Discretion to grant leave from prison must be exercised in favor of convicts if they satisfy statutory conditions: Kerala High Court

The Kerala High Court recently observed that if a convict satisfies the statutory conditions to be eligible to be granted leave from prison, discretion to grant leave must be exercised in their favour [Noushad A v State of Kerala & Ors.]..Granting leave to a convict refers to granting leave of absence from prison for a specified time period..Justice Bechu Kurian Thomas noted that an eligible convict is entitled to be granted leave for 60 days in a year as per Rule 397 of the Rules read with section 78 of the Kerala Prisons and Correctional Services (Management) Act, 2010 (Kerala Prison Act).The Court held that if convicts satisfy the conditions for being granted leave, the authority concerned must exercise its discretion in their favour as a matter of right. “It is relevant to observe that an eligible convict is entitled to be granted leave for 60 days in a year as per Rule 397 of the Rules read with section 78 of the Act. If the conditions for leave as prescribed in the statute are satisfied, the discretion to grant leave must be exercised in his favor as it will partake the character of a right itself,“ the Court said in its judgment.It further said that the discretion of an authority to grant leave cannot be arbitrary, fanciful, or vague, but it must be legal and regular and must be exercised within the limits permissible by law.It also added that court cannot remain a mute spectator and will render assistance when the right of its citizens, including that of a convict, has been violated in circumstances that are extraordinary..The judgment was passed on two petitions in relation to the grant of ordinary leave to a convict lodged in the Central Prison, Thiruvananthapuram.One petition was filed by the convict himself and the other by the brother of the convict.The petitioners alleged that the Jail Superintendent refused to grant him leave after a crime was registered against another convict for purposefully injuring him in an incident that took place on February 11. It was contended that until this crime was registered against the other convict, there was never any adverse report or remark against the petitioner.It was also submitted that on the day that the Court directed the Jail Superintendent to file a counter-affidavit in this case, he ordered the cancellation of 30 days remission that the petitioner had earned..The Court noted that the petitioner had been granted leave regularly from 2015 onwards without any complaint of any kind and the only two adverse episodes against him were the incidents raised by the Jail Superintendent in February.In the said two incidents, the Court noted that the petitioner has not been given an opportunity to explain and that the statutory rights of the petitioner in that regard, under Section 83 of the Kerala Prison Act, have been trampled upon..In this case, since the petitioner had not approached the competent authority earlier, the Court pointed out that it cannot issue a writ of mandamus. However, being satisfied that there has been an attempt to purposely deny leave to the petitioner by resorting to an unfair procedures, the Court declared that he cannot be denied ordinary leave if he applies for it. .The petitioner was represented by advocates V Vijitha and R Rohith.The respondents were represented by and Senior Advocate K Ramkumar and advocates Sreeja V, Aswini Sankar RS, T Ramprasad Unni, and SM Prasanth.[Read Judgment]