Chattisgarh High Court
Dhaneshwar @ Nanu vs State Of Chhattisgarh on 16 March, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 318 of 2021
Birendra @ Bindu S/o Santosh, Aged About 32 Years R/o.
Village Jhingradongri, P.S. Kukdur, Tahsil Pandariya, District
Kabirdham (Chhattisgarh). Through Nearest Friend Shyamu
Yadav, S/o Milan Yadav, Aged About 35 Years, R/o Indira
Nagar, Ward No. 08, Dhaur, Selud, Durg, District Durg
Chhattisgarh. --- Petitioner
Versus
1. State of Chhattisgarh through its Principal Secretary, Department
of Home (Jail) Mahanadi Bhavan, Mantralaya, Naya Raipur,
District Raipur Chhattisgarh.
2. The Jail Superintendent Central Jail Durg, District Durg
Chhattisgarh.
3. The District Magistrate Kabirdham, District : Kawardha
(Kabirdham), Chhattisgarh
4. The Superintendent of Police Kabirdham, District : Kawardha
(Kabirdham), Chhattisgarh --- Respondents
WPCR No. 389 of 2021
Dhaneshwar @ Nanu S/o Devsharan Verma Aged About 22 Years R/o Village- Kolendra, P.S.- Dongargarh, District- Rajnandgaon, Chhattisgarh. Through Nearest Friend Shyamu Yadav, S/o Milan Yadav, A/a-35 Years, R/o Indira Nagar, Ward No. 8, Dhaur, Selud, District : Rajnandgaon, Chhattisgarh ----
Petitioner Versus
1. State of Chhattisgarh through its Principal Secretary, Department of Home (Jail), Mahanadi Bhawan, Mantralaya, Naya Raipur, District- Raipur, Chhattisgarh.
2. The Jail Superintendent Central Jail, Durg, District- Durg, Chhattisgarh.
3. The District Magistrate Rajnandgaon, District- Rajnandgaon, Chhattisgarh.
4. The Superintendent of Police Rajnandgaon, District- Rajnandgaon, Chhattisgarh. --- Respondents WPCR No. 479 of 2021 Pramod Kumar Sen S/o Lekhram Sen Aged About 33 Years R/o 2 Village Mokha, Post And P. S. Gurur, District Balod Chhattisgarh Through Nearest Friend Shyam Yadav, S/o Milan Yadav, Aged About 35 Years, R/o Indira Nagar, Ward No. 08, Dhaur, Selud, District Durg Chhattisgarh --- Petitioner Versus
1. State of Chhattisgarh through its Principal Secretary, Department of Home (Jail), Mahanadi Bhawan, Mantralaya, Atal Nagar, Nawa Raipur District Raipur Chhattisgarhs
2. The Jail Superintendent Central Jail Durg, District Durg Chhattisgarh
3. The District Magistrate Balod District Balod Chhattisgarh
4. The Superintendent of Police Balod District Balod Chhattisgarh
--- Respondents For the Petitioners : Ms. S.P. Sukhdeo, Advocate. For the State/Respondents : Mr. Ghanshyam Patel & Mr. Ayaz Naved, Govt. Advocates and Mr. Ashutosh Mishra, P.L. Hon'ble Shri Justice Goutam Bhaduri Order on Board 16 .03.2022
1. Since the prayer sought in all the three petitions are one and the same, they are disposed of by this common order.
WPCR No. 318 of 2021
2. WPCR No. 318 of 2021 is against the order dated 26.09.2020 whereby the application to release the applicant on parole of 10 days was rejected by the District Magistrate Kabirdham Annexure P-1.
3. It is stated that pursuant to the order/judgment of conviction passed under sections 302, 147, 149 of IPC petitioner Birendra @ Bindu is undergoing jail sentence 3 in Central jail Durg since 12.10.2012. WPCR No. 389 of 2021
4. WPCR No.389 of 2021 is against the order dated 02.06.2021 whereby the application to release the applicant Dhaneshwar @ Nanu on parole of 10 days was rejected by the District Magistrate Rajnandgaon vide Annexure P-1.
5. It is stated that pursuant to the order/judgment of conviction/sentence passed u/s 302/201 of IPC, the petitioner is undergoing sentence in Central Jail, Durg since 19.03.2019.
WPCR No. 479 of 2021
6. WPCR No.479 of 2021 is against the order dated 15.03.2021 whereby the application to release the applicant Pramod Kumar Sen on parole of 10 days was rejected by the District Magistrate Balod vide Annexure P-1.
7. It is Stated that pursuant to the order of conviction and sentence passed u/s 302 IPC, petitioner Pramod Kumar Sen is undergoing sentence in Central Jail, Durg since 01.10.2017.
8. Learned counsel for the petitioners submits that having entitled to be released on parole as per the C.G. Prisoners Rule, 1989, petitioners Birendra @ Bindu; Dhaneshwar @ Nanu and Pramod Kumar Sen moved respective applications for grant of grant of parole of 10 days and the said application were forwarded by the respective Police Stations for temporary release of the petitioners. In turn, the Superintendent of Police to 4 whom initially the recommendation was made to release on parole forwarded it to the District Magistrate of the respective Districts i.e., Kabirdham in case of Birendra @ Bindu, Rajnandgaon in case of Dhaneshwar @ Nanu and District Balod in case of Pramod Kumar Sen. It is contended that in all the 3 cases, family members of victim have objected to grant of bail and accordingly on the basis of statements of victims families, their applications for parole were rejected. It is contended that such recording of the statement of family of the victims is not contemplated under C.G. Prisoners Rule 1989. He further referred to case laws laid down in Dadu alias Tulsidas Vs. State of Maharashtra, (2000) 8 SCC 437; Inder Singh v. The State (Delhi Administration) 1978 SCC (Cri) 564 and Jeevan Verma Vs. State of M.P. 2002 (1) MPLJ 347 and would submit that in view of the principles laid down by the Supreme Court, the applications of the petitioners for grant of parole ought to have been allowed.
9. In the return filed by the State, a common defence is raised that all the petitioners have been sentenced to life imprisonment and the State Government has exercised its power conferred under section 31 of the Prisoners Act 1900 and the Rules made thereunder which are known as the Chhattisgarh Prisoners Leave Rules 1989 and eventually the rejection orders have been passed. That apart, an affidavit has been filed by one Pushpendra Patel who is posted as Law Officer at Central Jail Raipur in WPCR No. 389 of 2021 5 (Dhaneshwar @ Nanu Vs. State) wherein it is stated that during the period from March 2020 to 10th March 2022, a total 39 convicts/prisoners were granted parole and they did not surrender and remain absconding after completion of prescribed parole and in the affidavit it is disclosed that total 21 convicted/prisoners, who were not surrendered, have been admitted in jail with the help of police force. The affidavit further went on to show the fact that during the period of parole, 11 convicted/ prisoners again committed offence, for which, FIRs have been registered. The documents annexed to the affidavit shows that different prisoners were released from Central Jails of Bilaspur, Ambikapur, Jagdalpur, Durg, Raipur.
10. What is relevant here at this juncture is that the State Government has enacted specific Rules known as "The Chhattisgarh Prisoner's Leave Rules, 1989 in respect of grant of leave to the prisoners in exercise of its powers conferred upon it under the provisions of the Prisoners Act, 1900. Rule 4 of the Rules of 1989 deals with the conditions of leave. For ready reference the said clause is reproduced herein below :
"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 6 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;
(e) He should furnish security to the satisfaction of the Releasing Authority if such security is demanded by the Releasing Authority."
11. If we take into consideration the Note attached to Rule 6
(a) & (b), it clearly reflects that there is only one ground on which leave can be refused by the District Magistrate and it is 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 cogent reasons. Further perusal of Rule 6 also clearly depicts that before the District Magistrate takes a decision on the application for grant of temporary leave he has to consult the District Superintendent of Police who in turn has to obtain the opinion of the Gram Panchayat of the village where the prisoner resides. Rule 6(b) contemplates that 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.
12. As has been held by Supreme Court in Dadu alias Tulsidas Vs. State of Maharashtra, 2000 (8) SCC 437 , the parole is not a suspension of sentence and the convict continues to be serving the sentence despite granting of parole under the statute, rules, jail manual or the 7 Government orders.
13. Here in the instant case, objections have been raised by the family members of the respective victims, therefore, that was taken as the ground for rejection of parole. Though the rule does not contemplate the opinion of the family members of the victim for granting parole, but this Court cannot ignore the facts mentioned in affidavit which has been placed on record by the Law Officer, Central jail, Raipur that during the period of March 2020 to 10th March, 2022, total 39 convicted have been granted parole and no-body has returned their own after completion of period of parole. Thereafter 21 convicts were arrested with the help of Police and out of them, 11 have again committed offence while they were on parole, for which, FIRs were registered. Though the mistakes done by other prisoners cannot be passed on to the present petitioners, but considering the fact that the petitioners have been convicted for heinous offence and are serving the life sentence, the practical aspect of the matter cannot be completely side-lined that once the parole is granted, there is a tendency that the accused/ convict would be at liberty as appears from the number of defaults and this message might have spread among the convict people to get released in the garb of parole. So to release the convicts on parole, a balance has to be arrived at to maintain the social safety of general public and right of convicts.
14. Therefore, the state would be within its domain to re- 8
examine the application of each individual prisoner/ convict other than reasons of conviction after inquiring all the ancillary incidental aspects by evaluating the background of convicts and ensure/put-forth further safe-guard for his return and good behavior during parole. Further the State while allowing the application for grant of parole, may also impose the following conditions upon the prisoner and its surety :
(A) Conditions to be imposed upon surety while allowing the application for parole :
1. Surety should not have any criminal antecedents.
2. Surety should be from prisoner's family or close relatives (If there is no family member or close relative capable of taking surety, affidavit to this effect should be taken from in person standing as surety)
3. Amount of surety should not be less than Rs.50,000/-
4. Forfeiture of security amount, in case the prisoner absconds.
(B) Conditions to be imposed upon the prisoner while releasing him on parole :
1 (a) Prisoner shall inform Kotwar/Sarpanch (in case Prisoner is visiting village during parole) about his reaching the village and shall give his attendance daily before Kotwar/Sarpanch;
(b) In case prisoner is visiting Municipal area, he shall inform Ward members/Corporator about his arrival and shall also give daily attendance before him during the period of leave;
2 In case of failure on the part of prisoner to mark his attendance before Kotwar/ Sarpanch/ Ward member/ Corporator, they shall immediately inform the nearest Police Station about non-appearance/ Absence of the prisoner;
15. Accordingly it is ordered that the respondent State may 9 reconsider the applications of the petitioners for parole other than on the ground of rejection of objection from victim or family of victim and shall take into account the direction given supra.
16. With the aforesaid observations, these petitions stand disposed of.
Sd/-
GOUTAM BHADURI JUDGE Rao