Chattisgarh High Court
Devendra Dewangan @ Chotu @ Bau vs State Of Chhattisgarh on 9 November, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
Neutral Citation
2023:CGHC:28378-DB
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 457 of 2023
Devendra Dewangan @ Chotu @ Bau, S/o Gaindram Dewangan, Aged
About 27 Years, R/o Daupara, Arjunda, Police Station Arjunda, District
Balod, Chhattisgarh, District Balod, Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through Secretary, Department of Home
Affairs, Mahanadi Bhawan, Atal Nagar, Naya Raipur (C.G.).
2. Superintendent of Jail, Central Jail, Durg, District- Durg (C.G.).
3. Collector, Balod, District - Balod (C.G.).
---- Respondents
(Cause-title taken from Case Information System) For Petitioner : Mr. Prasoon Agrawal, Advocate. For Respondents/State : Mr. Gurudev I. Sharan, Government Advocate.
Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 09.11.2023 Heard Mr. Prasoon Agrawal, learned counsel for the petitioner. Also heard Mr. Gurudev I. Sharan, learned Government Advocate, appearing for the respondents/State.
2. The present writ petition has been filed by the petitioner with the following prayers:
"10.1 That, this Hon'ble Court may kindly be pleased to Neutral Citation 2023:CGHC:28378-DB 2 quash the order dated 24.04.2023(P-1) passed by the office of respondent No. 3 and direct the respondent No. 3 to release the petitioner on leave as applied by him for a period of 14 days.
10.2 Any other relief, which this Hon'ble Court deems, fit in the facts and circumstances may also be granted in favour of the petitioner."
4. The petitioner's application for grant of leave (parole) has been rejected by the Collector, Balod, District- Balod (C.G.) by order dated 24.04.2023 (Annexure P/1) on the recommendation of the concerned Senior Police Officer, Balod, District- Balod (C.G.) holding that the petitioner's release is likely to lead quarrel and dispute by the petitioner with the victim's family and petitioner is likely to commit cognizable offence.
5. Learned counsel for the petitioner would submit that Rule 4 of the Chhattisgarh Prisoner's Leave Rules 1989 (for short, 'the Rule, 1989') as well as Rules 6, 9, 11 & 12 of the Rules, 1989 have not been considered by the Collector while deciding the petitioner's application for grant of leave on parole and it was rejected summarily, therefore, the order passed by the Collector dated 24.04.2023 is liable to be set aside and the petition deserves to be allowed.
6. Learned Government Advocate would support the impugned order and oppose the prayer made by learned counsel for the petitioner.
7. We have heard the learned counsel for the parties, considered their rival submissions made hereinabove and perused the impugned order and the material available on record.
Neutral Citation 2023:CGHC:28378-DB 3
8. In order to decide the petitioner's application it would be appropriate to notice the relevant provisions contained in Rule, 1989 which state as under:-
"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 offences 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.
6. Sanctioning Authority for first leave.--(a) 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. The District Magistrate shall enter in the warrant the number of days that will be required for the journeys by the shortest practicable route to and from the place at which during his leave the prisoner proposes to reside or if he proposes to visit more than one place, the fartherest place from the Jail which he proposed to visit.
Note.--The District Magistrate is responsible for the proper carrying out of these instructions. He may of course, consult the District Superintendent of Police on the advisability of granting the leave. The Superintendent of Police should also obtain the opinion of the Gram Panchayat of the village, where the prisoner resided before conviction and send to the District Magistrate along with his report. But the responsibility for the action is that of the District Magistrate. He should use his discretion and should refuse to grant leave only in cases in which he is satisfied that release is fraught with danger to the public safety. Security should be demanded only when it is really necessary, for example, when there is reasonable apprehension that the prisoner will break leave. When security Neutral Citation 2023:CGHC:28378-DB 4 is required, the District Magistrate of the place where the surety resides should be asked by the releasing District Magistrate to accept the surety and not call the surety to his own headquarters. If the prisoner intends to visit another district, where his near relatives reside, the concerning District Magistrate shall make necessary enquiries from the District Magistrate of that District before sanctioning the leave.
(b) If the District Magistrate considers that the grant of leave to the prisoner is undesirable in the public interest, he shall intimate his opinion to the Superintendent, who shall inform the prisoner that his request has been rejected.
9. Conditions for release on leave - After satisfaction regarding prisoner's eligibility for leave, Competent Authority shall release such prisoner on leave on the following conditions :-
(1) During the period of his leave, he shall not go to any place other than those places which have been mentioned in his leave application. (2) During his leave he shall neither commit any crime nor involve in any such act that may have its bearing on public interest.
(3) After spending his leave he shall present himself at the Jail from where he was released, but in the event of accident, disease, natural calamity, such prisoner can surrender himself at any other nearest Police Station with proper ground.
Note :- Provided that no prisoner shall claim leave as a right for leave granted under these rules.]
11. Arrest of a prisoner in event of breach of conditions.- (1) If any prisoner does not present himself on the evening of fixed date of his return, he shall be treated as prisoner at large and an FIR shall be registered against him at the Police Station in whose jurisdiction concerning jail (where prisoner was expected to surrender) is situated, and concerned Station House Officer shall put up challan against escaped prisoner. Station House Officer shall initiate necessary actions as per provisions contained in Sections 82 and 83 of Criminal Procedure Code and information regarding such actions shall be sent to Jail Superintendent by him.
(2) If negligence regarding registering the FIR in case of such offence has been shown by police in spite of having received information from Superintendent of Jail under Rule 11 of the Madhya Pradesh Prisoner's Leave Rules, 1989, Police Superintendent shall inform Inspector General of Prisons after registration of such crime of the concerned Police Officer under Section 221 of Criminal Procedure Code.
(3) In the event of escape of prisoner during the period of leave, case shall be registered against the guarantor at concerned Police Station for abetment.
Neutral Citation 2023:CGHC:28378-DB 5 (4) In the event of escape of prisoner during leave Jail Superintendent shall submit application before the Court of Tahsildar for initiating actions regarding forfeiture of his security as well as attachment of guarantor's assets. On this application, Tahsil Court shall take necessary actions for attachment of assets.
12. Penalty for overstay.-If the prisoner returns to the jail of his own accord after the date fixed for his return he shall be admitted to the jail and the prisoner's return and the reason for the delay shall be reported immediately to the District Magistrate of the district in which the jail is situated, for his orders where the prisoner should be prosecuted. If it is not considered to prosecute, the Superintendent should hold an enquiry and may for good and sufficient reasons, award one of the following punishments:-
(a) Formal Warning.
(b) Forfeiture for a period not exceeding 3 months privileges of interview, receiving and sending letters.
(c) Degradation from higher to lower grade.
(d) Forfeiture of 5 days remission for each day's overstayal on leave which shall not exceed total period of his sentence inclusive of unexpired period of sentence.
9. A careful perusal of the aforesaid provisions would show that the petitioner's application for grant of parole is to be rejected when the petitioner's release on parole is detriment to public interest; and, as such, the District Magistrate is required to consider the opinion of the concerned Superintendent of Police on the advisability of granting the leave but the responsibility for action is that of the District Magistrate and he has to use his discretion and should refuse to grant leave only in cases in which he is satisfied that release is fraught with danger to the public safety. In Rule 9 of the Rules, 1989, sufficient safeguard has been provided for release on leave in shape of Rule 9 (2) that he shall not commit any offence during the period of parole and in Rule 11 of the Rules, 1989, steps to be taken in event of breach of conditions have been prescribed, whereas Rule 12 of the Rules, 1989, provides penalty for overstay. All these provisions have not been considered by the learned District Magistrate and summarily rejected the application basing its order on the recommendation made by the Senior Neutral Citation 2023:CGHC:28378-DB 6 Police Officer, making the order vulnerable.
10. In that view of matter, the order passed by the Collector, Balod, District- Balod (C.G.) by order dated 24.04.2023 is quashed and the Collector, Balod, District- Balod (C.G.) is directed to consider the petitioner's application afresh in the light of the aforesaid rules and pass a reasoned and speaking order within a period of six weeks from the date of receipt of copy of this order after considering the petitioner's application as per rules.
11. With the aforesaid observation / direction the instant petition stands disposed off.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Amita