Rohit vs The State on 11 May, 2022

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Delhi High Court - Orders

Rohit vs The State on 11 May, 2022

1. The instant petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 has been filed by the petitioners praying for issuance of writ in the nature of Certiorari and quashing the Order No. F.18/108/2020/HG/2074 dated 31st December, 2021, passed by the respondent and for issuance of writ in the nature of mandamus directing the respondent to release the petitioner on parole for a period of three months.

2. Mr. Vinayak Bhandari, learned counsel for the petitioner submitted that the petitioner has been convicted for the offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter "POCSO Act") vide judgment dated 12th February, 2020 and has been Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:11.05.2022 18:25:54 sentenced to undergo rigorous imprisonment for a period of 15 years vide order on sentence dated 15th February, 2020 in case FIR No. 616/2015 registered at Police Station I. P. Estate, Delhi.

3. Learned counsel for the petitioner submitted that the petitioner is presently confined in Central Jail No. 4, Tihar, New Delhi and has already undergone incarceration of about 6 years and 4 months in actual, without remission, out of 15 years. The petitioner approached the Competent Authority for grant of parole for a period of 3 months to reconnect family relations and re-establish social ties. However, this application for parole filed before Home (General) Department, Govt. of NCT of Delhi was rejected by the Department on 31st December, 2021, observing that there were no special circumstances that existed for grant of parole as the convict has been convicted under the POCSO Act. This order of dismissal has been appended as Annexure A.

4. Learned counsel for petitioner has placed reliance on Ravi v. State of Rajasthan, 2019 SCC OnLine Raj 5911, Mangal v. State of Rajasthan, 2019 SCC OnLine Raj 5912, Asfaq v. State of Rajasthan & Ors. (2017) 15 SCC 55, Pilluwa@Pappu vs. State, WP (Crl.) 1780/2020 dated 2nd November, 2020, Chhedi Paswan v. State of NCT of Delhi 2021 SCC OnLine Del 2230 and Rakesh @ Diwan vs. State of NCT of Delhi, W.P. (Crl.) 480/2022 dated 5th May, 2022.

5. Per contra, Mr. Ranbir Singh Kundu, learned ASC for the State vehemently opposed the instant petition and submitted that the petitioner is not entitled to the benefit of parole since he has been convicted for grave and heinous offence. It is submitted that as per the Delhi Prison Rules, 2018, there is a bar on grant of parole to those convicted under POCSO Act. The Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:11.05.2022 18:25:54 petitioner has also been under Section 6 of the POCSO Act. Hence, he is not entitled for a parole since there are no special circumstances subsisting.

6. Heard learned counsel for the parties and perused the record.

7. This Court has perused the rejection order as well as the nominal roll dated 4th February, 2022.

8. The Home (General) Department, Govt. of NCT of Delhi while rejecting the parole application of the petitioner observed as under:

" .. the request in respect of the said convict for grant of parole has been considered and rejected by the Hon 'ble Lt. Governor, NCT of Delhi in view of the followings:-

1. As per Rule 1211 of Delhi Prison Rule-2018, which provide that:- "In the following cases, parole shall not be granted, except, if in the discretion of the competent authority special circumstances exist for grant of parole;

(VII). If prisoner is convicted under POCSO; In this case, as per crime detail, said convict held guilty for committing offence punishable under POCSO A CT. Further, no special circumstances exist for grant of parole.

2. Further, as per report received from the Office of DG (Prisons), the grant of parole is not recommended to the above said convict ... "

9. Rule 1211 does not permit a prisoner convict under POCSO Act for parole. It would be useful to reproduce Rule 1211 for ready reference as below"

1211. In the following cases, parole shall not be granted, except, if in the discretion of the competent authority special Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:11.05.2022 18:25:54 circumstances exist for grant of parole;

I. Prisoners convicted under sedition, terrorist activities and NDPS Act.

II. Prisoners whose immediate presence in the society may be considered dangerous or otherwise prejudicial to public peace and order by the District Magistrate of his home district or there exists any other reasonable ground such as a pending investigation in a case involving serious crime.

III. Prisoners who are considered dangerous or have been involved in serious prison violence like assault, outbreak of riot, mutiny or escape, or rearrested who absconded while released on parole or furlough or who have been found to be instigating serious violation of prison discipline as per the reports in his/her annual good conduct report.

IV. Convicted foreigners subject to prior approval of Ministry of Home Affairs & Ministry of External Affairs and having valid permission to stay in India.

V. Prisoners suffering from mental illness, if not certified by the Medical Officer to have recovered, VI. If the prisoner is convicted of murder after rape; VII. If the prisoner is convicted under POCSO;

VIII. If prisoner is convicted for multiple murders whether in single case or several cases.

IX. If prisoner is convicted for Dacoity with murder. X. If prisoner is convicted for Murder after kidnapping for ransom.

XI. If the prisoner is convicted under Prevention of Corruption Act.

XII. If the case is investigated by the Central Bureau of Investigation or Central Agency."

10. The above stated provision of the Delhi Prison Rules, 2018 does not create an absolute bar and the competent authority is vested with a discretion even in cases as stated above for the grant of parole. It is clear that the Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:11.05.2022 18:25:54 rejection order did not consider the special circumstances which were required to be considered for the grant of parole.

11. For consideration of grant of parole, the Competent Authority should keep in mind the purpose of parole as listed out in Rule 1200 of the Prison Rules. It is reproduced as under :

"1200. The objectives of releasing a prisoner on parole and furlough are:

i. To enable the inmate to maintain continuity with his family life and deal with familial and social matters, ii. To enable him to maintain and develop his self-confidence, iii. To enable him to develop constructive hope and active interest in life, iv. To help him remain in touch with the developments in the outside world, v. To help him remain physiologically and psychologically healthy, vi. To enable him to overcome/recover from the stress and evil effects of incarceration, and, vii. To motivate him to maintain good conduct and discipline in the prison."

12. In the present case, the petitioner has been in judicial custody for 6 years and 4 months. He was granted parole on 5th November, 2020 by a coordinate bench of this Court for a period of four weeks which was further extended for a period of four weeks vide order dated 21 st December, 2020 and had never violated any condition of the parole. The long incarceration would have disrupted his familial and social life and would have impacted him physically and mentally.

13. As per the Nominal Roll, the petitioner was allotted the work of Ward Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:11.05.2022 18:25:54 Sahayak and his conduct during the last year has been satisfactory. Further, he has been granted the relief of Parole on two earlier occasions. He has neither misused the relief granted nor has he jumped parole at the said occasions. Moreover, he has, in all these times, maintained good conduct and discipline in the prison. There is no reasonable apprehension that the petitioner, if released on parole, may not return back to jail to undergo the remaining portion of the sentence awarded to him, or that he may escape the law, or that he may once again indulge in the same activity. Since the appeal has been already disposed of, there is no possibility of his intimidating or harming those who have deposed against him. In fact, the Status Report does not reveal any such possibility.

14. Keeping in view above facts and circumstances, the petitioner is directed to be released on parole for a period of one month from the date of his release on his furnishing personal bond in the sum of Rs. 25,000/- with one surety of like amount to the satisfaction of the Jail Superintendent/Trial Court subject to the conditions as follows:-

(a) he shall under no circumstances leave India without prior permission of the Court concerned;

(b) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case;

(c) he shall provide his mobile number(s) and keep it operational at all times;

(d) he shall commit no offence whatsoever during the period he is on bail;

(e) he shall intimate the Court concerned in case of Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:11.05.2022 18:25:54 change of residential address and/or mobile number; and

(f) he shall not, in any circumstance, make any contact with the victim and family members of the victim.

15. The petitioner shall surrender on the expiry of the aforesaid period before the Jail Superintendent/Court concerned.

16. With the aforesaid directions, the petition stands disposed of.

17. Copy of this order be sent to Jail Superintendent for compliance.

CHANDRA DHARI SINGH, J MAY 11, 2022 gs/ms Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:11.05.2022 18:25:54

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Delhi High Court - Orders