Kerala High Court: In a writ appeal filed challenging the judgment passed by the Single Judge, wherein it rejected the prayer for granting parole to the husband of the appellant, a Mohammed Nisham prisoner, undergoing his life sentence at the Central Prison and Correctional Home in a 2015 case of killing a security guard by running over him, the division bench of Raja Vijayaraghavan V* and P. V. Balakrishnan, JJ. set aside the judgment passed by the Single Judge and directed the competent authority to grant parole to the Mohammed Nisham for a period of 15 days, subject to such conditions as the authority deemed fit and proper.
The Court noted that there is no dispute regarding the fact that the Mohammed Nisham has been undergoing life imprisonment since 2015. He has been granted parole only for a few days on three separate occasions. The appellant, who is the wife of the Mohammed Nisham, sought in her Writ Appeal the release of her husband on parole for a period of 30 days.
The Court further noted that Section 36 of the Kerala Prisons and Correctional Services (Management) Act, 2010 (‘Act, 2010’) addresses the Rights of prisoners. It states that, subject to the provisions of any law in force and conditions prescribed, all prisoners are entitled to:
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The right to live with human dignity;
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Adequate diet, health and medical care, hygienic living conditions, and proper clothing;
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The right to communication, including contact with family members and others, subject to prescribed conditions;
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Access to due process of law, including legal service and legal aid;
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Protection against unlawful aggression or imposition of ignominy not authorized by law;
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Protection against unreasonable discrimination;
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Protection against punishment or hardship amounting to punishment, except through lawful procedures and with an opportunity for defense;
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Information regarding the amenities and privileges available to prisoners under the law.
The Court took note of Section 73 of the Act, 2010, which deals with the release on parole. Additionally, Chapter XXX, Rule 397 of the Kerala Prisons and Correctional Services (Management) Rules, 2014, provides for two types of parole: ordinary parole and extraordinary parole.
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Ordinary Parole: This type of parole is granted for various reasons and in the manner specified under Rule 397. Rule 397(B) specifies that a Mohammed Nisham is entitled to 60 days of normal parole in a calendar year. Each parole period shall not be less than 15 days nor more than 30 days at a time.
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Extraordinary Parole: Rule 400 covers extraordinary leave, which may be granted in three specific emergent situations. Therefore, extraordinary leave can only be granted for the reasons outlined in Rule 400.
The Court highlighted that if a parole application is rejected, the prisoner has the right to appeal under Rule 404 to the specified authorities.
The Court noted that in the case at hand, the Probationary Officer had submitted a favorable report, but the Mohammed Nisham’s request for parole was denied based on an adverse police report. The police report only mentioned a dispute between the Mohammed Nisham and his siblings. The Court found no reason to disbelieve the submission of the Senior Counsel, who, based on documents provided, stated that the Mohammed Nisham had referred the matter to an Arbitration Tribunal, and the proceedings were still pending.
The Court further observed that an individual who seeks to resolve disputes with family members through legal means, such as arbitration, should not be considered to have taken the law into his own hands to gain an advantage.
The Court also noted that the Probationary Officer, after obtaining input from all concerned, had submitted a favorable report. This report must be given due weight, as it represents an independent and professional assessment of the facts and circumstances surrounding the case.
The Court said that, in the present case, the request for parole for 30 days was rejected solely based on an adverse police report. The police report, which was presented before the Court, stated that granting parole might lead to a law and order situation due to an ongoing dispute between the Mohammed Nisham and his siblings.
The Court remarked that on one hand, the Mohammed Nisham has already undergone ten years of incarceration and is entitled, under the provisions of the Act, 2010 to be considered for parole. On the other hand, his siblings, who are free citizens enjoying their constitutional rights, are cited as potential victims of the Mohammed Nisham’s release, even for a short duration.
The Court viewed that it is the responsibility of law enforcement authorities to take proactive steps to prevent any law and order situation from arising. The potential for any untoward incident can be effectively mitigated through strict monitoring and surveillance of the situation, as well as by keeping both parties under observation during the parole period. Stringent and carefully crafted conditions can also be imposed to ensure that the Mohammed Nisham does not breach legal or geographical boundaries or engage in any altercation with his siblings. It is the duty of the police to ensure that the Mohammed Nisham’s release remains peaceful and uneventful.
The Court emphasised that it is important to remember that a Mohammed Nisham is meant to remain in prison for the entire duration of their sentence or, in the case of a life Mohammed Nisham, for the remainder of their natural life. Parole must therefore be viewed as a temporary reprieve, an opportunity not only to fulfill personal or familial obligations but also to maintain essential social ties. Even those undergoing imprisonment must be allowed brief moments of freedom, provided they have exhibited consistently good conduct during their incarceration and shown a genuine willingness to reform and reintegrate into society.
The Court noted that after the Mohammed Nisham was transferred to the Viyyur prison on 15-09-2023, no disciplinary action had been initiated against him. The broader goals of rehabilitation and redemption must be given due consideration, as the ultimate aim of punishment is not merely retribution but the transformation of individuals into law-abiding members of society.
The Court concluded that it was unable to uphold the findings of the Single Judge, who had declined to exercise jurisdiction in the matter. When the relevant enactments grant the authority to approve parole on the grounds of “sufficient cause,” the adequacy and sufficiency of the reasons for either granting or refusing parole are subject to judicial review in a writ proceeding. The Court is well within its jurisdiction to examine whether the rejection of parole was based on valid, relevant, and legally sustainable grounds or if it is influenced by extraneous, irrelevant, or mala fide reasons.
Therefore, the Court highlighted that in cases where an application for parole was rejected on manifestly extraneous or irrelevant grounds, the High Court, exercising its extraordinary writ jurisdiction under Article 226 of the Constitution, was empowered to intervene and issue appropriate directions. However, such intervention was warranted only if the impugned decision was demonstrably arbitrary, unreasonable, or unsupported by material evidence.
In light of the above discussion, the Court set aside the judgment passed by the Single Judge and directed the competent authority to grant parole to the Mohammed Nisham for a period of 15 days, subject to such conditions as the authority deemed fit and proper.
[Amal Nisham v. State of Kerala, Writ Appeal No. 553 of 2025, decided on 03-04-2025]
*Judgment Authored by: Justice Raja Vijayaraghavan V
Advocates who appeared in this case :
For Appellants: Bejoy Joseph P.J, M.Ramesh Chander (SR.), Govind G. Nair, Balu Tom, Bonny Benny
For Respondents: C.K.Suresh, Special Government Pleader
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