Kerala High Court Sets Aside Parole Denial | Even A Condemned Prisoner Has Right To See His Ailing Mother | Invokes Article 226 For Humanitarian Escort
Isabella Mariam
The High Court of Kerala Single Bench of Justice P.V. Kunhikrishnan held that the basic rights of a condemned prisoner, including the right to see an ailing parent, deserve judicial protection despite statutory limitations. In exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, the Court set aside the rejection of an application for emergency escort parole filed on behalf of a death row inmate. The Court directed the prison authorities to facilitate an escorted visit by the prisoner to see his 93-year-old mother, who is bedridden and in a medically deteriorating state.
The petitioner, wife of a condemned prisoner currently held at the Central Prison and Correctional Home, Poojappura, approached the High Court seeking directions for grant of emergency parole or escort parole. The petition was filed in light of the prison authorities’ refusal to allow the prisoner to visit his 93-year-old mother, who was critically ill and bedridden.
The petitioner stated that her husband was sentenced to death by the Additional Sessions Court – I, Mavelikara in Sessions Case No. 461 of 2022. Following the conviction, an appeal was pending before the High Court. Despite this, the prison authorities rejected multiple requests for emergency or escort parole citing prohibitive legal provisions.
The first application for escort visit or emergency parole was submitted to the Superintendent of the Central Prison (5th Respondent) when the prisoner's mother was initially hospitalized. This request was rejected via order dated 12.12.2024 (Exhibit P1). Subsequently, the prisoner's mother was again hospitalized on 19.05.2025 at the TD Medical College Hospital, Alappuzha. Medical evidence including a treatment certificate (Exhibit P2), CT scan report (Exhibit P3), and discharge card dated 26.05.2025 (Exhibit P4) confirmed that she was suffering from multi-infarct syndrome, vascular dementia, and generalized osteoporosis, and remained completely bedridden.
In view of the deteriorating health of the prisoner's mother, another application was filed on 10.06.2025 for either emergency or escort parole (Exhibit P5). However, this request was also denied through an order dated 11.06.2025 (Exhibit P6). The rejection order again relied on the provisions of Section 42 of the Kerala Prisons and Correctional Services (Management) Act, 2010 and Rule 339(2) of the corresponding Rules, which prohibit such paroles to condemned prisoners.
Challenging the validity of the rejection order, the petitioner sought the following reliefs before the High Court: calling for records related to Exhibits P1 to P6; issuance of a writ of certiorari to quash Exhibit P6; a declaration that condemned prisoners are entitled to parole under Rule 400 of the Kerala Prisons and Correctional Services Rules, 2014; a writ of mandamus to grant escort/emergency parole to the prisoner; dispensing with translation of vernacular documents; other just and proper reliefs; and costs.
The petition was opposed by the State and prison authorities. The learned Public Prosecutor contended that Section 42 of the 2010 Act and Rule 339(2) of the 2014 Rules clearly bar any form of parole or escort visit to a death row convict. It was further submitted that the law did not allow any exception in such cases and referred to a previous judgment of the High Court in W.P.(Crl.) No. 300 of 2024, wherein a similar request by a condemned prisoner for parole to attend a marriage function was denied.
Justice P.V. Kunhikrishnan, while acknowledging the statutory bar under Section 42 and Rule 339(2), recorded: "Justice, without the soft hand touch of humanity, compassion, and empathy is not justice. But humanity, compassion and empathy are matters of judicial discretion which is to be used based on the facts and circumstances of each case."
The Court recognized that the prisoner's mother was in a terminal stage and cited medical documents presented in support: "The mother of the prisoner is completely bedridden. Ext.P4 is the discharge card of the mother of the prisoner. Therefore, the petitioner again submitted an application to the 5th respondent seeking either emergency parole or an escort visit at her own expense by enclosing the medical records."
The Court stated: "Section 42 of the Act, 2010 says that every prisoner sentenced to death shall be treated as a normal convicted person until his final executable sentence is passed, but such a prisoner is not entitled to any leave or escort visit. Similarly, Rule 339(2) also says that the convicts, who are sentenced to death, are not entitled to ordinary leave or escort visit."
However, weighing the humanitarian concerns, the Court remarked: "It is true that there is a bar for releasing the condemned prisoner as per Sec.42 of the Act, 2010 and Rule 339 (2) of the Rules. But to protect the basic rights of an individual, whether he is a convict or condemned prisoner, this Court can invoke the extraordinary jurisdiction under Article 226 of the Constitution of India."
The Court contrasted the present case with the earlier decision in W.P.(Crl.) No. 300 of 2024, stating: "But that was a case in which the parole was requested for participating in a marriage, which this court rightly rejected. That is not the situation here."
Recognizing the grave illness of the prisoner's mother, the Court stated: "When the prisoner, who is a condemned prisoner waiting for death sentence submit before this Court that he want to see his mother, who is in a sinking stage, this Court cannot shut its eye, even though he was inhuman to the deceased and his relatives, when he committed the murder, which is found as true by the trial court."
The Court allowed the writ petition and issued the following directions:
"Exhibit P6 is set aside."
"The respondents Nos. 2 to 5 are directed to take the petitioner's husband on escort parole to see his mother, within 3 days from the date of receipt of a certified copy of this judgment. The convict should be allowed to spend a minimum of 6 hours with his mother, of course, under the strict surveillance of the escorting police."
"Necessary arrangement shall be made by the District Police Chief (Thiruvananthapuram City) for granting escort parole to the petitioner's husband forthwith."
Advocates Representing the Parties:
For the Petitioners: Shri. K.S. Madhusoodanan, Sri. M.M. Vinod Kumar, Sri. P.K. Rakesh Kumar, Sri. K.S. Mizver, Shri. M.J. Kirankumar, Shri. Shaiq Rasal M.
For the Respondents: Public Prosecutor, Additional Director General of Prosecution, Sri. C.K. Suresh (Senior Public Prosecutor)
Case Title: Jasmin Shaji v. State of Kerala & Ors.
Neutral Citation: 2025: KER:45587
Case Number: WP(CRL.) No. 770 of 2025
Bench: Justice P.V. Kunhikrishnan
