RAJU Vs. STATE OF KERALA AND ORS

JUDGEMENT

(1.) 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admit petitioner in the Open prison, declare that Rule 3A of the Kerala Prisons Rules, 1958 (for short, "the Rules") is superseded by the provisions of Kerala Prisons and Correctional Services (Management) Act, 2010 and grant such other reliefs.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.

(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 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.