IMPORTANT POINT
The Superintendent of Prisons cannot revoke a Government order granting leave based on subsequent events, as the order must be implemented as per prior recommendations.

JUDGMENT :

Bechu Kurian Thomas, J.

1. Petitioner is the wife of Sri. Hussain Abbas, who is convict No. 2930 presently lodged at the Central Prison and Correctional Home, Thiruvananthapuram. Petitioner’s husband was convicted for life imprisonment in S.C. No. 1530/2012 on the files of the Additional Sessions Court-VI Thiruvananthapuram for the offences, including Section 302 of the Indian Penal Code, 1860. An appeal has been filed as Crl.Appeal No. 1376/2018 which is pending consideration. Through this Writ Petition under Article 226 of the Constitution of India, petitioner seeks a direction to release her husband on leave, as directed in Ext.P1 order of the Government.

2. According to the petitioner, the Advisory Committee of the Central Prison recommended ordinary leave to 14 prisoners on 29.06.2023. Pursuant to the above recommendation, the Government, by order dated 12.12.2023, granted 15 days of ordinary leave to 14 prisoners, including the petitioner’s husband. Despite the direction of the Government, petitioner’s husband has not been given leave. When information was sought under the Right to Information Act, 2005, it was informed on 09.01.2024 that petitioner’s husband had never been given any leave, and also that his canteen and telephone facilities have not been kept on hold. While so, petitioner’s husband himself filed an application on 01.01.2024 seeking to grant ordinary leave to him. It was also mentioned that some false cases have been foisted against him for allegedly using a mobile phone, and on that basis the benefit of leave granted to him was being withheld or denied.

3. A counter affidavit has been filed by the Superintendent of Prisons wherein it is stated that the petitioner’s husband was admitted into the prison on 13.08.2018 and he was released on interim bail as directed by the court on five occasions and that he has undergone 4 years, 11 months and 22 days of imprisonment as on 17.02.2024. The counter affidavit also mentioned that leave can be granted only 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. It is further stated that, though the probation officer had recommended granting ordinary leave to the convict, the police reports were never in favour of granting ordinary leave. It was further stated that on earlier occasions, the Prison Advisory Board had not recommended the grant of leave to the petitioner’s husband, but on 29.06.2023, the said Board recommended his case along with 13 others. While the recommendation was pending consideration before the Government, on 27.08.2023, a mobile phone was siezed from Block No. 1 of the prison, and a case was registered, in which investigation revealed that a group of prisoners, including petitioner’s husband, were involved in connection with the said crime. The Deputy Prison Officer was also placed under suspension and disciplinary proceedings have been initiated against him and he was even arrested and remanded to judicial custody for his involvement in the crime. It is also stated that disciplinary proceedings were initiated against petitioner’s husband earlier, and a prison punishment was imposed on him on 11.11.2021 as he had beaten a co-prisoner and smuggled contraband articles to the prison. It was also stated that due to the commission of an offence, the petitioner’s husband cannot be granted the leave, as ordered in Ext.P1.

4. I have heard Sri. M.P. Madhavankutty, the learned counsel for the petitioner, as well as Sri. P. Narayanan, the learned Public Prosecutor.

5. Petitioner’s husband has undergone imprisonment for a period of more than four years and has never been granted leave. It was only by Ext.P1 that he was directed to be given ordinary leave for a period of 15 days. The said order of the Government has not yet been interfered with by any authority. The order granting leave to the petitioner’s husband was based on a