Delhi High Court
Tota Ram vs State (G.N.C.T.) Of Delhi on 25 January, 2010
Author: V.K. Jain
Bench: V.K. Jain
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1824/2009
Date of Order: January 25, 2010.
TOTA RAM ..... Petitioner
Through Mr. Deepak Sharma, Adv.
versus
STATE (G.N.C.T.) OF DELHI ..... Respondent
Through Mr. Pawan Sharma with Mr. Praveen
Nagar, Advs.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
: V.K. JAIN, J. (Oral)
1. This is a petition under Article 226 of the Constitution of India challenging the order passed on 1.10.2009 by the respondent whereby request of the petitioner for grant of parole was rejected.
2. The petitioner was convicted under Section 302 and 307 IPC read with Section 34 IPC thereof. The appeal filed by him, being Crl. Appl. NO.883/2008, was dismissed by the Division Bench of this Court on 16.1.2009. The petitioner applied for parole on the ground that he W.P.(Crl.) 1824/2009 Page 1 of 5 want to file special leave petition before the Hon'ble Supreme Court against the order of the Division Bench of this Court dismissing the appeal filed by him. The request of the petitioner has been declined on the following grounds:
1. Adverse police report regarding breach of law & order.
2. The grounds taken by the convict could not be verified.
3. Grant of parole is primarily an executive function and, therefore, it is for the Government to consider the request made by a convict for grant of parole and pass appropriate order on it. If, however, it is shown that the order passed by the Government is based upon irrelevant considerations or on non-existing facts or is otherwise unsustainable in law, it is open to this Court, in exercise of its jurisdiction under Article 226 of the Constitution to quash such an order and direct the release of the convict on parole.
4. The appeal filed by the petitioner having been dismissed by a Division Bench of this Court, special leave petition before the Supreme Court is the last remedy available to him in law to ventilate his grievance. Hence, his anxiety to engage the best lawyer of his choice which he can, and to adequately brief him so as to enable him to effectively present his case before the Hon'ble Supreme Court cannot be disputed and in fact this is to be recognized and appreciated by the Government.
5. While deciding WP(Crl.) No..1749/2009 wherein parole was sought W.P.(Crl.) 1824/2009 Page 2 of 5 to file special leave petition before the Hon'ble Supreme Court, against an order dismissing the appeal filed by the petitioner, I inter alia observed as under:
"6. The request for grant of parole, to file SLP before the Hon'ble Supreme Court against conviction and sentence for a serious offence certainly stands on a stronger footing than the desire to maintain links with the society and to reunite with the family. Hence, ordinarily such requests ought to be allowed unless there are reasonable grounds which warrant taking a different view in a particular case. Such grounds may include:
i) A reasonable apprehension, based upon material available with the Government such as the circumstances in which the offence is alleged to have been committed by him and the other cases if any in which he is involved, that the petitioner, if released on bail may not return back to Jail to undergo the remaining portion of the sentence awarded to him;
ii) A serious apprehension of breach of law and order or commission of another offence by the petitioner if he comes out on parole;
iii) Past conduct of the petitioner such as jumping the bail or parole granted earlier to him;
iv) A reasonable possibility of the petitioner trying to intimidate or harm those who have deposed against him or their relatives.
It is neither possible nor desirable to exhaustively lay down all such grounds as would justify denial of parole in a particular case. Each case has to be examined by the Government dispassionately and with an open mind, taking into consideration all relevant facts and circumstances."
6. Coming to the grounds on which parole has been declined, when asked to elaborate the first ground on which parole has been declined, the learned counsel for the respondent could only say that the petitioenr has been convicted in a case of murder and attempt to murder. This is not the case of the respondent that the petitioner is involved in a number of cases. He is not claimed to be a history- W.P.(Crl.) 1824/2009 Page 3 of 5 sheeter or a desperate criminal. He has no conviction other than the conviction against which he proposes to file Special Leave Petition. He is not facing trial in any other case. In these circumstance there was absolutely no material before the Government from which it could be reasonably inferred that there was apprehension of breach of law and order in case parole is granted to the petitioner.
7. Coming to the second ground, I fail to appreciate what the Government could not verify. The ground taken by the petitioner for seeking parole that he wants to file a special leave petition before the Hon'ble Supreme Court. There is no way the Government could have known whether the petitioner actually intends to prefer special leave petition or not. His appeal having been dismissed, the presumption is that he is genuinely interested in filing a special leave petition against the order passed by this Court. Therefore, the second ground on which parole has been declined to the petitioner does not make any sense and was not a valid ground in law.
8. As regard the address of the petitioner, that stand verified as is evident from the status report which shows that the father and other family members of the petitioner are residing in village Jinzole, P.S. Kadar Chowk, District, Badayun, U.P. In these circumstances there seems to be unreasonable apprehension of the petitioner jumping the parole and not returning back to the jail. Another important aspect in this regard is that co- accused of the petitioner has already been granted parole by this W.P.(Crl.) 1824/2009 Page 4 of 5 Court vide order dated 10.8.2009. Since the petitioner is similarly situated, there can be no justification for declining parole to him.
9. For the reasons given in the preceding paragraphs, the impugned order is hereby set aside and the petitioner is directed to be released on parole after one week from today, for a period of four weeks from the date of release, subject to the following conditions:
1. He shall furnish a personal bond in the sum of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial court.
2. He shall mark his presence either in police station Krishna Nagar, Delhi, or in police station in jurisdiction of which his native place is situated at 10 a.m. on every Sunday.
3. He shall not visit any other place other than his native place.
4. He shall not try to contact or communicate in any manner with any of the witnesses of this case.
5. He will submit a copy of the special leave petition filed by him to the SHO, police station Krishna Nagar within four weeks from the date of his release and will communicate the name of the counsel who filed the special leave petition.
6. He shall comply with such other conditions as the Government may decide to impose upon to him in order to ensure that the petitioner does not jump parole.
The petition stands disposed of in the aforesaid terms.
V.K. JAIN,J
JANUARY 25, 2010
aj
W.P.(Crl.) 1824/2009 Page 5 of 5