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Prison Superintendent Cannot Override Government Order Granting Leave Based on Subsequent Events: Kerala High Court

Kochi: The Kerala High Court has ruled that a Prison Superintendent is bound by a government order granting ordinary leave to a convict and cannot refuse to implement it based on alleged incidents that occurred after the government's decision was made. Justice Bechu Kurian Thomas issued the directive in a writ petition filed by the wife of a life convict.

The case involved Hussain Abbas , serving a life sentence under Section 302 of the Indian Penal Code. His appeal against the conviction is pending before the High Court. The Prison Advisory Committee had recommended ordinary leave for Abbas and 13 other prisoners on June 29, 2023. Acting on this recommendation, the State Government issued an order on December 12, 2023, granting 15 days of ordinary leave to the recommended prisoners, including Abbas .

However, despite the government order, Abbas was not released on leave. When queried, the prison authorities indicated that leave was being withheld. The Superintendent of Prisons filed a counter-affidavit stating that while the probation officer had recommended leave, police reports were unfavourable. Furthermore, the denial was primarily based on an alleged incident on August 27, 2023, where a mobile phone was seized from the prison, and an investigation revealed Abbas 's alleged involvement. The Superintendent also cited a past prison punishment imposed on Abbas in November 2021 for assaulting a co-prisoner and smuggling contraband.

The petitioner argued that the government order granting leave was binding and could not be unilaterally ignored by the Superintendent based on subsequent allegations.

The High Court, after considering the submissions, held that the government order granting leave was based on circumstances existing up to the date of the recommendation (June 29, 2023). The court emphasised that once leave is granted by the government, the Superintendent of Prisons, a subordinate officer, is bound to implement that order.

Justice Bechu Kurian Thomas observed, "Since the Government Order granting leave to the petitioner’s husband has not been varied or revoked, the Superintendent of Prisons is also, as an officer under the Government, bound to abide by the same, and he cannot vary or revoke the said order." The court added that allowing subordinate officers to interfere with government orders based on subsequent events could lead to misuse and abuse of power.

While acknowledging the Superintendent's power under Rule 412 of the Kerala Prisons and Correctional Services Management Rules, 2014, to recall a convict while on leave for immoral activities, the court clarified that this power is distinct from refusing to grant leave already sanctioned by the government.

The court further stated that the alleged crime involving the mobile phone, which occurred subsequent to the leave recommendation, could not be used as a reason to deprive the convict of the leave already granted by the government order (Ext.P1) in these peculiar circumstances.

The Court's judgment clarified that while subsequent incidents cannot override a pre-existing government leave order, they can certainly be taken into reckoning when considering eligibility for future ordinary leave.

Consequently, the High Court allowed the writ petition and directed the prison authorities to release the petitioner's husband on ordinary leave for a period of 15 days as stipulated in the government order (Ext.P1).

The ruling reinforces the principle that executive orders of the government are binding on its subordinate officers and cannot be disregarded based on discretion or events occurring after the order is passed, particularly when the order is based on a recommendation considering prior circumstances.