Point of Law: As per Rule 397 of Kerala Prisons and Correctional Services (Management) Rules, 2014 leave can be granted only to well-behaved, eligible and convicted prisoners.

JUDGMENT :

These two writ petitions are filed by brothers seeking similar reliefs. W.P.(Crl.) No.74 of 2023 is filed by Sri.Noushad seeking grant of ordinary leave for his brother, who is convict No.7575, lodged in the Central Prison, Thiruvananthapuram, while W.P(Crl.) No.246 of 2023 is filed by the said convict himself, seeking grant of ordinary leave to him and a declaration that he is entitled to parole

2. The facts stated in the second writ petition, i.e., W.P.(Crl.) No.246 of 2023 would suffice and is briefly mentioned as follows: Petitioner is life convict No.7575 who has been released on ordinary leave on 16 occasions earlier and had never violated any of the conditions of leave.

2.1. According to the petitioner, at the instance of one Sri.Muhammed Nisham, who is convict No.2322 (hereinafter referred to as ‘Nisham’ for short), he is being denied leave. After petitioner was purposely injured at the behest of Sri. Nisham, the learned Sessions Judge intervened and directed a crime to be registered. Thereafter, crime No.858 of 2022 was registered under sections 324 and 34 of the Indian Penal Code, 1860 (for short ‘IPC’).

2.2. Petitioner alleged that after he complained about Nisham, things started taking an ugly turn. Though a crime was registered against the petitioner at the behest of Nisham, both were referred as false. Despite such a reference, the Jail Superintendent refused to grant leave to the petitioner. Until petitioner raised a complaint against Nisham, there was never any adverse report or remark against him and he was always released on leave as per law. However, after the complaint was raised, petitioner faced a hostile attitude inside the prison since Nisham is extremely influential, both politically and financially.

2.3. When petitioner's brother filed W.P.(Crl.) No.74 of 2023, this Court had, on 13.02.2023, taking note of the contentions advanced, directed the Superintendent of the Jail to file a counter affidavit. Interestingly, thereafter, an application was filed by the wife of Nisham to implead her in the writ petition and raised an objection about the maintainability of the writ petition filed by the brother of the petitioner. Thus the convict himself preferred W.P.(Crl.) No.246 of 2023.

2.4. According to the petitioner, on the date when a counter affidavit was directed to be filed in W.P.(Crl.) No.74 of 2023, the third respondent, by a malafide act, initiated a false proceeding for an incident alleged to have occurred on 11.02.2023 and hastily issued an order cancelling 30 days remission earned by the petitioner and that he came to know about the order and the disciplinary proceedings only when a statement was filed before this Court. Curiously, the allegation is that petitioner supplied a beedi to another convict by the name of Venugopal. Petitioner alleges that he is being subjected to severe atrocities, arbitrary treatment and prejudicial proceedings only because of the influence wielded by Nisham. Petitioner asserts that he has a legal right to be considered for ordinary leave, and he is being victimised inside the prison.

3. In the counter affidavits filed separately by the third and sixth respondents it is admitted that the crimes registered against the petitioner and Nisham were both referred as false after investigation. It is further stated that on 11.02.2023, a convict was found smoking beedi and after an enquiry petitioner was found to have supplied the beedis. Hence a punishment of forfeiture of 30 days remission was imposed as per proceedings dated 13.02.2023 under section 82D of Kerala Prisons and Correctional Services (Management) Act, 2010 (for short ‘the Act’). It is further alleged that as per Rule 397 of the Kerala Prisons and Correctional Services (Management) Rules, 2014 (for short 'the Rules'), leave can be granted only to well-behaved, eligible and convicted prisoners. In view of the punishment imposed, petitioner cannot be treated as a well-behaved prisoner for considering him to be