In S.C.No.125 of 1996 on the file of the V Additional Sessions Court, Ernakulam the petitioner was convicted of the offences under Sections 302 and 392 IPC and sentenced to undergo imprisonment for life for the first offence and rigorous imprisonment for five years for the other offence. While he was undergoing the imprisonment in Central Prison at Thiruvananthapuram he was granted parole for seven days from 5.9.1997 in connection with the death of his mother. But he did not return to the prison. On 9.2.2011 he was arrested at Kumili in Idukki district and lodged in Central Prison, Thrivananthapuram, from where he was later shifted to Central Prison, Viyyur. His wife filed Writ Petition No.34699 of 2015 for a direction to the respondent State of Kerala to grant him parole. The Writ Petition was disposed of directing the petitioner to approach the Government for regularization of his overstay and observing that in case the Government allows it the petitioner's application for parole shall be considered by the third respondent Superintendent of the prison in accordance with law. Accordingly, the petitioner submitted an application for regularization period of overstay and another application for parole. By Exts P2 and P4 orders the Government rejected his applications for regularisation of the overstay and for parole respectively. The Government took the view that he absconded for more than 13 years and he is not eligible for any leave. This is challenged in this Writ Petition.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

3. The first question that arises for consideration is whether the petitioner merely overstayed or he absconded. A person is said to abscond when he conceals himself, which may be in his own house or elsewhere. The period during which he made himself scarces is relevant. In this case the petitioner was granted parole for seven days in connection with the death of his mother. Thereafter, he did not return to the prison. After 13 years 5 months and 4 days he was arrested by the police and lodged in the prison again. This long period itself is sufficient to hold that he was absconding. It is not a case of overstay.

4. Sub rules 5 and 6 of Rule 400 of Kerala Prisons and Corrections Services (Management) Rules 2014 come up for consideration since the learned counsel submits that the provision applicable is Sub rule 5 while the learned senior Govt. Pleader maintains that the provision applicable is Sub rule 6. A free English translation of the Sub rules, which are in Malayalam is given below:

Sub rule 5 :

A convict who fails to return to prison on the specified date after the expiry of the period of leave is not entitled to leave again for one year from the date of his return to the prison or till regularisation of his overstay.

Sub rule 6 :

A person who absconds during the period of leave is not entitled to any kind of leave unless the period of his overstay is regularised by the Government.

The two rules make a distinction between overstay and absconding, which is clear from the specific mention of absconding in Sub rule 6. So to a person who absconds during the period of leave, it is Sub rule 6 and not Sub rule 5 that is applicable.

5. The question that remains to be considered is whether the Government was justified in passing Exts. P2 and P4 orders.

6. By Ext. P4 order the Government rejected the petitioner's application for parole on the ground that it does not even deserve to be considered. The application for parole could have been entertained only if the period of his overstay was regularised by the government. That was not done. So there is nothing wrong in the Government's passing Ext P4 order.

7. By Ext P2 order the petitioner's application for regularisation of overstay was rejected. The reason stated is that Sub rule 6 of Rule 400 disentitles a prisoner who was absconding from getting any kind of leave. Patently this is wrong. Sub Rule 6 operates in a different field