Uttarakhand High Court
Raushan Nautiyal vs State Of Uttarakhand on 28 August, 2020
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (Criminal) No. 13 of 2020
Raushan Nautiyal ...................Petitioner
vs.
State of Uttarakhand ...............Respondent
Mr. Rajat Mittal, Amicus Curiae, for the petitioner.
Mr. G.S.Sandhu, learned Government Advocate, assisted by Mr. Pratiroop Pande,
learned Additional Government Advocate for the State.
Hon'ble Ravindra Maithani, J.(Oral)
This matter is heard through Video Conferencing.
2. A petition was received from Jail for parole from a convict, who was never granted parole for the last fifteen years. The writ petition was decided by this Court on 2nd July, 2020. In para 26 of the Judgement, this Court observed as under:
"26. Since, writ petition has been decided, this Court may conveniently close the chapter. But, if the Court does so, it may be termed to be as turning blind eye to a very vibrant and socially sensitive cause i.e. "RIGHT OF PRISONERS IN JAIL". In view of it, this court considers that some further steps should be taken to ensure that in future no other prisoner comes across to the difficulties, which have been faced by the instant petitioner. The further steps may include conducting an enquiry to the causes of denial of parole to the petitioner even on the occasions of demise of his family members etc. and also collection of data to study and ensure a mechanism, on the subject. Accordingly the following directions: -
26.1 Secretary Department of Home, Government of Uttarakhand, shall order a detailed enquiry by a superior Officer into the causes of denial of parole to the petitioner. In this enquiry all the applications of parole submitted by the petitioner shall be collected and the progress made on each of such applications shall be studied, with timelines. The final order on each of such 2 applications alongwith the name of officer who passed such order shall be made part of the enquiry report. The enquiry should be completed within four weeks from the date of communication of this judgement.
26.2 Secretary Department of Home, Government of Uttarakhand, shall also submit the following information to the Court within next four weeks:-
26.2.1. What is the procedure for deciding parole applications?
26.2.2. Is there any timeline for disposal of the parole applications? If so, what is it?
26.2.3. Whether the progress on disposal of parole applications is electronically monitored? If so, how it is done? (In fact, the website of Prison Department Government of Uttarakhand does not reveal it and it also does not reveal that this website is integrated with the NATIONAL PRISON INFORMATION PORTAL (www.eprisons.nic.in), even links of both the websites are not shared) 26.2.4. Cannot application for parole be also invited online?
And if so, the applicant (he may be a relative of the prisoner also) may get an electronically generated registration number.
26.2.5. Can a system be developed so that an applicant may track the progress of his parole application online? Can't it infuse transparency and speed in the system in deciding the parole applications? Cannot it then ensure timeline?
26.3. The Director General Prison shall submit information to this Court with regard to the prisoners who are in jail for more than five years, but, who have not been granted parole within last one year. (It shall also specify the period of sentence respectively awarded to each of such prisoners.) The information shall be submitted within next four weeks."
3. This court had sought information on three counts;
I. Firstly, in para no. 26.1, the Secretary, Department of Home, Government of Uttarakhand (Secretary Home), 3 was required to order a detailed enquiry by a superior Officer into the causes of denial of parole to the petitioner, in which, a report, is received, but it is incomplete. It has no Annexures with it; It does not reflect the name of the Officer who passed final order on the parole application(s) of the petitioner. (Is it a deliberate omission to perpetuate the wrongs?) II. Secondly, the Secretary Home was required to submit information as per para 26.2, as above.
The Secretary Home just deputed a Deputy Secretary to interact with this Court. He did not, it appears, consider it appropriate to look into the matter on his own; it appears that he did not consider it worth inviting his attention. He abdicated his duties, unmindful of the direction of this Court that he was not permitted to do so. This Court had required him to submit the information. Does it reflect the insensitivity of Mr. Nitish Jha, the Secretary Home, to the cause and his scant regard to the judicial process of this country?
Mr. Jeevan Singh, Deputy Secretary, filed an affidavit dated 14.08.2020. Annexure 2 to it is a report purportedly submitted in compliance to para 26.1, as above (the report). But, the report in full is not submitted. It has no Annexures with it. Even the report does not reveal the name of officers who passed final orders on the parole applications of the 4 petitioner. Even the report has page Nos. 7 and 15 missing. The report has been submitted in most casual manner. III. Thirdly, in para 26.3, Director General, Prison was required to submit some information, which he has submitted. The Court requests the Director General, Prison to furnish the details of the convicts who despite application(s) having been submitted for parole have never been granted the same? The details may be submitted to this Court on or before the next date fixed in the matter.
4. The report reveals shocking state of affairs. It reflects insensitivity of those, who are supposed to be much sensitive to the causes of the ones who cry for their voices to be heard, namely, a prisoner. This Court may like to quote from the judgment in the case of Maru Ram vs. Union of India and others, (1981) 1 SCC 107, in which the despair of a prisoner has been described, as hereunder:
"Their despair is best expressed in the bitter lines of Oscar Wilde 1:
I know not whether Laws be right, Or whether Laws be wrong, All that we know who lie in gaol Is that the wall is strong;
And that each day is like a year, A year whose days are long.
(emphasis added) But broken hearts cannot break prison walls. Since prisons are built with stones of law, the key to liberation too is in law's custody. So, counsel have piled up long and learned arguments punctuated with evocative rhetoric. But 1 The Ballad of Reading Gaol 5 Judges themselves are prisoners of the law and are not free to free a prisoner save through the open sesame of justice according to law. Even so, there is a strange message for Judges too in the rebellious words of Gandhiji's quasi-
guru David Thoreau 2:
"The law will never make men free; it is men who have got to make the law free. They are the lovers of law and order who observe the law when the government breaks it.""
5. The Court requested to find out the causes and the reasons as to how the parole applications, filed by the petitioners were dealt in the past. The report apparently shows that many wrongs (sin?) were committed and the attitude of the State administration appears to ignore those wrongs and not to bring the actual facts on record; not to reveal names of the wrongdoers (if any).
6. Just to quote, in para 3 of the report a reference is made that on 27th October, 2015 an application for parole of the petitioner was moved for attending the last rites of her mother. (In fact, it is Annexure 4 to this petition; the petitioner had requested that in police custody he may be permitted to attend the last rites and bid a final farewell to his mother.). According to the report, the District Magistrate, Dehradun, (DM) initially denied having received such an application. But, when jail authorities gave details as to how the application was delivered at the office of DM, it was accepted by the DM, that such a letter was received on 27th October, 2015.According to the report, the parole application dated 27-10-2015 was delivered at the 2 Henry David Thoreau : Slavery In Massachusetts, 1854 6 camp office of DM on 27-10-2015 by Brij lal , the brother of the petitioner. The state, it appears, had no other mode for forwarding the parole application or the brother of the petitioner thought that perhaps, he may expedite the process, by delivering the letter on 27-10-2015. But, DM did not attend the letter. Unfortunately, the brother of the petitioner could not secure the presence of his brother at the cremation of his MOTHER. On 28-10-2015 the petitioner submitted another application for parole for performing pind-dan/terhevi (post death rituals) .The report further gives shocking picture. According to it, on 30th October, 2015, on this application, a report was sought by DM from Senior Superintendant of Police, Dehradun (SSP) and Joint Director, Law, Dehradun.
7. DM received parole application initially on 27-10- 2015.He did not decide it. Another parole application was received by him on 28.10.2015 but he acts on it on 30.10.2015. He again lost two valuable days. The application for parole was for attending last rites. DM let the occasion go initially. DM sought a report on 30.10.2015. The page no. 7 of the report is missing. There is no information when SSP gave report and when finally DM passed order on parole application dated 27.10.2015 of the petitioner. Why DM denied parole when rules permit parole under such contingencies?
8. At page 13 in the report at a glance, the summary of parole applications is given. It is an attempt to cover up the wrongs. In Serial no. 3 on parole application dated 27.10.2015 it is recorded that kadachit 7 (perhaps) due to holiday, decision could not be taken by the DM. WHY? The last rites are also performed on holidays. They generally do not wait for any working day.
9. Who was the DM on 27th October, 2015? Who was the SSP on 28th October, 2015? Why, Secretary, Home has not spared some of his valuable time to peruse the report, which was prepared under the directions of this Court, by one of the Officers of the Home Department, as deputed by him? Why no steps were taken by the Secretary Home on this report? Why he did not consider further examining the matter? Why complete report is not filed? Let the report be filed alongwith all the Annexures.
10. This court would enquire this matter on its own, and if required suitable action shall be taken against the DM for his apparent gross dereliction of duties. He was a public servant of a democratic country, where rule of law prevails. He is guided by the law of the land. He is responsible for his acts and omissions.
11. In a country, which has got its independence long back, a prisoner is not able to bid last farewell to his deceased mother. He is not able to perform her last rites due to insensitivity of the people who are supposed to extend help to him at that hour of need.
12. What system has been put in place now? Today, if a convict files an application seeking parole on the ground that his mother has died and he may be permitted to attend her last rites 8 tomorrow morning, how such application will be processed? Will the application again be kept lying on the desk of the some public servant for days together so as to let the occasion pass by? Have we learnt any lesson from the case of the present petitioner? Merely, the report suggest that a letter has been written to NIC to prepare a software. Will the convicts have to wait for the software to be prepared? Has the administrative machinery been mobilized to address such contingencies? If so, what mechanism has been put in place and who is to supervise it?
13. Mr. Nitish Jha, Secretary Home is directed to address all the issues as indicated in this order, particularly, in para 8 and 12, as above, point wise, by filing an affidavit on or before 8th September, 2020. He need not remain personally present.
14. List this matter on 9th September, 2020.
15. The order must be mailed by tomorrow to Mr. Nitish Jha, the Home Secretary, State of Uttarakhand, for compliance.
16. Let a copy of this order be also sent to the Director General, Prisons, Uttarakhand.
(Ravindra Maithani, J.) 28.08.2020 Kaushal