.21, Velayudan (convict No.1983) is concerned, it is stated that his pre-trial detention period was specified in the warrant of commitment received at the Central W.P.(C) No.30062 /2008 4 Prison. According to the respondents, it was acting upon the communication from the Court and the entries in the warrant of commitment, that the period of pre-trial detention period was given credit while reckoning period of actual imprisonment. 6. Thus, in so far as at least the aforesaid two persons are concerned, it is evident that pre-trial detention period has been given credit and it is on that basis that the 14 years or more period has been reckoned for the purpose of releasing them as per Exhibit P1, notification. Evidently, in so far as the petitioner is concerned, he too has suffered pre-trial detention for 85 days during the period 15/4/1980 to 8/07/1980. If that period is also given reckoned, as on 31/12/2007, he too had completed 14 years and would have got the benefit of Exhibit P1. Since, at least two persons have been given the benefits, petitioner being similarly situated, should also have been given the benefit and should have been ordered to be released along with the persons mentioned in Exhibit P1. W.P.(C) No.30062 /2008 5 In view of this, writ petition is disposed of directing that the respondents, shall release the petitioner from the jail giving him the benefit of Exhibit P1, notification forthwith, on the production of copy of this judgment. ANTONY DOMINIC, JUDGE scm