No Acts & Articles mentioned in this case
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 30
TH
DAY OF JANUARY 2023 / 10TH MAGHA, 1944
WP(CRL.) NO. 188 OF 2022
PETITIONER:
SWATHI SIBI,
AGED 29 YEARS, W/O.SIBI, KAITHARATH HOUSE,
CHENGALUR DESOM, PUTHUKKADU PANCHAYATH,
MUKUNDAPURAM TALUK, THRIUSSUR DISTRICT-680001.
BY ADVS.
P.M.RAFIQ
M.REVIKRISHNAN
AJEESH K.SASI
MITHA SUDHINDRAN
RAHUL SUNIL
SRUTHY N. BHAT
SRUTHY K.K
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTEDBY THE SECRETARY TO HOME DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL SERVICES,
JAIL HEADQUARTERS, POOJAPPURA, THIRUVANANTHAPURAM-695012.
3 SUPERINTENDENT,
CENTRAL PRISON AND CORRECTIONAL HOME, SHORANUR ROAD, VIYYUR,
THRISSUR, KERALA-680010.
*ADDL. R4THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM.
*(IMPLEADED AS ADDL. R4 VIDE ORDER DATED 07/04/2022 IN
WP(CRL).
BY ADVS.
SRI.ASOK M. CHERIAN, ADDL. ADVOCATE GENERAL
SMT.SABEENA P. ISMAIL, PUBLIC PROSECUTOR
SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR
OTHER PRESENT:
SRI ALEX M. THOMBRA-SR. GP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
30.01.2023, ALONG WITH WP(Crl.).236/2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2023/KER/14849
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 30
TH
DAY OF JANUARY 2023 / 10TH MAGHA, 1944
WP(CRL.) NO. 236 OF 2022
PETITIONER:
ARUNIMA V.M.,
AGED 35 YEARS, W/O. ROSHAN,
CHANASERY (H), KANNAMBATHUR, THORAVU,
MUKUNDAPURAM, PIN – 680312.
BY ADVS.
K.R.VINOD
M.S.LETHA
K.S.SREEREKHA
NABIL KHADER
GEORGE ROY
RESPONDENTS:
1 THE DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL SERVICES,
DEPARTMENT OF PRISONS, POOJAPPURA,
THIRUVANANTHAPURAM - 695012.
2 THE DISTRICT POLICE CHIEF,
THRISSUR, RAMAVARMAPURAM ROAD, THRISSUR - 680631.
3 DISTRICT PROBATION OFFICER,
THRISSUR, DISTRICT PROBATION OFFICE, KALYAN NAGAR,
AYYANTHOLE, THRISSUR, PIN- 680003.
4 THE PRISON ADVISORY COMMITTEE,
CENTRAL PRISON,VIYYUR, REPRESENTED BY ITS CHAIRMAN,
CENTRAL PRISON VIYYUR, THRISSUR- SHORNUR ROAD, VIYYUR,
THRISSUR, KERALA - 680010.
5 THE STATION HOUSE OFFICER
PUTHUKKAD POLICE STATION, THRISSUR, PIN - 680509.
*ADDL. R6THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM.
*(IMPLEADED AS ADDL. R6 VIDE ORDER DATED 07/04/2022 IN
WP(CRL).
BY ADVs.
SRI. ALEX M.THOMBRA
SRI.ASOK M. CHERIAN, ADDL. ADVOCATE GENERAL
SMT.SABEENA P. ISMAIL, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
30.01.2023, ALONG WITH WP(Crl.).188/2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2023/KER/14849
(CR)
ALEXANDER THOMAS & C.S. SUDHA, JJ.
-----------------------------------------------------------------------------
W.P. (Crl.) No.188 of 2022 & W.P. (Crl.) No.236 of 2022
----------------------------------------------------------------------------
Dated this the 30
th
day of January, 2023
JUDGMENT
Alexander Thomas, J.
“3. ……. Punitive therapeutics must be more enlightened than the blind strategy of
prison severity where all that happens is sex-starvation, brutalisation, criminal
companionship, versatile vices through bio-enviromnental pollution, dehumanised cell
drill under “zoological conditions” and emergence, at the time of release, of an
embittered enemy of society and its values with an indelible stigma as convict stamped
on him — a potentially good person “successfully” processed into a hardened
delinquent, thanks to the penal illiteracy of the Prison System. The Court must restore
the man”
-V R Krishna Iyer in Phul Singh v. State of Haryana
[(1979) 4 SCC 413: AIR 1980 SC 249]
1. The prayers in the aforecaptioned Writ Petition (Criminal),
W.P.(Crl).No. 188/2022 are as follows:
"i.Issue a writ in the nature of mandamus or any other appropriate writ,
order or direction to the 2nd Respondent to grant parole of fifteen days to
the husband of the petitioner (Sibi – Convict No.4044), who is undergoing
incarceration at Central Prison and Correctional Home Viyyur, in
accordance withe law;
ii.To grant any such other and further relief as this Hon'ble Court may
deem fit in the facts and circumstances of the case, so as to meet the ends
of justice."
2.The prayers in the aforecaptioned Writ Petition
(Criminal), W.P.(Crl).No. 236/2022 are as follows:
"i) To call for records pertaining to exhibit P4 order and quash the
same by issuing a writ of Certiorari.
ii) To issue a writ of mandamus directing the 1st respondent to
reconsider the Exhibit P3 application for parole to the husband of
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 2
the petitioner, after providing an opportunity of hearing to the
petitioner.
iii)To issue any other writ or direction appropriate in the
circumstances of this case."
3.Heard Sri.Ajeesh K.Sasi, learned counsel appearing for
the petitioner in W.P.(C).No. 188/2022, Sri.K.R.Vinod, learned
counsel appearing for the petitioner in W.P.(C).No. 236/2022 and
Sri.Asok M.Cherian, learned Addl. Advocate General instructed and
assisted by Smt.Sabeena P. Ismail, learned Prosecutor appearing for
the respondents in these two cases.
4.After hearing both sides, a Division Bench of this Court
has already passed a detailed common order on 7.4.2022 in these
two cases, whereby the relief of leave/parole was granted to the sole
petitioners in these two cases and certain other observations were
also made by this Court for considering the impact of certain
provisions in the Prisons' Rules concerned. We are now told by both
sides that the benefit of the interim order of granting parole/ leave to
the two convicts concerned has already been given by the
respondents and the same has already been worked out.
5.In para No.9 on pages 10 and 11 of the abovesaid order
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 3
dated 7.4.2022 this Court had specifically ordered that the convicts
concerned, who are the relatives of the petitioners, shall be released
on parole on execution of the requisite bond and after furnishing two
solvent sureties and with certain other conditions and the release on
parole was ordered to be for a period of one month. As the convicts
have already been released on parole, in compliance with the
abovesaid order dated 7.4.2022, and as the said one month period is
already over, it is ordered, in the interest of justice, that the
directions issued by this Court, for grant of parole/leave as above,
will stand approved in this judgment as well. In case the convicts
concerned have any further grievances, regarding grant of
leave/parole, in future, it is for them to seek such benefit in
accordance with the rules and the norms. Therefore, no further
orders and directions are required, as regards the main prayers
made in these W.P.(Crl)s., in the matter of grant of parole/leave to
the two convicts concerned. However, we have to deal with certain
other issues regarding the impact of certain provisions of the Rules
concerned, mainly the Kerala Prisons & Correctional Services
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 4
(Management) Rules, 2014, framed under the provisions of the
Kerala Prisons & Correctional Services (Management) Act, 2010.
6.The 1
st
respondent Director General of Prisons &
Correctional Services, has filed affidavit dated 17.5.2022 in
W.P.(Crl).No.188/2022 and the learned Prosecutor has also filed a
memo for adopting the pleadings in that affidavit in the companion
matter, viz., W.P.(Crl).No.236/2022. Further, in compliance with
the order dated 17.4.2022, passed by the Division Bench of this Court
in these cases, the additional respondent, Chief Secretary to
Government of Kerala, has also filed affidavit dated 22.6.2022 in
W.P.(Crl).No. 188/2022 and also producing therewith documents as
per Ext.R-4(a) and R-4(b).
7.Before dealing with the subsisting issues, it may be
pertinent to have an overview of some of the relevant provisions of
the aforesaid Act and the Rules.
8.Sec. 73 of the Kerala Prisons & Correctional Services
(Management) Act, 2010 (hereinafter referred for short as “the Act”
deals with release on parole of convicted prisoners and it is
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 5
stipulated therein that “the State Government may, subject to
conditions as may be prescribed, release on parole, for such period as
it deems necessary, a convicted prisoner in the case of any serious
illness or death of any member of the prisoner's family or of any of
the nearest relatives or for any sufficient cause. The Rule
corresponding to Sec.73 appears to be Rule 400 of the aforesaid
Kerala Prisons & Correctional Services (Management) Rules, 2014
(hereinafter referred for short as “the Rules”), which deals with the
conditions to be fulfilled for emergency leave. It appears that the
term “parole” is not used anywhere in the Rules and the expression
used in Rule 400 is “emergency leave”, whereas Sec. 73 of the Act
speaks about parole.
9.Sec. 78 of the Act deals with leave. Sec. 78(1) enables
grant of leave to well behaved, eligible, convicted prisoners with the
objective of their better rehabilitation and re-socialisation as an
incentive for good behavior and responsiveness to correctional
treatment, in such a manner and subject to such conditions as may
be prescribed.
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 6
10.The Rule corresponding to Sec.78 is Rule 397 of the
above Rules, which stipulates the conditions to be fulfilled for grant
of ordinary leave. Rule 397 (f) conceives that the first leave is to be
granted by the Director General of Prisons and the subsequent leaves
by the Superintendent of the Prison concerned. Further that, if the
leave conditions are violated, the subsequent leave is to be granted by
the Director General alone. Clause (h) of Rule 397 stipulates that the
application for leave should contain the following materials:-
(i)report of the local police concerned on the safety of the
convict as well as safety of others on his release, his
antecedence, etc.
(ii)report of the Jail Superintendent on his behaviour in jail
(iii)report of the District Probation Officer on family
circumstances, social acceptability of the person, etc.
11.The District Level Review Committees are conceived in
Rule 399, in order to review cases of prisoners, whose application for
leave was rejected thrice because the reports regarding the convict
concerned were adverse. The said District Level Review Committee
can recommend the release of the prisoner on leave after reviewing
his case. It appears to be the intention of the Rule, though it is not
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 7
explicitly made clear in the Rules, that it is incumbent that the
District Level Review Committee may not dismiss cases under review
merely by relying on the adverse reports and as such, the review
committees are obligated to have independent application of mind by
considering various inputs. The District Level Review Committee
comprises of the District Collector as its Chairperson and the Police
Commissioner/Superintendent of Police and the Regional Deputy
Inspector General of Prisons as members. The Chief Welfare Officer
and the Probation Officer concerned are also members of the above
committee. The Jail Superintendent concerned is the Convener of the
above District Level Review Committee. It is common ground that
there is no explicit provision in the Rules, prescribing the periodicity
of meetings of the above District Level Review Committee. From the
pleadings on record, it appears that the constraints of Covid-19,
during the last three years or so, have resulted in delay in convening
the timely and periodical meetings of the District Level Review
Committee. Further, a prisoner, whose leave application has been
rejected, may prefer an appeal, as stipulated under Rule 404 of the
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 8
Rules. If the rejection is by the Superintendent, the appeal lies
before the Deputy Inspector General. If the rejection is by the Deputy
Inspector General of Prisons, the appeal then is to be preferred
before the Inspector General and if the rejection is by the Inspector
General, then appeal lies before the Director General. If the rejection
is by the Director General, then, appeal lies before the Government.
12.Sec.77 of the Act contemplates formation of Advisory
Committees at the jail level to recommend premature release of long
term convicted prisoners. Rule 462 of the Rules prescribes that there
should be such Advisory Committees in all Central Jails, Open Jails,
Women’s Jails. For the purpose of clarity and distinction, the
Advisory Committee conceived in terms of Sec.77 of the Act and
Rule 462 of the Rules could be referred to as the Jail Level Advisory
Committee (this we say so as now the Rules have been amended and
provides for an Advisory Committee at the State level, to be headed
by a retired Judge of the High Court, as its Chairperson). The Jail
Level Advisory Committee is headed by the Director General of
Prisons, as its Chairperson. The further constitution of the Jail Level
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 9
Advisory Committee, in terms of Rule 463, comprises of the District
Collector of the district concerned, District Sessions Judge of the
District concerned, Commissioner of Police/District Police Chief of
the district concerned, District Probation Officer concerned, three
Non Official members appointed by the Government, Jail
Superintendent of the concerned Prison, etc., as its members.
Though the Advisory Committee is constituted to recommend
premature release of long term convicted prisoners, the Committee is
bestowed with the additional function to consider the leave
applications of prisoners, whose applications were rejected for more
than one occasion, due to adverse report of the Station House Officer
concerned, pointing out the risk of maintaining law and order on the
release of the prisoner concerned. The Advisory Committee has got
power to recommend release of the prisoner in appropriate cases.
The additional responsibilities, as stated above, are contained in Rule
469 of the Rules.
13.Further, Rule 463 (2) of the Rules prescribes that the
abovesaid Jail Level Advisory Committee shall meet at least once in
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 10
six months. Further, Rule 466 (4) stipulates that, the case of a
prisoner, which was not recommended by the Jail Level Advisory
Committee for premature release, shall be considered again only
after the period of one year. From the pleadings, it appears that the
1
st
respondent Director General of Prisons, has stated that, though
the Rules mandate to convene the Jail Level Advisory Committee
once in six months, often, there will not be eligible prisoners, who
become freshly qualified for their cases to be placed before the
Advisory Committee and that hence, the Committee is not convened
once in six months. Further, from the pleadings, it appears that the
restrictions in COVID have also hampered the timely meetings of the
Committee. Further, the term of the Non-official members of the
Advisory Committee had elapsed during COVID and steps could not
be taken by the respondent State Government for re-constitution of
the Jail Level Advisory Committee, by nominating/appointing other
non-official members in lieu of the members, whose term had
expired and that this has also led to the delay in convening timely
meetings of the Committee.
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 11
14.Rule 463 (2) stipulates that the term of the non-official
members in the Advisory Committee will ordinarily be fixed as five
years. Though the term of the non-official members of the Advisory
Committee, constituted as per G.O.(P) No.210/2016/Home dated
03.08.2016, had expired on 02.08.2021, there occurred a delay of
more than six months to re-constitute the Committee, due to the
outbreak of Covid-19 throughout the State, as per the averments in
the affidavits filed by the respondents. Further, from the pleadings,
it appears that, vide S.R.O. No.171/2021 dated 16.02.2021 [G.O.(P)
No.17/2021/Home dated 12.02.2021], amendments have been made
to Rule 469, by incorporating Rules 469 (a) & 469(b), by which a
State Level Advisory Committee has now been constituted for the
purpose of considering and recommending premature release of
prisoners, against the recommendation and decisions of the Jail
Level Advisory Committee, constituted under Sec.77 (1) of the Act,
2010. The above said amendments to the Rules were made for the
constitution of the State Level Advisory Committee, based on the
recommendations of the Jail Reforms Committee, headed by Justice
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 12
Sri.C.N.Ramachandran Nair, former Judge of this Court. The State
Level Advisory Committee consists of a retired High Court Judge as
Chairman, Additional Chief Secretary (Home & Vigilance) as
Member Secretary, Secretary (Social Justice Department), Law
Secretary as members, as well as a person having experience and
expertise in correctional administration as a non-official member.
Further, as per G.O.(Rt) No.623/2021/Home dated 25.02.2021,
Justice Sri.K.K.Denesan, former Judge of this Court, has been
appointed as Chairman of the above State Level Advisory Committee
and an Advocate has been appointed as the non-official member of
the said State Level Committee. Further, we are told by the learned
Additional Advocate General that the meetings of the above said
State Level Advisory Committee are being held regularly and
10 meetings have already been held as on the end of October, 2022.
Further that, the functions of the State Level Advisory Committee is
confined to the premature release of convicted prisoners and that it
has nothing to do with sanctioning of ordinary leave.
15.Now, we would deal with each of the subsisting issues to
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 13
be considered in this writ petition (Criminal).
I.Whether there is any confusion, lack of clarity in the
powers conferred on the District Level Review Committee and the
Jail Level Advisory Committee.
16.In para 10 of the common order dated 07.04.2022,
passed by the Division Bench of this Court in these cases, it has been
prima facie observed that there may be some confusion, as to the
powers conferred on the Jail Level Advisory Committee and the
District Level Review Committee, which are not hierarchically
superior or lower as per the Rules. We have already referred to the
provisions contained in Sec.78(1) which conceives that leave may be
granted to well behaved, eligible, convicted prisoners, with the
objective of their better rehabilitation and re-socialisation, as an
incentive for good behaviour, etc. Sec.78 (2) envisages that all kinds
of parole, remission and leave granted to the prisoners shall in no
case exceed one third of the sentence. The conditions of granting of
leave to prisoners are covered in clauses (a) to (m) of Rule 397 of the
above Rules. It is the specific case of the respondent-State authorities
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 14
that leave is, thus, a correctional tool and one cannot claim leave as a
matter of right and that, it is an individualized aspect, which is
provided to the right person at the right time with the aim of his
reformation and re-socialisation. It is stipulated in Rule 397 (a) that
well behaved prisoners, sentenced to imprisonment of one year and
above and who have actually served out 1/3
rd
of the sentence or two
years, whichever less, are eligible for Ordinary Leave. Rule 397(f) of
the Prison Rules empowers the Director General of Prisons and
Correctional Services to consider the grant of leave to a prisoner, in
the instance of the violation of the conditions of leave, as per Rule
397(h). Every application of the first Ordinary leave have to be
submitted to the Director General of Prisons and Correctional
Services, along with police report, the repercussions of the law and
order situation if the prisoner is released on leave, particularly to his
own safety as well as that of others, the possibility, if any, of the
prisoner absconding, instances of previous misconduct on his part,
during his earlier leave and such other relevant points. The
Superintendent of Police shall give his specific recommendation,
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 15
with due reference to the conduct of the prisoner in jail, his previous
history and details regarding the previous leave that he has already
enjoyed. Along with this, the District Probation Officer shall submit a
detailed report regarding his family and social backgrounds and his
social acceptance during the leave period. Thus, in order to invoke
the power, the authority has to obtain reports from the police and
probation officers. The constitution of the District Level Review
Committee under the chairpersonship of the District Collector
concerned, is contained in Rule 399, about which mention has
already been made hereinabove. From the Rules, it is seen that the
power of the District Level Review Committee is confined to re-
consideration of leave applications, as provided under Rule 399. The
District Level Review Committee has the power to recommend
applications for leave by any convict, who has completed three years
of actual imprisonment and has three adverse police reports. On the
other hand, the Advisory Committee is constituted under Rule 462,
mainly for giving recommendations on premature release of the
prisoners, detained in Central Prisons, Open Prisons, Women's
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 16
Prisons and High Security Prison. The constitution and structure of
the Jail Level District Committee, under the chairpersonship of the
Director General of Prisons, is provided under Rule 463, about which
a reference has already been made hereinabove. Further, Rule 469
confers additional powers on the Jail Level Advisory Committee to
examine leave applications of prisoners with more than one adverse
report of the Police (Station House Officer) on the ground of law and
order issues and who are, otherwise, eligible for leave in all respects
and to submit recommendations to the Government. So, it is seen
that the Jail Level Advisory Committee can consider cases of
prisoners sentenced to imprisonment for one year and above and
who have actually served out 1/3
rd
of the sentence or two years,
whichever is less, and with one or more adverse police reports. From
the above narration, there appears to be a clear division between the
powers and functions of the State Level Advisory Committee, on the
one hand, and the District Level Review Committee, on the other
hand. There could be some overlapping in certain areas and merely
because some of the powers may be concurrent, it may not create
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 17
serious problems and it is for the District Level Review Committee
and the Jail Level Advisory Committee to consider as to whether the
matter comes within the zone of their respective jurisdiction, as
defined within the contours of the abovesaid Act and Rules
concerned.
17.Going by the nature of the prayers in these writ petitions,
we feel that there is no necessity for us to delve into any further
aspects of this matter, as consideration of the application of the
Rules is to be made with reference to a concrete factual situation. The
factual claims in these cases have already been considered and
parole/leave has already been granted by this Court and the said
interim order has been ordered to be treated as regularised. So, we
are of the view that, there is no necessity for us to get in to any
further details in the matter on the above aspects.
II.Whether the District Level Review Committee and the
Jail Level Advisory Committee are bound by the adverse police
reports.
18.This Court has already observed, in the abovesaid
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 18
common order dated 07.04.2022 in these two cases, that the Review
Committee and Advisory Committee are not bound by the adverse
police reports, while exercising powers under Rules 399 & 469 of the
Prison Rules respectively and that there should be a speaking order,
etc. From the provisions of the Rules, it appears that the Prison
Rules do not explicitly prescribe the procedure to be adopted by the
Jail Level Advisory Committee and the District Level Review
Committee, while considering and disposing of applications for
leave. The pleadings in this case, filed by the additional respondent-
Chief Secretary to the Government, has assured that a
comprehensive amendment to the Prison Rules is now under the
active consideration of the State Government and that, taking note of
the various observations made by this Court, the aspect of
incorporating necessary stipulations in the Rules, regarding the
procedure to be followed, will be examined in detail and that the
Rules would be amended. We would also reiterate that it may be
only better, in the fitness of things, that there is clarity in the
procedure to be adopted by the abovesaid committees. Lest, there
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 19
will be frequent allegations of mechanical and non-application of
mind while disposing of cases, which will also lead to initiation of
writ proceedings before this Court by aggrieved prisoners. In this
background, we would refer to para 13 of the common order dated
07.04.2022, passed in these cases, wherein the Division Bench has
observed that, when there are two Committees, constituted to
consider the applications of parole in the event of adverse police
reports, then it is incumbent on the authority rejecting such
applications to immediately place it before either of the Committees,
which also have to be considered in a time bound manner. But that,
though the Committee concerned need not be convened immediately
on such rejection, the Committee concerned should meet at least
once in three months, if there are pending cases of rejection, so that
such pending cases of rejection, made by the original authority, could
be taken up and considered by the competent Committee concerned,
etc. Further, as already held by this Court in the abovesaid common
order, we would also hold that the provision of the Rules did not, in
any manner, stipulate that the Jail Level Advisory Committee or the
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 20
District Level Review Committee should reject the request for
parole/leave, merely on account of adverse police reports. Whereas,
the structure and constitution of the Committees, as per the Rules,
would give a clear legislative intention of the Rule making authority,
that it is precisely the problem of rejection on account of adverse
police report, etc., that is sought to be resolved by constituting such
Committees and by conferring them with such powers. Therefore, it
goes without saying that there is no question of either of these two
Committees rejecting the applications for parole/leave merely on
account of adverse police reports.
19.The Jail Level Advisory Committee and the District Level
Review Committee are not, in any manner, bound by such adverse
police reports or any other adverse reports and it is for them to make
independent and due application of mind and all factual inputs,
including adverse inputs, could be duly reckoned and independent
assessment of the scenario should be made, so that the claims for
parole/leave are justly and fairly considered and decided by these
two Committees.
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 21
20.These Committees should also ensure that the
correctness or otherwise of the adverse police report, etc., may also
be ascertained by calling for reports of higher police authorities, to
have an independent assessment and input of facts.
III.The anomaly in placement of the Principal District Judge
of the District concerned, two places below the Chairperson of the
Jail Level Advisory Committee, in terms of Rule 463 o f the Rules:
21.As already mentioned hereinabove, the Jail Level
Advisory Committee is conceived in terms of Rule 462, mainly for
giving recommendations on premature release of prisoners detained
in various categories of prisons. Rule 463 provides for the
constitution of the Jail Level Advisory Committee and it comprises of
the following members :-
(a)Director General of Prisons and Correctional Services –
Chairman
(b)District Collector – Member
(c)District and Sessions Judge – Member
(d)Commissioner of Police/District Police Chief – Member
(e)District Probation Officer – Member
(f)3 Non-Official members appointed by the Government –
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 22
Members
(g)Superintendent of Prisons – Member Secretary
22.It can thus be seen that the Director General of Prisons
has been made as a Chairperson of the said Committee and the
Principal District Judge of the District concerned has been made a
member at a position, which is two places below the Director
General of Prisons and even the District Collector is placed above the
Principal District Judge.
23.This Court, in the abovesaid common order dated
07.04.2022, has held that the abovesaid placement of the position of
the Principal District Judge, as a member of the above Jail Level
District Committee, in terms of Rule 463, is rather anomalous to say
the least and the same require rectification and remedial action. The
justification that is put forward by the State is that the present new
Rules is only a continuation of the earlier repealed Rules, wherein
also the same hierarchy has been followed. The respondent
authorities do admit that the pay scale of a Principal District Judge is
much higher than that of the post of Director General of Prisons.
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 23
However, the justification put forward by them, in giving a lower
placement position to the Principal District Judge, in terms of
Rule 463, is that, going by the provisions in Ext.R-4(a)
G.O.(Rt).No.8888/2012/GAD dated 19.10.2012, in the matter of
precedence and protocol of various functionaries, the Director
General of Prison is placed at Sl. No. 25, whereas the Principal
District Judge and the District Collector, etc., are placed in Sl. No.27
and that therefore, the higher placements given to the Director
General of Prisons, in terms of Rule 463, is justified.
24.We cannot countenance this argument at all.
25.As rightly held by this Court in the above order dated
07.04.2022, in para No.14 thereof, even for the purposes of pay-
scales, as per the decision of the Apex Court in All India Judges’
Association v. Union of India [2002 (4) SCC 247], it is ordered
that the District Judge at the entry level should be properly equated
with the super time scale of an IAS Officer. This Court also further
held to have noticed the observation in the abovesaid Apex Court
judgment, that such equation is only to avoid distortion in the
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 24
pay-scale of the judicial officers vis-a-vis the executive, despite
earlier judgments having clearly said that there should be no
equation or parity between the judicial service and the executive
service. Further, the respondents also concede in their pleadings
that the pay-scale of a District Judge is higher than that of the
Director General of Prisons. That apart, the Apex Court pointed out
the necessity for parity between judiciary and political executive and
not between judiciary and administrative executive, as can be seen
from the decision of the Apex Court in All India Judges'
Association (II) v. Union of India, [(1993) 4 SCC 288, para 9],
which reads as follows:-
“9.………………..As pointed out earlier, the parity in status is no
longer between the judiciary and the administrative executive but
between the judiciary and the political executive. Under the
Constitution, the judiciary is above the administrative executive and
any attempt to place it on a par with the administrative executive has
to be discouraged. The failure to grasp this simple truth is responsible
for the contention that the service conditions of the judiciary must be
comparable to those of the administrative executive and any
amelioration in the service conditions of the former must necessarily
lead to the comparable improvement in the service conditions of the
latter.”
(emphasis supplied)
26.These aspects are also referred to in a recent decision of
the Division Bench of this Court in para 13 of the case in State of
Kerala & Anr. v. P. Muraleedharan [2021 (3) KLT 159].
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 25
27.The order of precedence, as per the protocol norms of the
State Government, are not, in any manner, relevant for the present
purpose, inasmuch as, the executive order, at Anx.R4(a), has been
made by the Government, unilaterally. Matters of this nature, as in
the composition of a committee, where the Government feels that the
participation of a high level judicial functionary is required, must
have been only after due consultation with the High Court, which is
the sovereign head of the State Judiciary.
28.New perspectives have emerged, in these matters,
especially after the All India Judges' Association (II) case
supra, referred to herein above. The respondent does not have any
case that the above placement of the Principal District Judge, in
terms of Rule 463, is after due consultation and after getting the
concurrence of the High Court on the administrative side.
29.The respondent-State authorities themselves insist for
the inclusion and participation of the Principal District Judge as a
key functionary in the above decision making process.
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 26
30.That being so, the placement of the Principal District
Judge in the said committee, cannot be in a manner so as to affect
the due parity of judicial functionaries, which are on the basis of legal
principles well established by a series of rulings of the Apex Court.
Such unilateral action by the Executive Officers of the State will be in
derogation of the well established constitutional principles of
separation of powers as well as the independence and autonomy of
the judiciary.
31.That apart, even in Anx.R4 (a), the Principal District
Judge is given a precedence over the District Collector. So, one fails
to understand as to how the Principal District Judge could be placed
even below the District Collector, in terms of Rule 463.
32.Sri.Asok M. Cherian, learned Additional Advocate
General, appearing for the respondents, would submit, on the basis
of instructions, that comprehensive amendments are now made and
the observations made by this Court would certainly be effectively
considered, so that amendments are duly made in the Rules to
correct any anomalies. The said submissions of the respondent
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 27
authorities are recorded.
33.However, we feel that, until such amendments are made,
remedial actions should be immediately done. One key aspect of the
matter, pointed out by the learned Additional Advocate General, is
that the Director General of Prisons is a state wide functionary
having state wide jurisdiction, whereas the Principal District Judge
of the District concerned, will be operating only within the limits of
the District concerned.
34.We fully endorse and approve the observations made by
this Court in the common order dated 07.04.2022 in these two cases,
more particularly, para Nos. 14 & 15 thereof.
35.Accordingly, pending the amendment to the Rules, it is
ordered that the Director General of Prisons and the Principal
District Judge of the District concerned should be Co-Chairpersons
of the said Jail Level Advisory Committee, constituted in terms of
Rule 463. The Director General of Prisons could be designated as the
Co-Chairperson (Executive). So also, the Principal District Judge
could be designated as the Co-Chairperson (Judicial) of the said
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 28
Committee and the Co-Chairpersons of the committee will jointly
preside over the meetings and proceedings of the Committee. Since
the Director General of Prisons is a State-wide functionary, having
state wide jurisdiction, and he is in charge of Administrative Affairs,
the said functionary could take care of the responsibilities of the
administrative processing of the various applications and request
and for the timely convening of the meeting.
36.Further, from the pleadings on record, it appears that
quite a few matters, which are decided by the Director General of
Prisons, which is in his individual capacity, will also come up before
the Jail Level Advisory Committee and he also takes part in the
decision making process, which, however, is stated to be on a
collective basis.
37.We find an anomaly in this regard, inasmuch as the
elementary principles of natural justice may require that in such
cases, he may not be a judge of his own cause and this flows from the
elementary principles of avoidance of bias. The decision making
process should not only be fair and unbiased but should also appear
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 29
to be so. Certainly, the Director General of Prisons can give his
factual inputs regarding such a case, before the Committee. But in
the case where a decision is taken by him and which is the subject
matter of consideration by the said Jail Level Advisory Committee,
then the Director General of Prisons should recuse himself from
further actual decision making process and in such a case, the
Principal District Judge should be the sole Chairperson of the said
committee, who should preside over the meeting, after duly taking
note of the various inputs, including the inputs that may be given by
the Director General of Prisons, who was a decision maker of the
impugned decision.
38.Pending amendments to the Rules, the 6
th
respondent-
competent authority of the State Government will ensure that
executive orders, by way of Government Orders, may be issued,
making it clear that the Director General of Prisons and the Principal
District Judge, would be the Co-Chairpersons of the abovesaid
committee. The former being the Co-Chairperson (Executive) and
the latter being the Co-Chairperson (Judicial). Further, where the
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 30
matter that is being examined by the Committee is one that is to be
taken by the Director General of Prisons, then the Government Order
should specify about the recusal of the former, so that the decision
making process is taken by the rest of the members of the
Committee, which will be presided over solely by the Principal
District Judge, as mentioned herein above. We hope and trust that
the Government will put in place amendments to the above said
Rules, without any further delay. Pending the formal issuance of the
amendment notification of the Rules, executive orders, as above,
should be issued without any further delay, to avoid any further
confusion.
39.No other orders and directions are called for on the
abovesaid aspect.
(2)The necessity for regular periodicity of meetings of the
Committees and the primacy of the duly constituted State Level
Advisory Committee, headed by a former High Court Judge:
40.We have already placed on record the submissions in the
pleadings of the respondents, more particularly, that in the affidavit
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 31
sworn to by the 6
th
respondent-Chief Secretary that the Rules have
been recently amended to incorporate Rule 469(a) & Rule 469(b), to
duly constitute a State Level Advisory Committee, presided over by a
former Judge of the High Court, in which the Additional Chief
Secretary (Home), Social Justice Secretary and the Law Secretary are
members.
41.The specific responsibility now assigned to the duly
constituted State Level Committee is for recommending premature
release of prisoners against the recommendations and decisions of
the Jail Advisory Committee, constituted under Sec.77(1) of the Act.
These amendments have been carried out on the recommendations
of the Jail Reforms Committee, headed by Justice
Sri.C.N.Ramachandran Nair, former Judge of this Court. Now, the
Government has already issued orders appointing Justice
Sri.K.K.Denesan, former Judge of this Court, as the Chairperson of
the above said State Level Advisory Committee. From the pleadings
on record, we note that the Rules do not explicitly provide for any
fixed periodicity for the meetings of the District Level Review
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 32
Committee, whereas the Jail Level Advisory Committee has to meet
at least once in six months. We also note that, many a times, the
timelines have not been observed for various reasons. One such
ground put forward before us is that there may not be sufficient cases
for consideration, in view of certain restrictive norms, that after a
plea is rejected, its re-consideration will have to be at least for a
further period of one year and the details of the same have already
been mentioned herein above. But, still, from the pleadings, we note
that there has been delays and the delays during the Covid period
may be otherwise justifiable.
42.The learned Additional Advocate General has assured
that these lacunae in the Rules would also receive due attention of
the Government, so that appropriate amendments could be carried
out in the Rules, providing for explicit provisions in that regard.
43.After hearing both sides, we are of the view that all efforts
should be taken to ensure that regular meetings of the District Level
Review Committee and the Jail Level Advisory Committee are made,
so that, if requests are pending, then, these Committees can meet at
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 33
least once in three months, if that is feasible.
44.Pending amendment to the Rules, the 6
th
respondent-
State Government may issue executive orders, so that guidelines in
that regard are issued to those authorities.
45.So also, provisions may be made in the Rules, to ensure
that supervisory primacy is given to the newly constituted State Level
Advisory Committee.
46.We note that the said newly constituted State Level
Committee consists of senior officers of the Government at the State
level.
47.Therefore, it is only proper that the Chairperson of the
said Committee can be given more responsibilities, so that senior
officers, like the Home Secretary, Social Justice Secretary, Law
Secretary, etc., need not regularly meet as a Committee, to deal with
matters which may require immediate supervisory intervention.
48.Accordingly, it is ordered that steps may be taken to
ensure that the Chairperson of the State Level Advisory Committee is
entrusted with the duty and responsibility to have a general oversight
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 34
and supervision of the functioning of both the District Level Review
Committee and the Jail Level Advisory Committee, so that bottle
necks are resolved and grievances are resolved without any further
delay and those Committees also meet whenever necessary,
especially, if requests and applications are pending consideration.
49.To ensure as to whether or not such requests and
applications are pending, the services of the Chairperson of the State
Level Advisory Committee, could be appropriately utilized, so that
avoidable delay could be curtailed to the maximum extent possible
and grievances are also resolved, in a timely manner, etc.
50.Pending amendment of the Rules, the 6
th
respondent-
State Government may issue necessary executive orders, so that
these directions are put in place and implemented without any
further delay.
51.We hope and trust that the formal amendment of the
Rules could be carried out, after due consideration, without much
delay.
52.During the course of the hearing of this case, we also
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 35
observed that the State may, seriously consider whether some more
additional responsibilities for resolving various issues faced by the
prison inmates could be addressed to a functionary like the
Chairperson of the State Level Advisory Committee, who is a former
High Court Judge, so that the services of such a high functionary
could be appropriately utilized.
53.This aspect of the matter should also immediately reach
the serious attention of the State Government and necessary advice
to the learned Advocate General/learned Additional Advocate
General may also be sought.
54.The considered views of the Chairperson of the State
Level Advisory Committee may also be sought in this regard. The
opportunity can certainly be used by the State authorities for
seriously enforcing action for necessary resolution of various
problems and grievances faced by prison inmates.
55.We hope and trust that these observations made by us
would be taken with all seriousness, so that, the matters can be taken
to a logical conclusion, which would only for effectuate public good.
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 36
56. Before parting with these cases, we would remind
ourselves as well as the respondent State authorities the words of
Constitutional Compassion rendered by the Hon'ble Justice
V.R.Krishna Iyer, in the celebrated case, Sunil Batra v. Delhi
Admn. [(1978) 4 SCC 494 : AIR 1978 SC 1675], which reads as
follows:
“52......For what is punitively outrageous, scandalizingly unusual
or cruel and rehabilitatively counter-productive, is unarguably
unreasonable and arbitrary and is shot down by Articles 14 and 19
and if inflicted with procedural unfairness, falls foul of Article 21.
Part III of the Constitution does not part company with the prisoner
at the gates, and judicial oversight protects the prisoner's shrunken
fundamental rights, if flouted, frowned upon or frozen by the prison
authority. Is a person under death sentence or undertrial
unilaterally dubbed dangerous liable to suffer extra torment too
deep for tears? Emphatically no, lest social justice, dignity of the
individual, equality before the law, procedure established by law
and the seven lamps of freedom (Article 19) become chimerical
constitutional claptrap. Judges, even within a prison setting, are
the real, though restricted, ombudsmen empowered to proscribe
and prescribe, humanize and civilize the life-style within the
concerns. The operation of Articles 14, 19 and 21 may be pared
down for a prisoner but not puffed out altogether......”
57. No other orders and directions are called for.
58. The Secretary to the office of the Advocate General will
forward copies of this judgment to the 1
st
respondent (Director
General of Prisons), 6
th
respondent (Chief Secretary to Government),
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 37
Additional Chief Secretary to Government (Home), as well as the
Chairperson of the State Level Advisory Committee, for necessary
information and further follow-up.
With these observations and directions, the above writ petition
(criminal) will stand disposed of.
Sd/-
ALEXANDER THOMAS,
JUDGE
Sd/-
C.S. SUDHA,
JUDGE
Skk//02092022
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 38
APPENDIX OF WP(CRL.) 236/2022
PETITIONER’S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN SC NO.
507/2013 OF ADDITIONAL SESSIONS COURT-
IV, THRISSUR DATED 22.02.2018.
EXHIBIT P2 A TRUE COPY OF THE APPLICATION UNDER RTI
ACT SUBMITTED BY THE PETITIONER.
EXHIBIT P3 A TRUE COPY OF THE APPLICATION FOR
PAROLE DATED 12.11.2021 SUBMITTED BY THE
PETITIONER.
EXHIBIT P4 A TRUE COPY OF THE REPLY ISSUED BY THE
1ST RESPONDENT.
EXHIBIT P5 THE REPLY TO THE RTI APPLICATION BY THE
5TH RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE ORDER NO. WP2-
616/2019/PRHQ, DATED 05.02.2019 FROM THE
OFFICE OF THE 1ST RESPONDENT.
RESPONDENTS’ ANNEXURES: NIL
2023/KER/14849
W.P. (Crl.) No.188 of 2022
& W.P. (Crl.) No.236 of 2022 39
APPENDIX OF WP(CRL.) 188/2022
PETITIONER’S EXHIBITS:
EXHIBIT P1 PHOTOCOPY OF THE REPLY ISSUED BY THE 2ND
RESPONDENT, ON 30.11.2021.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED
13.01.2022 IN WP(CRL.)NO.9 OF 2022 OF
THIS HON'BLE COURT.
EXHIBIT P3 COPY OF THE APPEAL DATED 28.01.2022 SENT
TO THE SECRETARY OF THE DEPARTMENT OF
HOME GOVERNMENT.
EXHIBIT P4 COPY OF THE RECEIPT OF ACKNOWLEDGEMENT
OF THE APPEAL, DATED 31.01.2022.
RESPONDENTS’ ANNEXURES:
ANNEXURE R2-1 STATE PROTOCOL OF ORDER OF PRECEDENCE
ISSUED BY GOVERNMENT OF KERALA VIDE
GO(RT)NO.8888/2012/GAD DTD. 19.10.2012
AND GO(MS)NO.500/2013/GAD DTD.
17.01.2013
ANNEXURE R2-2 TRUE COPY OF THE FILES OF THE JAIL
ADVISORY COMMITTEE AND REVIEW COMMITTEE
EXHIBIT R4(A) TRUE COPY OF G.O.(RT.) NO.8888/2012/GAD
DATED 19-10-2012
EXHIBIT R4(B) TRUE COPY OF GO(P) NO.17/2021/HOME DATED
12-02-2021
2023/KER/14849
Legal Notes
Add a Note....