Kemi vs State Of Kerala

Ashok Menon, J

The petitioner is the sister of convict No.2745, named Kenny B., presently lodged in the Central Prison and Correctional Home,

Thiruvananthapuram, after having convicted by the Additional Sessions Court-I, Mavelikkara in S.C.No.612/2011 for offences punishable under

Sections 449, 341, 324, 302 and 506(ii) read with Section 34 of the I.P.C. The conviction was confirmed by this Court.

It is stated that the convict was released on parole earlier. In the wake of COVID-19 pandemic, as per the Order of the Hon'ble Supreme Court in

Suo motu W.P.(C) No.1/2020, directions were issued by the State Government to avoid overcrowding in prisons and this Court had also given similar

directions in W.P.(C) No.9400/2020. Accordingly, the 1st respondent issued an order constituting the 2nd respondent-High Power Committee to

determine which class of prisoners can be released on parole or on interim bail. On the basis of the recommendations of the High Power Committee,

the 1st respondent had issued an order to release prisoners on parole as a part of the measure to control the COVID-19 spread. Accordingly, the

petitioner's brother was also released on 26.03.2020 and he had reported back to the prison on 18.08.2020. While on parole, the convict was implicated

in a criminal case, Crime No.954/2020 of Mavelikkara Police Station, as the 2nd accused, for an offence punishable under Section 324 read with

Section 34 of the I.P.C. It is alleged that he had voluntarily returned to the prison and was readmitted. Subsequently, there was an out of court

settlement between the petitioner's brother and the de facto complainant in Crime No.954/2020 and accordingly the case against the petitioner's

brother was quashed by this Court in Crl.M.C. No.3734/2020 at Ext.P1. Because of the unprecedented surge in COVID-19 spread during the last

few weeks in April 2021 and several persons were affected by the COVID-19, the Hon'ble Supreme Court expressed serious concern about the

spread of COVID-19, in Re-Contagion of COVID-19 Virus in Prison Case (Suo Motu W.P.(C) No.1/2020) and issued several directions and a copy

of the said direction is at Ext.P2. One of the directions issued by the Apex Court was that those who were granted parole pursuant to earlier orders of

the Apex Court should be again granted parole for a period of 90 days in order to tide over the pandemic. The High Power Committee constituted by

the State Government acted in accordance with Ext.P2 order, issued a specific order on 09.05.2021 at Ext.P3. The first clause therein provides for the

release of all those prison inmates, who were granted parole pursuant to the earlier order in 2020, for a period of 90 days. But to the utter dismay of

the petitioner, her brother, who was released on parole during 2020, was not released in pursuance of the Ext.P3 order. Even though specific

applications were preferred by the petitioner's brother to the 4th respondent for grant of ordinary parole as well, it was never considered or placed

before the 5th respondent-Jail Advisory Board. The said action of the 4th respondent is illegal and improper. It is understood that the petitioner's

brother had preferred more than five applications for grant of ordinary parole after reporting back on 18.08.2020. All those applications were rejected

without placing them before the Jail Advisory Board. It is stated that the rules do not stipulate suspension of parole of convicts, who get involved in

criminal cases while on parole. The prison rules do not provide for any such provision to hold the parole of convicts illegally, and therefore, the stand

taken by the respondents is arbitrary. Under the circumstances, the petitioner has approached this Court for a direction to the respondents to release

her brother on parole as provided in Ext.P3 order.

The 4th respondent has filed a statement stating that the petitioner's brother was housed in the Open Prison and Correctional Home at Nettukaltheri

and he was also granted parole in consequence of the earlier order of the Hon’ble Supreme Court. However, while he was on parole, he got

involved in another crime, Crime No.646/2018 of Kurathikkad Police Station, for an offence punishable under Section 393 of the I.P.C. and he was

remanded to judicial custody by the Judicial First Class Magistrate Court-I, Mavelikkara. It is true that the dispute between the de facto complainant

and the accused was settled and the crime was quashed by this Court. But while disposing of that Crl.M.C., this Court has specifically mentioned that

if the accused has incurred any disqualification from getting parole in future because of the registration of this crime, the disqualification will not be

removed by the quashing of the proceedings. Under the circumstances, the petitioner is not entitled to state that her brother had settled the matter and

because the entire proceedings in that crime were quashed by this Court, he is entitled to be released on parole again. It is further submitted that leave

is not a matter of right to a prisoner, it is a correctional tool that is granted to well behaved and eligible convicted prisoners for their rehabilitation,

reformation and positive response to the correctional treatment in the prison. A prisoner is expected to abide by the conditions in the release bond,

once he is released. As per Rule No.397(f) of the Kerala Prisons & Correctional Services (Management) Rules, 2014 (for short “the Prison

Rulesâ€), the Director-General of Prisons and Correctional Services is the authority to decide upon the matter of leave of a prisoner, who has violated

the conditions of leave on any previous occasion. This was the second instance that the petitioner's brother had committed a crime during his leave

period and the Director-General of Prisons and Correctional Services, based on the powers conferred upon him as per the aforesaid Prison Rules,

ordered to suspend the provisions of ordinary leave to the petitioner's brother for a period of one year vide Annexure R4-1 order. The earlier order of

release of the petitioner's brother on parole in the year 2020 was recalled and he was readmitted to the prison on disciplinary grounds on 18.08.2020,

cancelling his leave before its expiry as per Rule 412 of the Prison Rules. Once a prisoner violates the conditions of leave, further granting of leave to

him comes under the authority of the Director-General of Prisons and exercising jurisdiction under the said provisions, the granting of further parole to

the petitioner's brother was prohibited for a period of one year. Under the circumstances, it is submitted that the Writ Petition is not maintainable and

the same may therefore be dismissed.

Heard the learned Counsel for the petitioner and the learned Public Prosecutor.

It is true that the petitioner's brother was released on parole in the year 2020 considering the pandemic situation as per the directions of the Apex

Court. But that period of parole was not completed and it had to be cancelled in consequence of the petitioner's brother getting involved in another

crime. Whether that crime was settled or not is not a matter of concern. It will not obliterate the commission of the offence. Since the earlier parole

was cancelled, it cannot be said that the petitioner's brother is a person who was released on parole in the year 2020, and therefore, he is entitled to be

released again in consequence of the subsequent order of the Apex Court. Parole, definitely, is not a matter of right. In case the petitioner’s

brother is getting involved in criminal cases after his release on parole, it is an indication that he is not behaving himself and the correctional methods

have not been effective as regards him and that his proclivity to commit crimes has not abated.

The Petition, therefore, is not sustainable. The direction of the Apex Court to release all those prisoners, who were earlier released on parole, cannot

be applied as far as the petitioner's brother is concerned; because his parole was cancelled and it has to be taken that only those persons who were

released on parole and had completed the term would be entitled to be released on parole again. There is a bar imposed from granting parole to the

convict for a period of one year, and therefore, further parole shall be granted to him only after completion of that period. The Writ Petition is

therefore dismissed.