Legal notice to kerala cm


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Legal notice to kerala cm

  1. 1. 1 Thrissur Law Firm P.A. SIVARAJAN & SHANOJCHANDRAN.E, ADVOCATES ‘Mugal’, East of District Panchayath Office, Ayyanthole, Thrissur - 680 003, Ph. +91487 - 236 1912, Mob: 94479 70436 E-mail:-; LEGAL NOTICE Date: 09.08.2011To Mr. Ommen Chandy Chief Minister of Kerala Secretariat, Thiruvananthapuram Kerala Under instructions from our client, Mr. Mahesh Mohan, Law Student, Delhi University, Resident of 3 / 42 B, IInd floor, Mothi Nagar, New Delhi-110015 hailing from Kerala, we do hereby issue the following legal notice to you for the violation of the Oath to the office of Chief Minister and acts of favouritism carried out by you in the capacity of the Chief Minister of Kerala by releasing Mr. R. Balakrishna Pillai (CONVICT NO. 5990 Central Prison, Thiruvananthapuram) in violation of the provisions of Kerala Prison Rules 1958 and other relevant laws. Our client states that you have directed to release the convict on 05.08.2011 by the way of a Special Government Order, without any valid reason or explanation using your position as a Chief Minister in favour of your close friend and father of your cabinet colleague Mr. K.B. Ganesh Kumar, the sitting MLA of Pathanapuram and the present Minister for Forests and Environment, Sports and Cinema in the Government of Kerala. The Convict is a leader of Nair Service Society and is one of the UDF’s founder members. He is usually a key organiser of UDF election campaigns. In addition the Convict No.5990 also has a strong family backing in the bureaucratic circles. His daughter, Mrs.Usha is married to K Mohandas, a senior IAS Officer who is Secretary to the Government of India. Mrs. Bindu is married
  2. 2. 2to T Balakrishnan, IAS, who is Additional Chief Secretary (Industries) with theGovernment of Kerala and they also have considerably influenced you to violate theprovisions of law. You are aware that the Convict is currently undergoing rigorousimprisonment of one year after being convicted by the Supreme Court in theIdamalayar graft case. The Supreme Court confirmed the sentence passed by SpecialJudge Idamalayar Investigations Eranakulam in C.C. 1 of 1991 under Section 120-B,and 409 of Indian Penal Code and Sections 5(1)(c) and 5(2) of the Prevention ofCorruption Act,1988, on 10th February 2011 . The Convict was sentenced to one-year imprisonment for abusing his position in the award of contract for theEdamalayar hydroelectric power project. An apex court bench of Hon’ble Justices P.Sathasivam and B.S. Chauhan reversed the Kerala High Court judgment whichacquitted all the three. The apex court while allowing appeal also imposed a fine ofRs. 10,000 on each of the three convicts. You are also aware that the present order of conviction was the result of along legal battle waged by former Kerala Chief Minister Shri. V.S. Achuthanandan. Asminister for power, the Convict had awarded contracts for construction of a powertunnel and surge shaft in the Idamalayar hydroelectric project at extraordinarily highrates. It led to a revenue loss of Rs. 2 crore to the Kerala State Electricity Board.Thereafter, the Convict surrendered on 19th February 2011 and was sent toPoojappura Central Jail when the court issued Non- Baillable Warrant. Our client further states that even though, the Hon’ble Supreme Court hadconvicted your friend to rigorous imprisonment, because of your interference therewas nothing rigorous about the sentence he served. He was permitted food fromhome, and was provided with a coat, bed, mosquito repellent, even an air cooler inviolation of the provisions of law. It is also to be noted that the Kerala Prison Rules,specifically bars ‘A -Class’ facilities (special food and amenities, jail uniform notcompulsory, etc.) to those convicted for corruption. Our client further states that hewas permitted to use his personal mobile phone (+919447155555) from the prisonand had been in constant touch with you and other Cabinet Ministers andbureaucrats throughout his confinement. It is further brought to your notice that under Rule 452 of Kerala PrisonsRules, two types of leaves are available, ordinary and emergency. Rule 453 provides
  3. 3. 3for ordinary leave. Under Sub Rule (1), well behaved prisoners sentenced toimprisonment for one year and above and who have served out actually 1/3rd ofthe sentence or two years, whichever is less, are eligible for ordinary leave. Underclause (d) every petition for leave under the rules shall be accompanied with areport from the Sub Inspector of Police concerned, on the repercussions on the lawand order situation, if the prisoner is released on leave, particularly his own safety aswell as that of others, the possibility if any, of the prisoner absconding, instances ofprevious misconduct on his part when on leave earlier and all such other relevantpoints. The Superintendent of the Jail shall give his specific recommendation withdue reference of the conduct of the prisoner in prison, his previous history inrelation to leave, possibility of his absconding and also the aggregate number ofdays of leave he has already enjoyed. Under Sub Rule (2) of Section 453, ordinaryleave shall be granted up to a maximum of thirty days at a time. Under Sub clause(iv) of clause (h), prisoners suffering from unsoundness of mind or contagiousdiseases are not eligible for leave. The note there under provides that in the case ofprisoners mentioned in the above item, eligibility should be decided in accordancewith the opinion of the Medial Officer attached to the prison. Chapter 26 of the Rules with respect to leave specifies only two kinds ofleave i.e. emergency and ordinary. As per the above rules the maximum period ofemergency leave at a stretch is only for a period of 15 days and the ordinary leave upto a maximum of 30 days at a time vide Rule 453. Rule 452 B also provides that aprisoner once released on leave of any kind will not be eligible for a subsequentrelease on leave until the completion of six months of actual imprisonment to becounted from the date of his last return from leave. Emergency leave in Rule 455 isan exception to this as the same is confined to 15 days as noted above and thegrounds are death or serious illness of a near relative. Our client further state that despite the above mentioned provisions of law,the Convict who is a part of the ruling UDF in Kerala is supposedly serving a one-yearrigorous imprisonment sentence for corruption has been out of jail for about 75 daysout of 169 days served. At the time of poll campaign the UDF openly declared that ifthe front comes to power you will release the above named Convict from the jail. Soon after the polls, the Convict was released on ‘emergency parole’ tonurse his sick wife. Thus on 20th April, after 60 days of prison life, the Convictemerged from prison in full media glare and had a traditional feast at home with his
  4. 4. 4‘sick wife’ in the presence of television cameras. The Convict was served a notice bythe additional DGP of jail administration for violating parole conditions by talking tothe media. Thereafter, the Convict was granted 10 days of parole but extended it byanother 12 more days. The Convict reported to prison on 11th May and was againgranted after a week for another 10 days of parole. And it was widely reported inmedia that the Convict had refused to accept conditional parole, which would barhim from public speaking. Your government obliged, and granted unconditionalparole as desired by the convict. On the morning of 19th May, the Convict came outof Poojappura central jail, stepped into his BMW, went home, met UDF leaders,visited the Nair Service Society headquarters, held discussions with NSS leaders andoffered floral tributes at the samadhi of Mannathu Padmanabhan, a prominentleader of the Nair community. This time too, while his parole was for 10 days, hespent 23 days outside by getting further extension. That you as the Chief Minister of Kerala in charge of the Department of Homeand Prison had acted beyond your powers to grant parole of more than themaximum permitted number of days for a prisoner convicted to one year ofimprisonment in order to oblige a coalition ally and a senior member of UDF, whichis a clear violation of your Oath to the office of Chief Minister. It is further allegedthat, you have abused your official power and position as a ‘Public servant’ bywillfully committing an act in contravention of law in force with an intention to showundue favour to a Convict for illegal gratification. This act of yours has seriouslytarnished the esteemed office of the Chief Minister. It is also brought to your notice that you in your position as Chief Minister ofKerala with additional charge of the Department of Home and Prison had acted infavour of Convict No. 5990 to protect your Ministry and to ensure the support of theConvict’s party and followers to your ministry. It is also stated that you have acted tothe tune of Mr. K.B. Ganesh Kumar who is a Minister in your Cabinet and Mr.T.Balakrishnan Additional Chief Secretary for political gains. That, it has also come to our notice that the Convict has been granted specialleave for treatment against the provisions of law and that the same wasunwarranted, as the home page web portal of Kerala Prisons claims that it isequipped to provide wholesome and hygienic food to prisoners in addition toSpecialty and Super Specialty Medical Care to prisoners lodged in jails. Even thoughGovernment hospitals including the Medical College, Trivandrum in the capital city of
  5. 5. 5Kerala are well equipped to meet any medical emergency, the Convict was permittedby means of a special G.O to seek Five Star treatment in a renowned private hospitalequipped and specialised to cater to such needs of the Convict. Our client states that Kerala Pradesh Congress Committee President, yourCabinet colleagues, leaders of the ruling United Democratic Front visited the convictin jail and at his residence while he was on parole and assured that he will not besent back to the jail. For endorsing the same you also visited his house few daysbefore the Special Government Order in full media glare. Our Client further states that the treatment provided to the Convict in aprivate hospital could only be viewed as strategy to neutralise the sentence by theelected machinery of the state which is bound by the Constitution to execute thesentence handed down by the courts. It is unbecoming of an elected Government toresort to illegal measures to release a convict before completing the term. Our client further stated that, he is respecting the rights available to theconvict including the right for medical treatment within the parameters of KeralaPrison Rules and you are entitled to issue a special order if the necessary treatmentis not available inside the Prison or any other Government Hospitals in the state ofKerala. Interestingly, the convict was never admitted in any hospital while he was onparole for 75 days in the course of his imprisonment. In the visuals available with themedia the public has witnessed that there is no contagious disease to the convictwhich warrants his immediate hospitalisation in FIVE STAR HOSPITAL of his choice. Itis also a matter of public knowledge that the Convict had undergone an ayurvedicmassage at his residence during his last parole which alone was the treatment heavailed during the entire period of his alleged imprisonment. It is further stated that you as the Chief Minister of the State of Kerala hadacted over the board to ensure the safety, tenure and existence of your Ministrywhich is running on a slender majority this inter alia amounts to receiving illegalgratification in the form of support to your ministry as a motive or reward for doingan official act in the exercise of your official functions. You are hereby informed that your act amount to corrupt practices asdefined in Prevention of Corruption Act 1988 and that you have flagrantly violatedthe positive direction and conviction order issued by the Hon’ble Supreme Court in
  6. 6. 6Criminal Appeal No.350 of 2006 whereby it confirmed the conviction and sentencepassed by Special Judge Idamalayar Investigations Ernakulam in C.C. 1 of 1991 under Section 120-B,and 409 of Indian Penal Code and Sections 5(1) (c) and 5(2) of the Prevention ofCorruption Act, 1988, on 10th February 2011 and reduced sentence for one yearrigorous imprisonment and fine Rupees 10,000/- . You are duty bound to keep theconvict inside the prison as per law. In the above circumstances we hereby call upon you to withdraw the saidGovernment Order with immediate effect and to and send the convict to the prisonand constitute a Medical Board including specialist Doctors of high repute fromoutside Kerala to conduct an independent examination and to suggest the necessarytreatment to the Convict and to ascertain whether the treatment for the allegedailment is available inside the Prison or in the Govt. Hospitals in Kerala. It is furtherdirect that you may refrain from initiating any act of favouritism towards Convict No.5990 and to treat him at par with other Prisoners in conformity with the KeralaPrison Rules, failing which, we have instructions to initiate appropriate legal actionagainst you under the provisions of Prevention of Corruptions Act 1988 and alsounder Contempt of Court Act before the Hon’ble Supreme Court. Dated this the 9th day of August, 2011 P.A.SIVARAJAN, ADVOCATE