Point of Law: Hon'ble Supreme Court, while examining the scope of issuance of a writ of habeas corpus in the matter of grant of remission or parole, held categorically that remission/parole is not a vested right.

JUDGMENT :

C. Jayachandran, J.

We are called upon to answer the following intriguing questions in this writ petition:-

1. Whether a convict prisoner can seek interim suspension of sentence for short-term requirements like disease, marriage etc under Section 389 of the Code of Criminal Procedure, instead of seeking leave/parole under the Kerala Prisons and Correctional Services (Management) Act, 2010 ('the Prisons Act' for short) and the Rules framed thereunder (herein after referred to as 'the Prisons Rules')?

2. Whether parole/leave can be sought for as a matter of right, in the light of the provisions of the Prisons Act and Rules? Whether the judgment in Noushad. A v. State of Kerala [2023 (3) KLT 24] recognise such a right?

2. The Writ Petitioner challenges non-grant of parole/leave to her husband by name 'Seethappan', a convicted prisoner undergoing sentence in the Central Prison, Viyyur pursuant to the judgment of conviction in S.C.No.246/2014 on the files of the first Additional Sessions Court, Ernakulam, inter alia for offence under Section 302 of the Indian Penal Code. Leave/Parole is refused for reason of adverse police report, albeit probation report being favourable.

3. Petitioner relies on S.78 of the Prisons Act and Rule 397 of the Prisons Rules. The petitioner maintains that her husband is entitled to be released on ordinary leave for a period of 60 days in a calendar year under Rule 397. A recent judgment of a learned Single Judge of this Court in Noushad. A v. State of Kerala [2023 (3) KLT 24], was strongly relied upon to contend that leave in terms of Rule 397 is a right in itself and upon satisfaction of the conditions stipulated in Rule 397, the discretion to grant leave must be exercised in favour of the convict, which right, however, is negated in the case of petitioner's husband, on an apparently jejune ground of threat to peace and tranquility. Per contra, learned Public Prosecutor submitted that, fulfillment of conditions in Rule 397 only enables the convict to seek leave, the grant of which would essentially be discretionary, subject to such other parameters stipulated in Rule 397, as also, Section 78 of the Prisons Act. This impels us to address initially, the second question as to whether Rule 397 confers an absolute or vested right of leave; or merely stipulates the eligibility criteria for grant of leave in terms of S.78 of the Prison Rules, for which, a scan of the relevant Rules and the binding precedents are necessary.

4. The Scheme of the Act and Rules, in so far as it pertains to leave/parole:- S.73, falling under Chapter XVI, of the Prisons Act deals with 'release on parole'. The specific grounds are:

(a) serious illness or death of any member of the prisoner's family or of any of his nearest relatives; or

(b) any other sufficient cause.

The language employed is “the State Government may”.

Besides, the release is subject to 'such conditions as may be prescribed' and also for 'such period as it may deem necessary'. No emphasis is required as regards the clear discretion, statutorily afforded to the Government.

5. S.78 deals with 'leave'. S.78(1) provides that leave may be granted to well behaved, eligible, convicted prisoners. Again the language employed is 'may'. The objective is better rehabilitation and re-socialization, as an incentive for good behaviour and responsiveness to correction. Pertinently, the leave is to be granted in such manner and subject to such conditions as may be prescribed. S.78(3) stipulates that the kind of leave and matters related thereto shall be such as may be prescribed.

6. S.79 speaks of escort visit for prisoners who are not eligible for the required kind of leave, to visit relatives etc. under escort, on such circumstances as prescribed in the Rules.

7. S.99 provides the powers of the Government to make rules. S.99(2)(xxxiii) deals with the power to make rules regarding the manner in which leave may be granted under S.78(1). S.99(2)(xxxiv) provides for the rule making powe