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2025 DIGILAW 1486 (KER)

Shoubanath P. W/o Ubaid v. State of Kerala

2025-05-27

P.V.KUNHIKRISHNAN

body2025
JUDGMENT : 1. The above writ petition (Crl) is filed with following prayers : “i) To call for the records leading to Ext: P 4 and to quash the same by writ of certiorari. ii) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction to the third respondent to grant special leave to the petitioner's husband Ubaid accused name (Convict Nos. 146/23 of Central Prison and Correction Home, Tavanoor), who is undergoing incarceration, in accordance with the law, for the purpose of aiding paternal grandfather of petitioner's husband. iii) To grant such other reliefs as this Hon'ble Court deems fit and proper to grant in the facts and circumstances of the case.” [sic] 2. The petitioner is the wife of the convict No.147/2023, who is undergoing imprisonment at Central Prison and Correctional Home, Thavanoor in connection with the conviction and sentence in SC No.265/2018 on the file of the Special Court (Trial of offense under SC/ST (POA) Act), Mannarkkad. It is submitted that the paternal grandfather of the petitioner's husband, Sri. Ahmed Sadhik is a heart patient. He is diagnosed with Chronic Obstructive Lung Disease, Coronary Artery Disease and treatment is going on. He has been admitted in Government Tribal Speciality Hospital, Kottathara. He is on death bed is the submission. Therefore, the presence of the petitioner's husband is highly necessary, during the last days of the paternal grandfather of the petitioner's husband. The application of the petitioner was rejected as per Ext.P4. Aggrieved by the same, this writ petition (Crl) is filed. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 4. The counsel for the petitioner submitted that the only reason for rejecting the application is that there will be law and order problem, if the petitioner's husband is released on bail. The counsel submitted that the co-accused were already released on emergency leave. The Public Prosecutor seriously opposed the emergency leave. The Public Prosecutor submitted that the allegation against the petitioner's husband is very serious. According to the prosecution, an innocent man was attacked and killed by the accused. Therefore, this Court may not grant emergency leave and moreover, if he is released on bail, his life will be in danger. It is also submitted that there is law and order problem prevailing in the area. 5. According to the prosecution, an innocent man was attacked and killed by the accused. Therefore, this Court may not grant emergency leave and moreover, if he is released on bail, his life will be in danger. It is also submitted that there is law and order problem prevailing in the area. 5. This Court considered the contentions of the petitioner and the Public Prosecutor. Admittedly, the co- accused's application for emergency leave was allowed by this Court as per Ext.P5. The application of the co-accused was originally rejected for the reason that there will be law and order problem. That was rejected by this Court and granted emergency parole. It will be better to extract the relevant portion of the same: “4. The application for emergency leave was rejected as per Ext.P3 order mainly based on the adverse police report. The learned Public Prosecutor made available to me a copy of the police report. In the police report it is stated that if the convict is released on emergency leave, there are chances for him to commit offence of civil nature. It is also stated that there arechances of clashes between two groups in the community and the life of the convict will be in danger. It is further stated that there is a possibility of a law and order situation. 5. A perusal of Ext.P3 would show that the said finding has been arrived at by the police not based on any sufficient materials. The police has only questioned the relatives and parents of the convict. The police did not make any detailed enquiry. The emergency parole has been sought on the ground that the father of the convict is diagnosed with a serious heart ailment. Considering the entire facts and circumstances of the case, I am of the view that emergency parole for seven days can be granted to the petitioner's son. Hence, the respondent No.3 is directed to grant emergency leave to the petitioner's son for a period of seven days, as per Rules, on such condition as he deems fit to impose.” 6. Moreover, this Court in Rama v. State of Kerala, 2023 KHC 851 observed like this: 11. “I fail to understand the above report of the police authorities. The petitioner's husband is seeking emergency leave as per R ules, 2014 because his dwelling house is fully collapsed. Moreover, this Court in Rama v. State of Kerala, 2023 KHC 851 observed like this: 11. “I fail to understand the above report of the police authorities. The petitioner's husband is seeking emergency leave as per R ules, 2014 because his dwelling house is fully collapsed. He is the family head and his presence is necessary for getting some benefits which are sanctioned by the local panchayat in his name. At this stage the police says that if the prisoner is released, there is a chance for political and other law and order problems. That shows that the police authorities cannot give protection to a prisoner who is entitled to emergency leave as per R .400(1)(iii) of the R ules, 2014 . This shows nothing but the incapacity of the police authorities and not the ineligibility of the prisoner. If the police authorities are not able to maintain law and order, when a prisoner comes to his house on an emergency leave to complete the preliminary steps to construct a shelter for his family and children, that is a sad state of affair. I am of the considered opinion that the petitioner's husband, C No.102/22 is entitled to emergency leave under R .400(1)(iii) of R ules, 2014 and if any law and order problem arises, when the prisoner is on emergency leave, the District Police Chief, Thrissur R ural will ensure protection to the prisoner. It is his responsibility, because, he has submitted that, if the prisoner is coming out, there is a chance for law and order problem. If the District Police Chief, Thrissur R ural is not even able to protect the life of a prisoner who is released on emergency leave to take steps to complete a collapsed dwelling house, he is not entitled to continue in that post. “ 7. In the light of Ext.P5 and also in the light of the dictum in Rama's case (supra), I think the ground for rejecting the application in Ext.P4 will not stand. Therefore, I am of the considered opinion that the matter is to be reconsidered by the 3 rd respondent. 8. Therefore, this writ petition (Crl) is allowed in the following manner : (1) Ext.P4 is set aside. Therefore, I am of the considered opinion that the matter is to be reconsidered by the 3 rd respondent. 8. Therefore, this writ petition (Crl) is allowed in the following manner : (1) Ext.P4 is set aside. (2) The 3 rd respondent is directed to reconsider the application and pass fresh orders in it, in the light of observation in this order as expeditiously as possible, at any rate, within two weeks from the date of receipt of a certified copy of this judgment.