T.V. Raffy vs State Of Kerala & Ors.

This Writ Petition concerns the parameters for considering ordinary leave sought for by a convict undergoing sentence. Ext.P7 Order is under challenge in this Writ Petition, which rejected the petitioner’s son’s application for ordinary leave in terms of Rule 397 of the Kerala Prisons and Correctional Services (Management) Rules, 2014 (for short, the Rules). The specific reason stated in Ext.P7 is the adverse police report and the probation report, which are made mention of in Rule 397(h) of the Rules.

Learned Counsel for the petitioner would submit that other accused persons, convicted in the same case, have already been granted ordinary leave under Rule 397. In their case also, there were adverse police and probation reports. However, they approached this Court; and by virtue of Ext.P2 judgment, this Court directed their release. The petitioner’s son is also entitled to similar treatment, is the contention urged. It was then submitted that the contents of the police report and the probation report are also not in accord with the requirements of Rule 397(h) of the Rules. On such premise, the petitioner seeks Ext.P7 to be set aside.

This was seriously opposed by the learned Public Prosecutor, pointing out that ordinary leave cannot be granted, if the police report and the probation report are against the prisoner/convict. Referring to Rule 397(h), learned Public Prosecutor would submit that the possibility of a law and order situation, has to be considered by the police, while preferring the report. Acting upon that mandate, the police officer considered the same, and preferred the report indicating a possible law and order situation in the locality. Referring to the probation report, it was pointed out that the petitioner’s son belongs to a gang of goons and that there exists a rival gang, which points to a sure possibility of a law and order situation, if the convict is released.

Having heard the learned Counsel appearing for the respective parties, this Court is of the opinion that Ext.P7 cannot be sustained.

Primarily, this Court notice that persons, who are similarly placed like the petitioner’s son have been given ordinary leave as per Ext.P2 judgment of this Court. There also, the police and probation reports were against the said prisoners. This Court, in Ext.P2 judgment, relied upon another judgment in Rama v. State of Kerala [2023 KHC 851], which held that it is the duty of the police authorities to maintain law and order; and for that reason, the entitlement for ordinary leave in terms of Rule 397 cannot be denied. The findings in Rama (supra) were quoted with approval by the learned Single Judge in Ext.P2, to set aside the impugned Order therein and to direct release of the petitioner therein on ordinary leave. This Court is in agreement with the findings in Rama (supra) as quoted in Ext.P2. A mere possibility of a law and order situation, which is not otherwise substantiated by sufficient facts and cogent materials, cannot be a ground to deny ordinary leave, which partakes the character of an entitlement of the convict in terms of Rule 397, upon expiry of the period stipulated therein.

Secondly, this Court frowns upon the police report and the probation report relied on in Ext.P7 rejection Order. The said reports are produced by the learned Public Prosecutor as per memo dated 21^st July, 2026. The requirements in terms of Rule 397(h) can be dissected first. Rule 397(h) is extracted herebelow:-

It could be seen from the above that the parameters for consideration in the police report are:-

That apart, the conduct of the convict in the jail, his character, previous history etc has to be certified by the Jail Superintendent.

Now, coming to the report by the Probation Officer, the following are the requirements:-

In the Police report dated 8/4/2025, what is stated is an alleged enquiry conducted by the Additional Superintendent of Police to certain persons, without even indicating their locus and how they are acquainted with the convict. It is not even stated whether they are neighbours or persons residing in the locality. A general comment by one or two among such persons to the effect that there exists a possibility of law and order situation is far too insufficient for the Officer to arrive at a conclusion that there is a real threat to law and order in the locality. A satisfaction in this regard has to be arrived at by the Officer independently, after assessing all relevant materials and inputs; and not on the basis of the ipse dixit of certain persons, even if it is assumed that they are neighbours. Another aspect mentioned in the police report is with respect to the bad conduct of the convict’s friends and that they are involved in several crimes. It is not clear from the report that the persons whose names mentioned therein are co-accused along with the convict in the Sessions Case, where he is convicted. Nothing is stated in the police report as to how the convict’s friends’ conduct would stand in the way of the convict’s release on ordinary leave. In the absence of any cogent material suggesting a live link between the convict and his friends, thus pointing to the propensity or possibility of the convict indulging in a crime while on leave, the bad conduct of the convict's friends, by itself, cannot be taken stock of to reject ordinary leave.

Coming to the probation officer’s report, all what is required, and liable to be looked into, is the family and social background of the convict, as also, his social acceptance. As against these requirements, the probation officer has chosen to state that the convict was a member of a gang of criminals and that he was imprisoned for the murder of one Adarsh, who is a member of a rival gang. It appears that these considerations made by the probation officer are beyond the caveat of Rule 397(h) of the Rules. Importantly, these aspects do not find a place in the police report. The police report and the probation report, both, are flawed, and Ext.P7 Order issued, in reliance of the same, also cannot be sustained. Ext.P7 will stand set aside. There will be a direction to the 2^nd respondent to grant ordinary leave to the petitioner's son (Convict prisoner No.181/2024 of the Central Prison and Correctional Home, Kannur District), subject to the usual conditions imposed. The 2^nd respondent will fix the period of leave taking into account the mandate under Rule 397(b) of the Rules, in accordance with law.

The Station House Officer (Anthikkad Police Station), within whose limits the convict resides, will ensure that there occurs no law and order situation on account of the release of the convict. If necessary, surveillance in the area can be arranged, till the convict returns to the jail. Necessary instruction in this regard will be given by the learned Public Prosecutor to the Station House Officer concerned.

The Writ Petition (Crl) is allowed, as indicated above.