A Kerala High Court Bench of Justice Bechu Kurian Thomas has allowed ordinary leave to a life convict by observing that there was an attempt to purposely deny leave to the petitioner by resorting to unfair procedure.

Counsel V Vijitha and Counsel R Rohith appeared for the petitioner, while Public Prosecutor Sreeja V, among others, appeared for the Respondents.

In this case, the petitioner was a life convict who had been released on ordinary leave on multiple occasions. However, he was then purposely injured by another convict (Sri. Nisham) and claimed that after he complained against him, he faced a hostile attitude inside the prison since Nisham is extremely politically and financially influential.

The Court took note of the fact that the petitioner had been granted leave regularly from 2015 onwards, and no complaint of any nature had been raised during the period while he was on leave or parole.

It was also noted that no crimes were pending against the petitioner after he came into prison. By extension of the same, the Court took the considered view that "Though the police report from the Inspector of Nedumangad Police Station mentions that there would be a law and order situation if petitioner is granted ordinary leave, except for a bald conclusion, no reasons have been stated to deny leave to the petitioner. The report also fails to stipulate how the law and order situation will be affected".

The Court further noted that the Probationary Officer's report was in favour of the petitioner.

It was then observed from a correspondence file made available by the public prosecutor that there was an allegation about an individual smoking beedi. He allegedly informed that it was supplied by the petitioner. The file revealed that an enquiry was purported to have been conducted. The petitioner denied the allegation and even stated that the case filed on his behalf for obtaining parole was due in Court the next day and that the allegation against him was pursuant to some conspiracy to prevent his parole.

Based on the alleged enquiry, an order imposing a penalty deducting 30 days of remission was imposed on the petitioner. The Court noted that the file did not reveal that a copy of the report was ever served on the petitioner or that he was put to notice of the proposed punishment or even given an opportunity to defend the case against him.

Consequently, the Court observed that the violation of the principles of natural justice was glaringly evident in the proceedings.

Subsequently, the Court observed that "If the conditions for leave as prescribed in the statute are satisfied, the discretion to grant leave must be exercised in his favour as it will partake the character of a right itself. The concept of discretion has been explained to be something to be done according to the rules of reason and justice and not according to whims or fancies. Exercise of discretion cannot be arbitrary, fanciful or vague, but it must be legal and regular and must be exercised within the limits permissible by law. Discretion can never be a shield for acting in an arbitrary, capricious or whimsical manner. What is expected of an authority vested with discretion are actions that are fair, reasonable and judicious. Therefore when an authority, vested with the power of discretion acts in an unreasonable manner, contrary to fairness, capriciously, whimsically and even contrary to statutory prescriptions, this Court cannot remain a mute spectator. When a writ court is satisfied that the right of its citizens, including that of a convict, has been violated in circumstances that are extraordinary, this Court can render assistance to the citizens to redress their grievances."

Holding that it cannot issue a writ of mandamus, the Court proceeded to observe that "In view of the peculiar circumstances, as evident from the various instances narrated earlier, this court is satisfied that there has been an attempt to purposely deny leave to the petitioner by resorting to an unfair procedure. The action is, no doubt, to create an impression that petitioner is not a well-behaved person and in turn to deny leave to him. The procedure adopted is illegal. Further, the alleged offence does not fall within the category of offences delineated in Rule 397(iii) of the Rules to deny ordinary leave to the convict. Petitioner cannot thus be denied ordinary leave in the peculiar circumstances and he is entitled to such leave with a rider that he shall not move out of Thiruvananthapuram District."

Cause Title: Noushad A v. State of Kerala & Ors.

Click here to read/download the Judgment