Prison Authorities Can't Withhold Govt Sanctioned Ordinary Leave Granted To Prisoner Citing Conduct, Subsequent Events: Kerala High Court

“Therefore, the circumstances till the date of the said recommendation alone are noticed for the grant of leave. The said leave, once granted, by the Government, cannot be interfered with by the Superintendent of Prisons, that too based on a subsequent event. If such orders of the Government are permitted to be interfered with by subordinate officers, chances of misuse and abuse will occur.” stated Justice Bechu Kurian Thomas

The petitioner is the wife of a convict who is lodged in Central Prison and Correctional Home, Thiruvananthapuram. The petitioner approached the High Court since the prison authorities had revoked the leave granted by the government to her husband.

The Counsel for the petitioner submitted that the Advisory Committee of the Central Prison recommended ordinary leave to 14 prisoners in June 2023. Pursuant to this recommendation, the Government granted fifteen days of ordinary leave to 14 prisoners including the petitioner's husband.

It was submitted that the leave granted to the petitioner's husband was being withheld by the prison authorities since some false cases of using a mobile phone were alleged against him after the leave was granted by the government.

The Superintendent of Prisons filed a counter affidavit stating that while the leave of the petitioner's husband was pending consideration before the government, a mobile phone was seized from the block of the prison where he was lodged and the case was registered. It was also stated that he had beaten a co-prisoner and smuggled contraband into the prison and disciplinary proceedings were initiated and punishment was imposed on him.

The counter affidavit also stated that leave could be granted to well-behaved and eligible prisoners for better rehabilitation and to those who have completed 1/3rd of their total sentence or two years of actual sentence, whichever is less.

The Court found that the petitioner's husband had undergone imprisonment for more than three years and leave was not granted even once. It stated that the government had granted him leave, which had become final.

In the facts of the case, the Court stated that the leave once granted by the government, cannot be revoked by the prison authorities citing subsequent events or conduct.

“Since the Government Order granting leave to the petitioner's husband has not been varied or revoked, the Superintendent of Prisons is also, as an officer under the Government, bound to abide by the same, and he cannot vary or revoke the said order. The circumstances that occurred after the recommendation cannot be considered at this stage, as the same could be considered only for the periods of leave eligibility. If such an interpretation is not adopted, each time when a convict becomes eligible for leave, and the Government issues an order granting leave, the same could be misused or exploited by the prison authorities”, stated the Court.

The Court added that Rule 412 of the Kerala Prisons and Correctional Services Management Rules, 2014 only permits prison authorities to recall a convict on leave if he commits any immoral activities during his leave.

Accordingly, the Court allowed the writ petition and directed that the petitioner's husband be released on ordinary leave for fifteen days.

Counsel for Petitioner: Advocates M.P.Madhavankutty, Mathew Devassi, Ananthakrishnan A. Kartha

Counsel for Respondents: Public Prosecutor P Narayanan

Citation: 2024 LiveLaw (Ker) 157

Case title: Shameera S v Secretary To Government

Case number: WP(CRL.) NO. 125 OF 2024

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