Chattisgarh High Court
Omkar Verma vs State Of Chhattisgarh on 13 September, 2022
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
W.P. (Cr.) No. 643 of 2021
Omkar Verma, son of Gopal Verma, aged about 63 years, R/o. Village
Anyanawagaon, P.S. Dongargarh, District Rajnandgaon (C.G.)
Through : nephew Shyamu Yadav, son of Milan Yadav, aged about
35 years, R/o Indira Nagar, Ward No. 08, Dhaur, Selud, Durg, District
Durg (C.G.)
......Petitioner
Versus
1. State of Chhattisgarh, Through : Its, Principal Secretary,
Department of Home (Jail) Mahanadi Bhavan, Mantralaya, Naya
Raipur, District - Raipur (C.G.)
2. The Jail Superintendent, Central Jail, Durg, District - Durg (C.G.)
3. The District Magistrate, Rajnandgaon, District Rajnandgaon (C.G.)
4. The Superintendent of Police, Rajnandgaon, District Rajnandgaon
(C.G.)
---- Respondents
For Petitioner : Mr. S.P. Sahu, Advocate.
For Respondent : Mr. Gurudeo I. Sharan, Govt. Adv.
Hon'ble Mr. Justice N.K. Chandravanshi
Order On Board
13-09-2022
1. The petitioner has filed instant petition under Article 226 of the Constitution of India challenging the order dated 23.07.2021 (Annexure P-1) passed by Additional District Magistrate, Rajnandgaon whereby application filed by the petitioner under Chhattisgarh Prisoner's Leave Rule, 1989 (henceforth " the Rule, 1989") for grant of leave/parole has been rejected.
2. Facts, as projected by the petitioner, in nutshell are that he has been convicted for the offence under Sections 147, 148, 149, 427, 302 & 452 of the IPC and languishing in jail since 19.3.2019 as Prisoner No. 385/22. He 2 made an application for grant of leave / parole under the Rule 1989, but his application was rejected by Additional District Magistrate, Rajnandgaon vide order dated 23.07.2021.
3. Feeling aggrieved and dissatisfied with the said order, instant writ petition has been preferred.
4. Learned counsel for the petitioner would submit that after fulfillment of all the criteria prescribed under Section 31-A of the Prisoners Act, 1900, the petitioner applied for leave/parole as per Rule 1989, but his application was dismissed by Additional District Magistrate, Rajnandgaon only because family members of victim raised objection that if he will be granted leave, then their life may be in danger and on that basis, Superintendent of Police also opined not to grant leave/parole to the petitioner. It is further submitted that order impugned is arbitrary, illegal and against the law and aim & purpose of the Leave Rules, 1989. It is further submitted that village Sarpanch and reputed members of the Viilage have submitted no objection for granting leave/parole to the petitioner and the Surities are ready to keep him under their supervision and control, despite that Additional District Magistrate has dismissed his application without any clinching material available on record to show that release of the petitioner on parole is fraught with danger to public safety. It is further submitted that in similarly situated facts, co-accused of same offence, who is son of petitioner namely Shivkumar Verma was reconsidered pursuant to the order passed by the Coordinate Bench on 09.12.2021 passed in Writ Petition (Cr.) No. 642 of 2021 and he has been granted leave/parole, therefore, it is prayed that petition may be allowed by setting aside the impugned order. He placed reliance upon the judgments of this Court in the matters of Rakesh Shende v. State of Chhattisgarh & others 1 & Chatur Verma V. State of C.G. and others 2
5. Learned counsel for the State /respondents while supporting the impugned order would submit that since family members of the victim and Superintendent of Police have opined that life of family members may be put in danger, if he may be granted leave/parole, therefore, impugned order 1 W.P. (Cr.) No. 29 of 2016, decided on 18.11.2016 2 W.P. (Cr) No. 319 of 2021, decided on 20.09.2021 3 does not suffer from any perversity or illegality, which deserves to be upheld.
6. Heard counsel for the parties and perused the material available on record with utmost circumspection.
7. Perusal of the record would go to show that after fulfillment of criteria for grant of leave/parole by the petitioner, jail authority has referred the petitioner's application for grant of leave/parole to the District Magistrate. On the said application, the District Magistrate, Rajnandgaon called report from the Superintendent of Police and in turn, the Superintendent of Police called report from the Station House Officer, in turn after obtaining report from the Station House Officer, Police Station Dongargarh (Annexure R-1) and S.D.O. (Police), District Rajnandgaon, the Superintendent of Police forwarded his opinion (Annexure R-3) to the District Magistrate, Rajnandgoan, wherein it has been stated that reputed persons of the village/Sarpanch of Gram Panchayat have stated no objection for grant of leave/parole to the petitioner and proposed Sureties have also stated in their submissions that they are ready to keep petitioner in their supervision and control but victim's family has raised objection in grant of leave/parole to the petitioner stating therein that their life will be in danger, if petitioner is granted leave/parole. Vilage kotwar has also raised objection and on the basis of aforesaid objections, the Police have also raised objection with regard to grant of leave/parole to the petitioner but no any appropriate or cogent reasons have been assigned by them with regard to their aforesaid apprehension. Moreover, the Sarpanch of the village has made no objection to grant of leave/parole to the petitioner.
8. The purpose and object for grant of leave/parole to a prisoner has been considered in detail by this Court in the matter of Rakesh Shende v. State of Chhattisgarh & others (Supra) holding that power to consider and decide the application for grant of parole/leave has been conferred by the Rules to the District Magistrate, who consider the application taking into consideration the object and need to grant parole to the convicted persons and held in 22 & 23 as under :-
"22. As noticed herein-above, the power of parole has been conferred by the rules to the District Magistrate and the post 4 of District Magistrate is manned in the State of Chhattisgarh by a member of Indian Administrative Service. Therefore, the District Magistrate is required to exercise the power to consider the application for grant of parole. He has to take into consideration the object and need to grant parole to the convicted prisoners by applying their mind and come to a conclusion judiciously. The order passed by the District Magistrate in the instant case would show the complete non- application of mind, as by a cyclostyle order only name and number of prisoner has been inserted and it has been signed by the Additional District Magistrate. The manner in which the order has been passed by the District Magistrate in a mechanical manner is suggestive of betrayal of the confidence which the rule making authority reposed in the District Magistrate in conferring upon him to exercise the power to grant parole.
23. At this stage, it would be appropriate to notice the following binding observation made by the Supreme Court in the matter of Tarlochan Dev Sharma v. State of Punjab and others 3: -
"16. In the system of Indian democratic governance as contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage there own discretion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. No government servant shall in the performance of his official duties, or in the exercise of power conferred 3 (2001) 6 SCC 260 5 on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. ..."
9. In the instant case, although family members, police and Kotwar of the village have raised objection for grant of leave / parole to the petitioner but as has been stated above that no cogent reasons have been stated in this regard, wheras village Sarpancy has made no objection for grant of leave/parole to the petitioner.
10. It is also submitted by learned counsel for the petitioner that pursuant to the order dated 9.12.2021 passed in Writ Petition (Cr.) No. 642 of 2021, matter of petitioner's son namely Shivkumar Verma was re-considered by the District Magistrate and he has been granted leave/parole.
11. It is also pertinent to mention here that as per Memo dated 29.6.2021 issued by Station House Officer, Police Station Dongargarh, District Rajnandgaon (C.G.) (Annexure R-1), the petitioner is not a habitual offender and the petitioner/convict has no any criminal antecedents.
12. In view of above discussions and observations and also considering the object and need to grant parole to the convicted prisoners, as has been observed by the Supreme Court and this Court in the matter of Tarlochan Dev Sharma (supra) & Rakesh Shende v. State of Chhattisgarh (supra), respectively, this Court is of the considered opinion that the order passed by the District Magistrate (Annexure P-1) deserves to be quashed in exercise of jurisdiction of this Court under Article 226 of the Constitution of India and is accordingly quashed. It is directed that the respondent No. 3 shall re- consider the case of the petitioner for grant of leave/parole in accordance with law and principles of law laid down in the afore-cited cases within a period of 30 days from the date of production certified copy of this order.
13. The writ petition is allowed to the extent sketched hereinabove. There shall be no order as to costs.
Sd/-
(N.K. Chandravanshi)
D/- Judge
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