SANDHYA Vs. SECRETARY

JUDGEMENT

(1.) We are called upon to answer the following intriguing questions in this writ petition:-

(2.) The Writ Petitioner challenges non-grant of parole/leave to her husband by name 'Seethappan', a convicted prisoner undergoing sentence in the Central Prison, Viyyur pursuant to the judgment of conviction in S.C.No.246/2014 on the files of the first Additional Sessions Court, Ernakulam, inter alia for offence under Sec. 302 of the Indian Penal Code. Leave/Parole is refused for reason of adverse police report, albeit probation report being favourable.

(3.) Petitioner relies on S.78 of the Prisons Act and Rule 397 of the Prisons Rules. The petitioner maintains that her husband is entitled to be released on ordinary leave for a period of 60 days in a calendar year under Rule 397. A recent judgment of a learned Single Judge of this Court in Noushad.A v. State of Kerala [2023 (3) KLT 24], was strongly relied upon to contend that leave in terms of Rule 397 is a right in itself and upon satisfaction of the conditions stipulated in Rule 397, the discretion to grant leave must be exercised in favour of the convict, which right, however, is negated in the case of petitioner's husband, on an apparently jejune ground of threat to peace and tranquility. Per contra, learned Public Prosecutor submitted that, fulfillment of conditions in Rule 397 only enables the convict to seek leave, the grant of which would essentially be discretionary, subject to such other parameters stipulated in Rule 397, as also, Sec. 78 of the Prisons Act. This impels us to address initially, the second question as to whether Rule 397 confers an absolute or vested right of leave; or merely stipulates the eligibility criteria for grant of leave in terms of S.78 of the Prison Rules, for which, a scan of the relevant Rules and the binding precedents are necessary.