Chattisgarh High Court
Shivkumar @ Netaji vs State Of Chhattisgarh on 12 September, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 155 of 2022
• Shivkumar @ Netaji S/o Shri Sukhiram Suryavanshi Aged About
47 Years R/o Aajad Chowk Mangala, Post- Mangala, Police
Station- Civil Line Bilaspur, District- Bilaspur, Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh Through- The Secretary, Home ( Jail)
Department, Mantralaya, Mahanadi Bhawan, Raipur,
Chhattisgarh
2. The Director General, Prisons And Correctional Services
Chhattisgarh, Head Quarter-Prisons And Correctional Services
Chhattisgarh, Raipur, Chhattisgarh
3. The Collector-Cum-District Magistrate Bilaspur, Chhattisgarh
4. The Senior Superintendent Of Police, Bilaspur, Chhattisgarh
5. The Jail Superintendent, Central Jail, Bilaspur, Chhattisgarh
---- Respondents
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For Petitioner : Shri Rishi Rahul Soni, Advocate For Respondents/State : Shri Vimlesh Bajpai, Govt. Advocate
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Hon'ble Shri Justice N.K. Chandravanshi Order On Board 12.9.2022.
1. The present petition has been filed by the petitioner against order dated 28.10.2021 (Annexure-P/1) passed by respondent No.3/The Collector-cum-District Magistrate, Bilaspur (CG) whereby the application for releasing the petitioner/convict on parole of 10 + 02 days including journey period has been rejected.
2. The petitioner is a prisoner, who has been convicted for commission of offence under Sections 450 & 376 of Indian Penal Code and was sentenced to undergo rigorous imprisonment for 07 years and to pay fine of Rs.200/- for offence under Section 450 IPC and to undergo RI for 07 years and to pay fine of Rs.200/- for offence under Section 376 IPC. He was on jail from 06.12.2001 to 05.12.2002 and presently he is in jail since 2 04.8.2020. He made an application for grant of leave under Rule 4 and 6 of the Chhattisgarh Prisoner's Leave Rule 1989 (henceforth 'Rule 1989'). On the said application, the District Magistrate called report from Senior Superintendent of Police, Distt. Bilaspur, who called report from Station Incharge, Police Station Civil Line, Distt. Bilaspur, who submitted adverse report stating therein that since the petitioner and the victim reside in the same locality, there is apprehension of happening any untoward incident and also there is possibility that the petitioner would abscond after being released on parole. He has also reported the objection raised by Ward Parshard as well as the victim in respect of granting parole to the petitioner. Relying upon the report, which was forwarded by Senior Superintendent of Police, Bilaspur, learned District Magistrate, Distt. Bilaspur by its order dated 28.10.2021 rejected the application reiterating the reasons mentioned by the Station Incharge, Police Station Civil Line Distt. Bilaspur, that on being released, there is apprehension of happening any untoward incident and also there is possibility that the petitioner would abscond after being released on parole.
3. Being aggrieved against that order, the instant writ petition has been filed.
4. Learned counsel for the petitioner would submit that the petitioner was, vide judgment dated 03.9.2022 passed by learned Sessions Judge, Bilaspur in Session Trial No.57/2002, convicted under Sections 450 & 376 IPC. Thereafter he was granted bail by this High Court and after deciding his appeal (CrA No.1081/2002), he has been sent to jail as the same was dismissed by this Court on 22.5.2020. However, in between i.e. 2002-2020, the petitioner was on bail and during that period, his release was not fraught with danger to public safety or he has not committed any other crime, hence, objections raised by the Ward Parsad and the victim that the release may lead to untoward incident in the locality, is baseless. It is further contented that Superintendent (Jail), Central Jail, Bilaspur, after finding other 3 conditions as provided in Section 4 of the Rules, 1989, had forwarded the application filed by the applicant alongwith his recommendation, despite that, the District Magistrate, Bilaspur has dismissed the application without considering the object of granting parole to jail inmates and as has been observed by Supreme Court in various cases and also the observations of Coordinate Bench of this Court in the matter of Rakesh Shende v. State of Chhattisgarh & others1, wherein it has been held that all aspects of criminal justice fall under the umbrella of Articles 14, 19 and 21 of the Constitution of India and, therefore, impugned order deserves to be set aside and the petition may be allowed.
5. Learned counsel for the State while opposing the the submissions made by counsel for the petitioner, would submit that petitioner has been convicted for the offence of house trespass and rape and has been sentenced for 07 years of imprisonment for each offence. He would further stated that the victim as well as the Ward Parshad have protested the release of the petitioner, therefore, objection raised by the Station Incharge, Police Station Distt. Bilaspur, could not be overlooked and on the basis of such objection, learned District Magistrate has rightly declined to exercise his power for grant of temporary release of the petitioner.
6. I have heard learned counsel for both the parties and considered their submissions and also perused the material available on record.
7. Having considered the rival contentions put forth on behalf of either side, what is relevant at this juncture is that the State Government has enacted specific rules in respect of grant of leave to the prisoners, in exercise of its power conferred upon it, under the provisions of the Prisoners Act, 1900. The said Rules in the State of Chhattisgarh are known as 'The Chhattisgarh 1 Writ Petition (Cr.) No. 29 of 2016, decided on 18.11.2016 4 Prisoner's Leave Rule, 1989'. Rule 4 of the Rules of 1989 provides the conditions of leave, which reads thus :-
"4. Conditions of Leave.--The prisoners shall be granted leave under sub-section (1) of Section 31-A of the Act on the following conditions, namely :--
(a) He fulfills the conditions laid down in Section 31-A of the Act;
(b) He has not committed any offence in jail between the date of application for leave and receipt of the order of such leave;
(c) The releasing authority must be satisfied that the leave may be granted without detriment to the public interest;
(d) He gives in writing to the Releasing Authority the place or places which he intends to visit during the period of his leave and undertake not to visit any other place during such period without obtaining prior permission of the Releasing Authority in that behalf; and
(e) He should furnish security to the satisfaction of the Releasing Authority if such security is demanded by the Releasing Authority."
8. Rule 6 provides that "if the District Magistrate, after making such enquiry as he may consider necessary, is satisfied that the request for grant of leave can be granted without detriment to public interest, he shall issue to the Superintendent a duly signed and sealed warrant in Form 'A' to the prisoner.
9. Note appended with Rule 6(a) provides that while considering the matter, District Magistrate may consult with District Superintendent of Police, who would also obtain the opinion of Gram Panchayat. Perusal of note attached to Rule 6(a) clearly reflects that there is only one ground on which leave can be refused by the District Magistrate i.e. only in case where he is satisfied that the release of the prisoner is fraught with danger to the public safety and under no other circumstances can the leave be refused as a matter of routine without any cogent reason.
510. The responsibility for the action under Rule 1989 has been entrusted to the District Magistrate, hence, it is expected that such responsibility be complied with considering the object of granting parole.
11. The object of granting parole is to make necessary efforts to rehabilitate a convict prisoner in the main stream of society based on "Karuna" (compassion) as well as on human consideration.
12. In the case of Poonam Lata v M.L. Wadhawan and others2, the Supreme Court while highlighting the object of parole has observed that "release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty or lessening of restrictions to a convict prisoner".
13. Similar matter had come up before the Madhya Pradesh High Court in 2002 and relying upon the aforesaid judgment of the Supreme Court, the Madhya Pradesh High Court in the case of Jeevan Singh Verma Vs. State of M.P. & Others, 2002 (1) M.P.L.J. 347, Hon'ble Justice Dipak Misra, as he then was, while deciding the case after referring to the provisions of the Prisoners Act held as under :
"7. Now the question that falls for consideration is whether the petitioner should be granted the benefit of parole or temporary release. In this context I may profitably refer to the decision rendered in the case of Inder Singh and Anr. v. The State (Delhi Administration) 1978 SCC (Cri) 564 wherein their Lordships emphasized on rehabilitation and quoted a passage from Lewis Moore with approval. The said passage reads as under :
"You cannot rehabilitate a man through brutality and disrespect. Regardless of the crime a man may commit, he still is a human being and has 2 (1987) 3 SCC 347 6 feelings. And the main reason most inmates in prison today disrespect their keepers, is because they themselves (the inmates) are disrespected and are not treated like human beings. I myself have witnessed brutal attacks upon inmates and have suffered a few myself, if he becomes violent. But many a time this restraining has turned into a brutal beating. Does this type of treatment bring about respect and rehabilitation? No.! It only instills hostility and causes alienation toward the prison officials from the inmate or inmates involved.
If you treat a man like an animal, then you must expect him to act like one. For every action, there is reaction. This is only human nature. And in order for an inmate to act like a human being, you must treat him as such. Treating him like an animal will only get negative results from him."
In the aforesaid case the Apex Court laid emphasis on the concept of 'Karuna' and directed that parole should be allowed to the convicts if they show responsibility and trustworthiness. To quote-
" Parole will be allowed to them so that theirfamily ties may be maintained and inner tensions may not further build up."
Thus parole has been treated as a curative strategy keeping in view the human dignity which is the quintessence of Article 21 of the Constitution.
14. In the present case, application for grant of leave/parole filed by the petitioner has been dismissed only on the ground that the victim as well as the Ward Parshad have raised objection that if the petitioner is released on parole, there may be a possibility of dispute between the petitioner and the victim and also possibility of happening untoward incident in the village, however, they have not stated any reasonable ground for their apprehension. It is also relevant to mention here that Superintendent, Central Jail, Bilapsur has recommended for grant of parole to the petitioner and as per the report of Station Incharge, Police Station Civil Line, Bilaspur, the petitioner is not a 7 habitual offender, he has no any criminal antecedent. It is also pertinent to mention here that as per learned counsel for the petitioner, the petitioner was on bail during the period 2002-2020 and he had not misused the bail granted to him and has not committed any crime with the victim or with others during that period. Moreover, Yogesh Suryavanshi and Smt. Sukvara Devi, who are relatives of the petitioner, have given undertaking that if the petitioner is released on parole, then he will be under their supervision and control.
15. Looking to aforesaid facts situations, only because the objection raised by the victim and the Ward Parshad, the same could not be used as a absolute barrier to grant leave to the petitioner, which is right created under Section 4 & 6 of the Rules, 1989, as has been stated in preceding paragraphs. Rules of 1989 have been enacted with certain object, therefore, application for grant of parole should be considered bearing in mind to those objects. Rejection of such application on any of the ground, which is not reasonable, the object of framing aforesaid Rule would be frustrated. Therefore, in the facts of the case, the petitioner is entitled to be released on parole as per Rules of 1989.
16. Consequently, the District Magistrate is directed to issue necessary release order granting leave / parole to the petitioner for the period applied for within a period of 15 days from the date of receipt of certified copy of this order. The District Magistrate while allowing the application for grant of parole to the petitioner, may also seek security as provided in Section 4 (e) of the Rules, 1989.
17. In the result, the petition stands disposed of with the above observation/direction.
Sd/-
(N.K. Chandravanshi) JUDGE Bini