V. MUHAMMED BASHEER @ KARATE BASHEER v. THE SUPERINTENDENT

THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031 SRI. P. NARAYANAN (SENIOR GOVERNMENT PLEADER AND ADDL.PUBLIC PROSECUTOR) THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON

05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(CRL.) NO. 1228 OF 2023 2 BECHU KURIAN THOMAS, J. =-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(Crl.) No.1228 of 2023 =-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 5th day of January, 2024 JUDGMENT This writ petition was filed seeking direction to suspend the sentence imposed on the petitioner in S.C.No.3 of 2012 on the files of the Additional Sessions Court-III, Thalassery for a period of one month. During the pendency of this writ petition, an application was filed as I.A.No.1 of 2024 on 04.01.2024, seeking a direction to grant leave to the petitioner for a period of 30 days from 05.01.2024.

2. Petitioner was the 3rd accused in S.C.No.3 of 2012 on the files of the Additional Sessions Court-III, Thalassery. He was found guilty for the offences including Section 302 of the Indian Penal Code, 1860. While undergoing incarceration, he preferred this writ petition seeking suspension of the sentence, alleging that his mother is seriously ill and is suffering from cancer. Therefore, to enable the petitioner to be by the side of his mother and to perform his duties as a son, leave was pointed out as essential.

3. While the writ petition was pending, the prison authorities granted ordinary leave to the petitioner on 21.12.2023 for a period of 15 days and he is bound to return on expiry of the leave today (05.01.2024). It is in the above circumstances that petitioner preferred I.A.No.1 of 2024 WP(CRL.) NO. 1228 OF 2023 3 to extend the period of leave by a further 30 days.

4. Sri.Sunny Mathew, the learned counsel for the petitioner referred to the certificate produced as Ext.P4 issued by 'Wellness Health Care, Iritty, Kannur' pointing out that petitioner's mother is suffering from “Carcinoma breast left and had underwent surgical excision”. The certificate also mentions that “patient is bedridden and is complaining of severe back pain” and that the “patient needs physiotherapy traction plus SWD plus TENS, which started on 27.12.2023 and the physiotherapy must continue for six weeks”. On the basis of the above certificate, it was argued that the petitioner ought to be granted atleast an emergency leave to assist his mother, if not an extension of the leave already granted.

5. Sri.P.Narayanan, the learned Additional Public Prosecutor opposed the contentions and pointed out that the very writ petition itself is not maintainable in the manner in which it has been framed and further that considering the contentions advanced in the writ petition, the prison authorities had granted ordinary leave for 15 days from 21.12.2023. It is further pointed out that as per Rule 400 and 403 of the Kerala Prisons & Correctional Services (Management) Rules, 2014 (for short, 'the Rules'), the petitioner is not entitled for the grant of any emergency leave even.

6. Petitioner's mother is alleged to have underwent surgery for cancer of the left breast. The certificate produced as Ext.P4 from a private clinic does not indicate the date or the year when the surgery was WP(CRL.) NO. 1228 OF 2023 4 performed. Of course, the certificate indicates that the patient is bedridden and is now complaining of severe back pain and that physiotherapy has to be carried out. Ordinary leave has already been granted from 21.12.2023, therefore further ordinary leave cannot be granted at this juncture.

7. Rule 400 of the Rules stipulates when emergency leave can be granted. It is specified therein that in cases of death or when the patient is an immediate relative and is terminally ill, emergency leave can be granted. Further, in Rule 403 of the Rules, it is stipulated that the nature of terminal illness must be certified by a Government Medical Officer not below the rank of a civil surgeon.

8. In the decision in Sandhya v. Secretary, Home Department and Others [2023 (5) KHC 174], a Division Bench of this Court had observed that the grant of an emergency leave under Article 226 of the Constitution of India must be resorted to only when an order is passed rejecting the application for emergency leave or when there is inaction in passing an order within a reasonable time. Of course, in rare and exceptional circumstances, recourse can be had to Article 226 of the Constitution of India as well.

9. On a perusal of the pleadings in the writ petition and on an appreciation of the contentions advanced, it is evident that petitioner has not filed any application for emergency leave, while, petitioner's application for ordinary leave has already been allowed and he has been WP(CRL.) NO. 1228 OF 2023 5 granted leave for a period of 15 days from 21.12.2023 which is expiring today. The certificate Ext.P4 is issued by a private clinic and does not satisfy the requirements of Rule 403 of the Rules. Even otherwise, Ext.P4 does not certify that illness is terminal falling within the meaning of the term “emergency”. Thus circumstances arising in the case does not warrant the grant of an emergency leave.

10. As mentioned earlier, petitioner has not produced the certificate of a Government Medical Officer and has not even made an application for emergency leave. In such circumstances, I find no merit either in the application I.A.No.1 of 2024 or in the writ petition. Accordingly, the writ petition is dismissed. Since petitioner is bound to return today (05.01.2024), the said period shall stand extended by one more day, i.e. till 5.00 p.m.on

06.01.2024. RKM BECHU KURIAN THOMAS, JUDGE Sd/- WP(CRL.) NO. 1228 OF 2023 6 APPENDIX OF WP(CRL.) 1228/2023 PETITIONER'S EXHIBITS : Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 TRUE COPY OF THE PETITIONER PRODUCING HEREWITH THE MEDICAL CERTIFICATE ISSUED FROM WELLNESS HEALTH CARE IRITTY ON 07.10.2023 TRUE COPY OF THE DISABILITY CERTIFICATE DATED 19.08.2010 ISSUED BY THE MEDICAL BOARD TRUE COPY OF THE MRI SCAN REPORT ON 20.12.2022 TRUE COPY OF THE CERTIFICATE ISSUED FROM WELLNESS HEALTH CARE HOSPITAL ON 27.12.2023