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2023 Supreme(Online)(KER) 29605
HIGH COURT OF KERALA
BECHU KURIAN THOMAS, J
KAMARUNEESA – Appellant
Versus
THE SECRETARY – Respondent
WP(Crl.) 458 2023
P.MOHAMED SABAH, LIBIN STANLEY, SAIPOOJA SADIK, ISMAYIL R.GAYATHRI, M.MAHIN HAMZA, ALWIN JOSEPH
Emergency leave provisions can be applied flexibly in cases of terminal illness, allowing for practical considerations over procedural formalities.
Headnote:
Emergency - Parole - Kerala Prisons and Correctional Services (Management) Rules 2014 - Rule 400, Rule 403 - Court granted emergency leave considering the medical condition of the convict's mother.
Fact of the Case:
The petitioner, wife of a convict sentenced for rape, sought emergency parole for her husband due to his mother’s terminal illness, citing inability to secure a required medical certificate.
Finding of the Court:
After assessing the medical condition of the convict's mother, the court found sufficient reason to grant emergency leave despite the absence of a government-issued medical certificate.
Issues: Whether an emergency leave can be granted under circumstances where the required medical certificate was not obtainable due to unforeseen circumstances.
Ratio Decidendi: Emergency leave can be granted by considering the emergent situation without strict adherence to the requirement of a government medical certificate if satisfactory evidence is provided.
Final Decision: Emergency leave granted to the convict without insisting on a Government-issued medical certificate.
JUDGMENT
Petitioner is the wife of one Sri.Muhammed, who is convict No.48, housed at High Security Prison, Viyyur. He has been sentenced to imprisonment for five years in S.C.No.180/2009 on the files of the Additional District and Sessions Court (ADHOC – III), North Paravur. Petitioner was convicted for the offence under Section 376 of the Indian Penal Code, 1860 and is alleged to have committed rape on a mentally challenged victim.
2. Petitioner alleges that the mother of the convict is seriously ill and is bedridden due to various illnesses including cancer and that an emergency parole is sought for to enable the convict to be by the side of the mother.
3. As per Rule 400 of the Kerala Prisons and Correctional Services (Management) Rules 2014 (hereinafter referred to as the ‘Rules’), a person, convicted for the offence of rape is also eligible for emergency leave. However, as per Rule 403, when emergency leave is sought for, on the basis of terminal illness of a relative, a certificate from a Government Civil Surgeon must accompany the application.
4. Petitioner alleged that, due to circumstances beyond her control, she was unable to procure a certificate from the Civil Surgeon, but asserted that the mother-in-law of the petitioner is terminally ill.
5. Based on the above submissions, on 14.07.2023, this Court, directed the 4th respondent, S.H.O to assess the medical condition of petitioner’s mother-in-law with the assistance of a Medical OfÏcer attached to the Taluk/District Hospital or any other Government Hospital and submit a report to this Court at the earliest.
6. Pursuant to the said direction, the learned Government Pleader has submitted a copy of the report dated 07.08.2023, filed by the 4th respondent, along with a Medical Certificate issued by the Medical OfÏcer, Dr.Sheeja P.Krishnan, of Aluva District Hospital, which has been marked as Ext.X1 by a separate order today. As per the certificate, it is seen that the mother-in-law of the petitioner, Mrs.Beepathu Moideen, aged 85 years, is suffering from coronary artery disease, COPD and basal cell carcinoma – Residual Tumur, Excision done on 03.08.2023.
7. The 4th respondent has reported that the Doctor, who treated the mother-in-law of the petitioner, had stated that the patient is laid up and is seriously ill. It is also mentioned in the report of the 4th respondent that, even the Medical OfÏcer attached to the Aluva District Hospital had stated that the patient is seriously ill.
8. On a perusal of the Medical Certificate attached to the report of the 4th respondent and on a perusal of the report of the S.H.O, I am satisfied that a situation has arisen, which warrants, the grant of emergency leave to the petitioner’s husband, convict No.48 at High Security Prison, Viyyur.
9. Therefore, In view of the peculiar circumstances arising in this case, and the emergent situation pointed out, there will be a direction to the 3rd respondent to grant emergency leave to the petitioner’s husband by issuing orders on Ext.P4 application, within 48 hours from the receipt of this judgment, without insisting upon the Medical certificate as contemplated under Rule 403 of Rules, treating Ext.X1 as sufÏcient certificate contemplated under the Rules.
The writ petition is disposed of accordingly.
sd/
BECHU KURIAN THOMAS JUDGE jm/
APPENDIX OF WP(CRL.) 458/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 08.07.2019 IN CRIMINAL APPEAL NO. 2192 OF 2010 ON THE FILE OF THE HONOURABLE HIGH COURT OF KERALA Exhibit P2 TRUE COPY OF THE MEDICAL CERTIFICATE DATED
14.04.2023 ISSUED FROM THAQDEES HOSPITAL ALUVA, ERNAKULAM DISTRICT Exhibit P3 TRUE COPY OF THE ORDER DATED 05.01.2023 IN CRL.M.C. NO. 9111 OF 2022 ON THE FILE OF THE HONOURABLE HIGH COURT OF KERALA Exhibit P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 3RD RESPONDENT DATED 26.05.2023 ALONG WITH POSTAL RECEIPT Ext.X1 REPORT OF THE S.H.O DATED 7.08.2023 AND CERTIFICATE OF THE DOCTOR.
