Shibu TT vs State Of Kerala

Dr Kauser Edappagath, J

This Crl.M.C has been filed by the convict, who is undergoing imprisonment, to release him on emergency leave for a period of 15 days.

The petitioner is the accused in S.C.No.248/2015 on the file of the Additional Sessions Court I, (Special Court under the POCSO  Act),  Thodupuzha.   He  was  convicted  for  the  offences punishable under Sections 376(2)(i) and 376(2)(n) of IPC and Section 5(l) and (m) r/w Section 6 of the Protection of Children from Sexual Offences Act. He is sentenced for life imprisonment and undergoing sentence since 31.10.2019.

According to the petitioner, he was brought up by his father’s sister, Leela Madhavan, to whom he is extremely attached. It is stated that he was living with his aunt till he was convicted in 2019. It is further stated that, his aunt is suffering from severe breast cancer and he wishes to visit her and spend some time with her before she breaths last. Hence, the petitioner filed Annexure 3 application before the 3rd respondent seeking emergency leave invoking Rule 400(1) of the Kerala Prisons and Correctional Services (Management) Rules, 2014 (for short ‘the Prison Rules’). However, the 3rd  respondent dismissed the said application. It is in these circumstances, the above Crl.M.C has been filed.

I have heard Smt.Saipooja, the learned counsel for the petitioner and Smt.T.V.Neema, the learned Senior Public Prosecutor.

Rule 400 of the Prison Rules deals with granting emergency leave to the convicts. Sub Clause (i) of Rule 400 says that the convicts except those convicted for the offences relating to national security are entitled for emergency leave on the conditions mentioned therein. Sub Clause (i) of Clause (1) of Rule 400 specifically says that if the aunt of the convict is suffering from terminal illness, he is entitled for emergency leave. Sub Rule (3) says that before granting emergency leave, the recommendation has to be given by the Jail Superintendent taking into account the conduct and antecedents of the convict. It further says that report has also to be called for from the police as to whether the release of the convict on emergency leave would create any law and order situation.

Annexure 1 certificate issued by the medical officer would show that the aunt of the petitioner namely Leela Madhavan is suffering from breast cancer. I have called for a report from the Jail Superintendent as well as from the Inspector of Police, Karimannoor Police Station. The Jail Superintendent has reported that the conduct of the petitioner in the prison is satisfactory. The report of the Inspector of Police says that the aunt of the petitioner is suffering from breast cancer and also heart disease. The Inspector has reported that Mrs.Leela Madhavan now lives in Pazhayara Laksham Veedu Colony under the care of her younger sister. The said house is located near the house of the survivor. The learned counsel for the petitioner submitted that the aunt of the petitioner is temporarily residing there and she is prepared to shift to her permanent residence at Thankamani, Idukki and the petitioner, if granted emergency leave, will reside only at Thankamani, Idukki and will not enter into the jurisdiction of Karimannoor Police Station where the survivor is at present residing.

Having heard both sides and also taking into account the report submitted by the Jail Superintendent as well as the Inspector of Police, I am of the view that the petitioner can be granted emergency leave for a period of seven days.

In the light of the above findings, this Crl.M.C is disposed of as follows:

i) The 3rd respondent is directed to release the petitioner on emergency leave for a period of seven days from 7.1.2023.

ii) The  petitioner  shall  report  back  to  the  3rd respondent on 14.1.2023.

iii) The petitioner shall reside along with her aunt Mrs.Leela Madhavan at her residence at Thankamani, Idukki during the period of emergency leave.

iv) The petitioner shall not enter into the jurisdiction of Karimannoor Police Station where the victim resides.

v) The petitioner shall not in any way contact either directly or indirectly the victim.

vi) The petitioner shall report before the Station House Officer, Thankamani on 8.1.2023, 10.1.2023 and 12.1.2023 between 10 am. and 11 am.