RAJASREE K v. STATE OF KERALA

SRI. P. NARAYANAN (SR. GOVT.PLEADER & ADDL. PUBLIC PROSECUTOR) THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(CRL.) NO. 1011 OF 2023 3 BECHU KURIAN THOMAS, J. =-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(Crl.) No.1011 of 2023 =-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 23rd day of January, 2024 JUDGMENT Petitioner is the wife of convict No.3177 of Open Prison and Correctional Home, Nettukaltheri. The convict is alleged to have committed murder of his previous wife by strangulation and flung the dead body in an unused well. The incident happened in the year 1993 and by judgment dated 04.07.1994 in S.C.No.184 of 1993, he was found guilty and sentenced to death by the trial court. Subsequently in Crl.A.No.626 of 1994, this Court set aside the conviction and sentence and acquitted the petitioner. However, on appeal by the State before the Supreme Court, the acquittal was reversed and he was sentenced to life imprisonment.

2. Petitioner's husband has been undergoing the sentence of imprisonment for the last twenty years and six days as on 20.08.2023 and claims to have earned a remission of five years and three months. According to the petitioner, despite undergoing such long years of incarceration, his request for premature release has been repeatedly rejected, ignoring the binding precedents of this Court as well as that of the Supreme Court. The convict's wife has approached this Court seeking his premature release. WP(CRL.) NO. 1011 OF 2023 4

3. A statement has been filed on behalf of the respondents wherein it was pointed out that the petitioner's case was considered several times and the Jail Advisory Board had repeatedly decided not to recommend the premature release, considering the heinousness of the murder committed by him. Even recently, though the probation report was in favour of the petitioner, the Jail Advisory Board considered the claim of the petitioner for premature release on 29.06.2023 and rejected it, after referring to the police report which did not recommend the convict's release. Challenging the decision of the Jail Advisory Committee, the convict has preferred an appeal before the State Level Advisory Committee, which is pending consideration.

4. Sri.Gayathri Muraleedharan, the learned counsel for the petitioner contended that petitioner has been having a harrowing experience in the jail for the last more than 20 years and the guidelines issued by the National Human Rights Commission referred to by the Supreme Court in Joseph v. State of Kerala and Ors. [2023 INSC 843] clearly observed that the practical impact of a convict who has served more than 20 to 25 years, based entirely on the nature of crime committed in the distant past, would be to crush the life force out of such individual, altogether. Referring to the nature of crimes that are placed in the list, which restricts the right of premature release, the Supreme Court observed that such persons would never see freedom, and would die within the prison walls. It is further observed that “there is a peculiarity WP(CRL.) NO. 1011 OF 2023 5 of continuing to imprison one who committed a crime years earlier who might well have changed totally since that time and the refusal to release such prisoners who have served extremely long periods of incarceration, not only crushes their spirit, and instills despair, but signifies society's resolve to be harsh and unforgiving and the idea of rewarding a prisoner for good conduct becomes entirely negated”.

5.Sri.P.Narayanan, the learned Addl. Public Prosecutor, on the other hand contended that the various precedents of this Court as well as that of the Supreme Court clearly stipulate that the premature release is not a right and is a matter for the State Government to consider based upon the recommendations of the Advisory Committee and to be decided on a case to case basis. It was however pointed out that since the appeal before the State Level Advisory Committee is pending consideration, a decision will be taken and the petitioner's right to move this Court will arise only after such a decision. It is also pointed out that even if the request for premature release is rejected, the same will be considered again after one year, as per the rules.

6. Petitioner has remarried and the fact that his second wife is before this Court seeking premature release is a matter which must be taken into reckoning while considering the convict's claim for premature release in the light of the nature of crime allegedly committed by him.

7. Though various contentions have been raised across the Bar, the fact remains that petitioner's application for premature release has been WP(CRL.) NO. 1011 OF 2023 6 rejected by the Jail Advisory Committee. Ultimately the decision to release the convict or not, is that of the State Government. In the decision in Joseph's case (supra), the Supreme Court had, after considering the various aspects, found it appropriate to direct release of the petitioner in the peculiar facts of the said case. The said conclusion may not necessarily be attracted in every case that comes up before this Court for premature release. Therefore, I decline to direct the premature release of the petitioner's husband invoking the jurisdiction under Article 226 of the Constitution of India.

8. However, since the appeal filed by the petitioner is pending before the State Level Advisory Committee, the said Committee is bound to take a decision without further delay considering the various precedents laid down by the Supreme Court as well as this Court in respect of premature release. Therefore, it is only appropriate that this writ petition be disposed of with a direction. Accordingly, there will be a direction to the State Level Advisory Committee to consider the appeal filed by the petitioner, as expeditiously as possible, at any rate, in the next meeting itself and communicate the decision to the petitioner without fail. The writ petition is disposed of as above. RKM Sd/- BECHU KURIAN THOMAS, JUDGE WP(CRL.) NO. 1011 OF 2023 7 APPENDIX OF WP(CRL.) 1011/2023 PETITIONER'S EXHIBITS : Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 THE TRUE COPY OF THE JUDGMENT RENDERED BY THE ADDITIONAL DISTRICT & SESSIONS JUDGE- II, KOLLAM IN SC NO: 184/1993 DATED 04.07.1994 THE TRUE COPY OF THE JUDGMENT RENDERED BY THIS HONOURABLE COURT IN CRL.A.NO.626/1994 DATED 29.11.1994 THE TRUE COPY OF THE JUDGMENT RENDERED BY THE HONOURABLE SUPREME COURT IN CRIMINAL APPEAL NO.270/1996 & 271/1996 DATED 11.08.2003 THE TRUE COPY OF THE SURRENDER CERTIFICATE ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT DATED 21.08.2023 THE TRUE COPY OF THE APPLICATION SENT TO THE RESPONDENTS HEREIN DATED 18.09.2023 BY THE PETITIONER HEREIN