Karnataka High Court
Sri Venkataramana Bhat vs The State Of Karnataka on 25 March, 2022
Author: S.G. Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2022
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.23608/2021 (GM-POLICE)
BETWEEN:
1. SRI VENKATARAMANA BHAT
S/O SHANKARA BHAT
AGED 36 YEARS
R/AT PIPELINE ROAD
YASHWANTHPURA
BENGALURU URBAN
BENGALURU-560086.
NOW IN THE CENTRAL
PRISON
HAVING CTP NO.12385
PARAPPANA AGRAHARA
BENGALURU-560100.
2. SMT. B N NAGASHRI
W/O VENKATARAMANA BHAT
AGED ABOUT 32 YEARS
R/AT PIPELINE ROAD
YASHWANTHPURA
BENGALURU URBAN
BENGALURU-560086.
...PETITIONERS
(BY SRI K RAVISHANKAR, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY
DEPARTMENT OF HOME
VIDHANA SOUDHA
BENGALURU-560001.
2
2. THE COMMISSIONER OF POLICE
BENGALURU CITY
INFANTRY ROAD
BENGALURU-560001.
3. THE CHIEF SUPERINTENDENT
CENTRAL PRISON
PARAPPANA AGRAHARA
BENGALURU-560100.
4. THE DIRECTOR GENERAL OF
POLICE
AND INSPECTOR GENERAL OF
POLICE
KARNATAKA PRISON
CORRECTIONAL SERVICES
BENGALURU-560100.
5. THE INSPECTOR OF POLICE
YASHWANTHAPURA POLICE
STATION
YASHWANTHAPURA
BENGALURU-560086.
...RESPONDENTS
(BY SRI M VINOD KUMAR, AGA FOR R1-R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
POLICE REPORT DATED 01.12.2021 ISSUED BY THE R-5 VIDE
ANNEXURE-F TO THE WRIT PETITION; QUASH THE IMPUGNED
ENDORSEMENT DATED 06.12.2021 ISSUED BY THE R-3 VIDE
ANNEXURE-G TO THE WRIT PETITION AND DIRECT THE R-3
AND 5 TO RECONSIDER THE P-1 DATED 18.11.2021 VIDE
ANNEXURE-D.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
The petitioners are before this Court under Article 226 of the Constitution of India praying for a writ of certiorari to quash the police report dated 01.12.2021 issued by the 5th respondent bearing No.YPS/CC/2021 (Annexure-F); to issue a writ of certiorari and quash the impugned endorsement dated 06.12.2021 issued by the 3rd respondent and for a writ of mandamus directing 3rd and 5th respondents to re-consider the 1st petitioner's application (Annexure-D) dated 18.11.2021.
2. Heard Sri K. Ravi Shankar, learned counsel for the petitioners and Sri M. Vinod Kumar, learned AGA for respondents 1 to 5. Perused the writ petition papers.
3. Learned counsel for the petitioners would submit that 1st petitioner was acquitted of the offences punishable under Sections 302 and 201 of IPC in S.C.No.135/2011 on the file of the Principal Sessions Judge, Bangalore Rural District, Bangalore. On appeal in Criminal Appeal No.990/2014 this Court by 4 judgment dated 17.03.2021 convicted the petitioner for the offences punishable under Sections 302 and 201 of IPC and further it is submitted that 1st petitioner is in appeal before the Hon'ble Apex Court, questioning the conviction. The 1st petitioner on conviction is in prison from 02.09.2021 and during trial also, was in custody for three years and 8 months. The 1st petitioner made an application on 18.11.2021 to the 3rd respondent- Superintendent of Jail seeking general parole. The 3rd respondent obtained report from the jurisdictional police and based on the said report dated 01.12.2021, the 3rd respondent issued endorsement dated 06.12.2021 rejecting the application of the 1st petitioner for general parole. Challenging the same the petitioners are before this Court.
4. Sri Ravishankar, learned counsel submits that endorsement of the 3rd respondent is wholly illegal and opposed to the Karnataka Prisons and Correctional Services Manual, 2021 (for short 'the Manual'). It is submitted that 1st petitioner is entitled for general 5 parole and without considering Clause 635 of the Manual, the 3rd respondent issued impugned endorsement dated 06.12.2021. Further learned counsel for the petitioners would also submit that 1st petitioner while seeking general parole also assigned reason that his wife is unwell and as his wife had to undergo spinal cord operation. Thus it is submitted that 3rd respondent has not taken any independent decision, but merely based on the report of the 5th respondent, endorsement is issued. It is submitted that as the 3rd respondent has not applied his mind, the endorsement requires to be set aside with a direction to the 3rd respondent to consider the 1st petitioner's application for parole afresh.
5. Learned AGA on the contrary submits that in terms of Rule 191 of the Karnataka Prisons Rules, 1974 (for short 'the Rules') the 3rd respondent is required to take advise of the local jurisdictional police. Learned AGA would submit that Rule 191(2)(d) of the Rules prescribes the procedure for considering the application 6 for parole. Thus he justifies the endorsement issued by the 3rd respondent.
6. On going through the impugned endorsement it is seen that 3rd respondent based on the report of the 5th respondent rejected the application of the 1st petitioner for parole. The 3rd respondent is required to apply his independent mind to the application of the 1st petitioner, based on the report of the local police. Clause 635 and 636 of the Manual reads as follows :-
"635. Statutory Provision;
i. Section 55 of the Karnataka Prisons Act, 1963 and Rule 191 of the Karnataka Prisons Rules, 1974 confers on State Government or any authority empowered by it the power to release prisoners temporarily;
ii. General Parole and Emergency Parole to inmates are progressive measures of correctional services. The release of a prisoner on leave not only saves him from the evils of incarceration but also enables him to maintain social relations with his family and the community.7
iii. It also helps him to maintain and develop a sense of self-confidence. Continues contacts with family and the community sustain in him a hope for life.
iv. The provisions for grant of parole should be liberalized to help a prisoner to maintain a harmonious relationship with his family. The privilege of parole should, of course, be allowed to selective prisoners on the basis of well-defined norms of eligibility; v. General and Emergency Parole cannot be claimed as a matter of right but it is a concession granted to the convicted prisoner; vi. Director General of Prisons and Correctional Services reserves the right to debar or withdraw any prisoner or category of prisoners from the concession of any parole. vii. The expense of journey to and from his place of stay for general parole or emergency parole shall be borne by the prisoner concerned;
viii. The period spent on general parole or emergency parole shall not count as sentence;
ix. The prisoner will be liable and recalled immediately to prison in case he violates any of the conditions by the Director General of Prisons and Correctional Services;8
x. A register and separate file shall be maintained in Prison;
xi. A person can give surety for two or more prisoners.
636. Objectives of Parole;
i. To enable the inmate to maintain continuity with his family life and deal with family matters and settlement of life after release; ii. To enable him to maintain and develop his self-confidence, constructive hope and active interest in life;
iii. Agricultural operations like sowing and harvesting;
iv. To make arrangements for admission of children in school/college/technical education;
v. Construction and repair of home;
vi. To make arrangement or to participate in the
family marriage;
vii. To save him from the evil effects of
continuous long prison life;
viii. To help him remain in touch with the developments in the outside world; ix. To enable him to overcome/recover from the stress and evil effects of incarceration; x. To motivate him to maintain good conduct and discipline in the prison.9
xi. To provide suitable option to woman prisoner to give birth to Child outside the Prison; if required.
xii. Any other extraordinary reasons on discretion of the head of the institution;"
A reading of the above clauses makes it clear that as to when the application of prisoners for general parole or Emergency parole is to be considered. Granting a parole also is one of the correctional measures as indicated in the above clauses. The authorities vested with the power to grant parole, while considering application shall keep in mind the objectives and purpose stated in the above clauses. Rule 191(2)(d) of Rules reads as follows :-
"191(1) ...................................................... (2)(a)..........................................................
(b).............................................................
(c)...............................................................
(d) The Superintendent shall ascertain from the Executive Magistrate of the concerned Taluk and the police concerned particulars of the sureties before accepting them and the genuineness or otherwise of the purpose for 10 which the prisoner has applied for grant of ordinary parole. The Executive Magistrate and the police concerned shall within fifteen days after the receipt of such reference, forward their report to the Superintendent without fail. If no adverse report is received within such period, it shall be presumed that the concerned police or the Taluk Executive Magistrate have nothing adverse to report against the prisoner regarding the request made by the prisoner. The Superintendent shall thereafter make his recommendation to the Inspector-General of Prisons, who shall examine and pass suitable orders for release of prisoner on such parole subject to the conditions specified in clause (c)."
A reading of the above Rules makes it clear that Jail Superintendent shall ascertain from the Executive Magistrate of the concerned Taluk and the police concerned particulars of the sureties before accepting them and the genuineness or otherwise of the purpose for which the prisoner has applied for grant of ordinary parole. It requires the Executive Magistrate and Police concerned to submit a report within fifteen days after 11 the receipt of such reference, forward their report to the Superintendent without fail. If no adverse report is received within such period, it shall be presumed that the concerned police or the Taluk Executive Magistrate have nothing adverse to report against the prisoner. The Hon'ble Apex Court in the decision ASFAQ Vs. STATE OF RAJASTHAN AND OTHERS reported in (2017) 15 SCC 55 laid down certain guidelines for release of prisoner/convict on parole. The relevant paragraphs 12, 22 and 23 reads as follows :-
"12. Many State Governments have formulated guidelines on parole in order to bring out objectively in the decision making and to decide as to whether parole needs to be granted in a particular case or not. Such a decision in those cases is taken in accordance with the guidelines framed. Guidelines of some of the States stipulate two kinds of paroles, namely, custody parole and regular parole. "Custody parole" is generally granted in emergent circumstances like:
i. death of a family member;
ii. marriage of a family member; iii. serious illness of a family member ; or iv. any other emergent circumstances.12
22. Another vital aspect that needs to be discussed is as to whether there can be any presumption that a person who is convicted of serious or heinous crime is to be, ipso facto, treated as a hardened criminal. Hardened criminal would be a person for whom it has become a habit or way of life and such a person would necessarily tend to commit crimes again and again. Obviously if a person has committed a serious offence for which he is convicted, but at the same time it is also found that it is the only crime he has committed, he cannot be categorized as a hardened criminal. In his case consideration should be as to whether he is showing the signs to reform himself and become a good citizen or there are circumstances which would indicate that he has a tendency to commit the crime again or that he would be a threat to the society. Mere nature of the offence committed by him should not be a factor to deny the parole outrightly.
Wherever a person convicted has suffered incarceration for a long time, he can be granted temporary parole, irrespective of the nature of offence for which he was sentenced. We may hasten to put a rider here viz. in those cases where a person has been convicted for committing a serious offence, the competent authority, while examining such cases, can be well advised to have stricter standards in mind while judging 13 their cases on the parameters of good conduct, habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquility, etc.
23. There can be no cavil in saying that a society that believes in the worth of the individuals can have the quality of its belief judged, at least in part, by the quality of its prisons and services and recourse made available to the prisoners. Being in a civilized society organized with law and a system as such, it is essential to ensure for every citizen a reasonably dignified life. If a person commits any crime, it does not mean that by committing a crime, he ceases to be a human being and that he can be deprived of those aspects of life which constitute human dignity. For a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. [See Sunil Batra (2) v. State (UT of Delhi), Maneka Gandhi v. Union of India and Charles Sobraj v. Supt., Central Jail.] "
7. Based on the report the Jail Superintendent has to take a decision. Further the Jail Superintendent has to examine the request for parole based on the report, whether release of the petitioner on parole affects peace 14 in the society. If there is no such apprehension, the petitioner would be entitled for parole. As the endorsement would not indicate consideration of the report and independent application of mind by the 3rd respondent, I deem it appropriate to set aside the endorsement (Annexure-G) bearing No.BCP/J3/505/2020-21 dated 06.12.2021 and to direct the 3rd respondent to consider the request of the petitioner for parole as per the 1st petitioner's application (Annexure-D) dated Nil and D1 dated 26.11.2021 afresh, and pass appropriate order.
8. Hence, the following order :-
a. The endorsement (Annexure-G) bearing No.BCP/J3/505/2020-21 dated 06.12.2021 is quashed.
b. The 3rd respondent is directed to consider the request of the petitioner for parole under Annexure-D dated Nil and D1 afresh, keeping in mind the observations made above and pass 15 appropriate order within a period of 15 days from the date of receipt of a copy of this order.
With the above observation, the writ petition is disposed of.
Sd/-
JUDGE NG* CT:bms