Gujarat High Court
Sanjivani Balvant Salasker vs State Of Gujarat on 19 December, 1995
Equivalent citations: (1996)2GLR580
JUDGMENT K.J. Vaidya, J.
1. Rule. Mr. J.A. Shelat, the learned A.P.P. waives service of the Rule. Earlier, on 14-12-1995, when this matter came up for admission before us, notice was issued to the respondents making it returnable on 16-12-1995 with the following observations:
1. Whether any Member of the Legislative Assembly and/or Corporator of Municipal Corporation and for that purpose even anyone elected members of Parliament or Panchayat has any right to recommend "temporary bail" or "parole" to the convict-prisoner and indirectly attempt to influence and thereby interfere with the discretion of the Court and for that matter even the discretion of any other statutory authorities? This in short is indeed the most important question that has arisen for our consideration in this case at the admission stage, in the background of the following fact-situations.
2. Sanjivani Salasker by this Misc. Criminal Application under Section 389 of the Criminal Procedure Code, 1973, has moved this Court inter alia praying for temporary bail to her husband Balvant @ Shyam Salasker undergoing life imprisonment at the central prison, Vadodara, precisely on two grounds, viz., (i) to perform the "VARSI" ceremony of her mother-in-law, and (ii) to find out suitable match for her daughter who is of marriageable age. In support of this, she has relied upon two certificates both dated 6-12-1995, issued by (1) Mr. Bhupendra Lakhawala, M.L.A. from Vadodara City, and (2) Mr. Yogendra Sukhadia, Chairman, Standing Committee, Vadodara Municipal Corporation. It appears that Balvant @ Shyam Salasker is one of the convict-prisoners alongwith 17 other accused who came to be convicted for the alleged offences punishable under Sections 302, 324, 147, 148, 149, 34, 120-B of I.P. Code, Section 135 of the Bombay Police Act, 1951, Section 25(1)(A) of the Arms Act, and Sections 3 & 5 of TADA Act, and sentenced to R.I. for life for committing murder of Dinesh Ramanlal Pathak, Editor of "Sandesh" (Gujarati Daily) published from Vadodara, by the judgment and order dated 31-3-1995 rendered in Sessions Case No. 171 of 1994 passed by the learned Addl. Sessions Judge, Vadodara.
3. Now, whether to release a prisoner on temporary bail/parole or not is entirely a matter, in the first instance, within the judicial discretion of the Court, and in the second instance, the discretion of the competent authorities under the relevant statutory provisions, which is required to be exercised strictly only on the basis of the well established norms such as (i) antecedents of accused, (ii) police report, (iii) remarks sheet of the convict-prisoner submitted by the jail authorities regarding his jail conduct, (iv) overall background of the case reflecting gravity and seriousness of the offence in which murder/other offences took place and (v) the ultimate overall submissions based thereupon made by the learned A.P.P. in-charge of the case. This is the only ordinary permissible legal compass within which the Court/authority exercises its discretion whether the prisoner should be released on temporary bail/ parole or not. Under the circumstances, we are simply stunned, surprised and shocked to note that of all, none other than the sitting M.L.A. of the State and the Chairman of the Standing Committee, Vadodara Municipal Corporation have dared recommending us for releasing a notorious criminal Balvant Salasker on parole/bail, which as parole is not available in criminal appeals pending before the Court, the petitioner has pressed into service for getting temporary bail, and thereby indirectly ventured and tried to influence the discretion of this Court. This illegal, irresponsible, unbecoming practice and that too at the hands of the elected representatives of people is highly reprehensible as it is simply unthinkable that any right-minded politician would ever do, even think even !! No responsible, right thinking citizen more so any elected representative of the people, be it M.P., M.L.A., Corporator or Councillor would ever imagine even of doing something to influence the Court and that too, in favour of the criminal which is against the public interest.
4. This Court has come across several such cases in the past where, even the State Minister, while granting parole on the basis of the recommendation of M.L.A.S and M.P.s have been criticised and cautioned without any reservation. It appears that the message of the Court in the decision rendered firstly in the case Hasmukh D. Prajapati v. State of Gujarat reported in 1995(1) GLR 727 in particular at page 732 - Para 47 and secondly, in the case of Lilavatiben Daulatsinh v. State of Gujarat decided on 25-8-1995 Special C.A. No. 779 of 1994 has still not percolated further to reach the M.L.As. Corporators, etc. !! In the instant case, the concerned M.L.A. and the Chairman of the Standing Committee, ought not have been oblivious of the fact that the convict-prisoner is involved in a very sensational murder case, where Dinesh Ramanlal Pathak, Editor of "Sandesh" was murdered. We take it, though it is indeed too difficult, that perhaps the concerned M.L.A. and the Chairman of the Standing Committee were not aware of this fact, that the prisoner was involved in one of serious sensational cases of political murder, else they would not have dared to influence the Court and concerned statutory authority by giving the certificates in question !! Further, so far as the certificate issued by Mr. Bhupendra Lakhawala is concerned, it is in a printed form, which creates serious doubt as to in what manner, perhaps he is trying to influence other authorities also in a similar way !! We warn all such concerned irresponsibles to please stop now and here, else be ready for the consequences that may fall upon them when found indulging in some such illegal practices, as found in the instant case ! Any such wilful attempts to influence the discretion of Court is undoubtedly interfering with the Administration of justice, and can be treated as Contempt of the Court. To recommend release of any criminals by concerned M.L.A. or Corporator or thereby by any elected representative of the people either on temporary bail or parole, to any Court or the competent authorities is not only, not the field and subject-matter of their public-service but the same is outright illegal and contemptuous interference with Administration of justice in particular the judicial proceedings of the concerned Court !!
5. We make it clear that we have indeed the greatest respect for the M.Ps, M.L.As and Municipal Corporators without whom no democracy can indeed ever function. In fact, the Legislature, Executive and the Judiciary are but indispensable, essential limbs, organs of the State and all the three have the common pursuit, goal to be aimed at and followed, viz., the maximum good of the maximum people on the basis of justice, the basic rights of the people flowing from the Constitution. On this count, there is not and there indeed cannot be any dispute. In fact, the role of each one of these three is complimentary drawing its ultimate strength, right, light and inspiration from the Constitution which is quite earmarked and well-defined. But that does not and certainly cannot mean that the concerned M.P.M.L.A. or Corporator can ever be permitted to exceed his/her limitations and try rather dare to influence the discretion of the High Court or in a given case even that of other competent authorities by overreaching, overriding the relevant police opinion and jail record prepared by the statutory functionaries. Accordingly, the concerned politicians should take a special note of the fact that Administration of justice is not a field to project their idiosyncrasies and influences, may be in a given case it is for a good cause. Courts decide the cases strictly on merits and not on some hunch or favour or impressions of the concerned so-called public servants of the society. When we made this position clear in equivocal terms in the open Court, Ms. M.S. Sharma, learned Advocate appearing for the petitioner sought permission firstly to withdraw the aforesaid two certificates saying she was sorry to rely upon the same, and secondly reliance placed upon the same. Now, we have indeed no hesitation in granting the permission to withdraw so far as placing of reliance on the certificates is concerned, but so far as the withdrawal of the said two certificates dated 6-12-1995 issued by the concerned M.L.A. and Chairman Standing Committee from the record is concerned, we refuse permission to withdraw the same. Not only that but at this admission stage itself we would like to express our strongest disapproval of trying to interfere with the Administration of justice to be precise this Court proceedings or for that purpose even any other statutory functionaries, by such chit recommendations, which what ought we don't know perhaps has the potentiality to expose themselves to nexus with criminals which may incidentally create a serious problems of breach of public order and/or law order when such prisoners are released on bail or parole as the case may be ! In fact, but for the fact that the learned Advocate for the petitioner has sought permission to withdraw the prayer for temporary bail on the basis of the aforesaid two certificates being pressed into service, we were just quite inclined to issue notices to the concerned M.L.A. and the Chairman of the Standing Committee, as indisputably they have indeed no right, business to influence the decision on criminal cases whether pending before the Court and/or for that purpose even before any other statutory functionaries under the concerned departments. Further, still taking into consideration the fact that M.Ps, M.L.As, Corporators, etc. are elected representatives of the people, they are supposed to refrain from side-lining the cause of justice and public interest by issuing certificates recommending parole/bail as the case may be in favour of CRIMINALS !! Once again, it may be stated and re-emphasized with respect to all concerned that the internal Administration of justice is none of the business of the elected members to illegally trespass into. Quite discreet and responsible M.L.As M.Ps and Corporators, surely know this and take enough care not to do or overdo anything which is against law and overall public interest, or in any other way which impairs their personal political image and reputation in eyes of those people who have elected them as their worthy representative in good faith.
6. We giving benefit of doubt take it that it was perhaps an immature misadventure, not knowing the hard consequences of their act that the concerned M.L.A. and the Chairman, Standing Committee, issued the certificates as above, and we accordingly condone the same more particularly because firstly this appears to be first misdeed and secondly, the same is not pressed in service by the learned Advocate for the petitioner ! But in future if such misadventure is repeated, the concerned M.L.A. or the Corporator shall have to thank themselves if it boomerangs with grave consequential order from this Court upon them !! In this view of the matter, we denounce and refuse to take into consideration the attempted influence to colour our discretion indirectly. We accordingly warn all the concerned M.Ps. M.L.As and Corporators that in criminal matters which are pending in the Courts, or for that purpose even before any other statutory functionaries not to dare make any recommendations to release the accused on temporary bail/parole, because such recommendations are per se illegal being against the overall public interest and accordingly that not only amounts to the breach of trust of the people who elected them but the same also clearly amounts to influencing either the State Executive or the Judiciary as found in the instant case liable to stern legal action including that of the contempt proceedings under the Contempt of Courts Act. Incidentally, in overall public interests, when any accused, anti-social or for that purpose on his behalf any of his friends, family members or relatives try to approach concerned M.L.As, Corporators to help obtaining illegal bail/parole by issuing recommendation on character base certificate of the prisoner, they should be bold enough to resist, discourage, denounce any attempt made upon them, as yielding to such illegal requests would easily make them liable for explanation and consequential action by the Court !!
7. Whatever we have come across in this matter is indeed extremely distressing and serious, and in that view of the matter, may we (i) earnestly request the Ho'ble Speaker, the Gujarat Legislative Assembly and (ii) direct the Chief Secretary, Government of Gujarat, Gandhinagar, respectively to issue appropriate circulars to Hon'ble Members of the Assembly and also to the Municipal Corporators through the respective Municipal Commissioners impressing upon them not to recommend bail, temporary bail and parole in favour of the accused or convict-prisoner either to the Court or for that purpose even to any other statutory functionaries which unquestionably amounts to interfering with the Court proceedings consequentially making them liable to the contempt proceedings under the Contempt of Courts Act, and accordingly, henceforth could be seriously viewed and liable for appropriate action by the Court. This in turn in a way will also help, assist concerned M.Ps, M.L.As, Corporators, who sometimes in a given case for whatever reasons feeling quite embarrassed and helpless to say no to persons approaching them for such illegal certificates, by saying that giving of such certificates recommendations for bail, temporary bail and parole is held to be illegal and banned by High Court, and accordingly therefore, they cannot do anything in the matter."
8. Earlier, when this matter was called out, Mr. J.A. Shelat, the learned A.P.P. had placed in our hands the remarks-sheet of the convict-prisoner, however, through oversight, he had failed to obtain the relevant police opinion as orally directed by this Court. Under the circumstances, on the learned A.P.P. seeking further time we had adjourned the matter till today, to call for the police opinion. Today Mr. Shelat has submitted the affidavit-in-reply filed by P.S.I.J.R. Vaghela, Karelibaug Police Station, Vadodara, annexing alongwith it at Annexure-A, report dated 17-12-1995 of the Police Inspector, addressed to the Police Commissioner, Vadodara, a copy of which is duly served on the other side and the contents of which have not been disputed by filing further rejoinder by the petitioner!! On the basis of this affidavit, learned A.P.P. submitted that the convict-prisoner Balvant @ Shyam Salasker is the brother-in-law of the notorious co-accused Raju Risaldar who subsequently succumbed to the injuries in police encounter. The learned A.P.P. further submitted that the said Raju Risaldar was a Mafia-Don and a leader of criminal activities carried on in Vadodara. Under the circumstances, not only that since the present accused was closely related to and associated with the said notorious anti-social possessing the hardened criminal mind, but as the learned A.P.P. further submitted that though the incident in question took place on 22-5-1993, his name disclosed in F.I.R. immediately still the applicant Balvant @ Shyam was not available for arrest and he could be arrested only on 17-9-1993, that is to say, practically after round-about four months!! In this view of the matter, the learned A.P.P. vehemently submitted that such type of dangerous criminals with a tendency of absconding, if released, it is very likely that he may not be available to serve out the rest of the period of sentence more particularly firstly when he is already sentenced to life, and secondly even the appeal though filed four months back, is not moved for admission till today ! As against this, it was pointed out by the learned Advocate for the petitioner that the accused as an under-trial prisoner was earlier released on temporary bail first for two days, i.e., from 7-1-1995 to 9-1-1995. Thereafter for further two days, i.e., from 14-1-1995 to 16-1-1995, and thereafter still for further four days from 16-1-1995 to 20-1-1995, and all the times he had surrendered in time. Ordinarily, this is indeed one of the good circumstance which can be taken into consideration, but at the same time, when the learned A.P.P. on the basis of the affidavit of the P.S.I. Vaghela coupled with the background of the case, expressed an apprehension that if the prisoner is released on temporary bail, there is likelihood of breach of peace and/ or also of the convict-prisoner absconding, the said apprehension in absence of anything contrary further shown or argued by the learned Advocate for the petitioner cannot be said to be unreasonable to be lightly ignored. Accordingly, we are not inclined to take any chance with such criminal Balvant by releasing him on the temporary bail at perhaps the gravest risk and prejudice to the Society!! In fact, on earlier three occasions also in background of the fact that Balwant had abscond as submitted by the learned A.P.P. he ought not to have been indiscreetly released on the temporary bail by taking chance with him !! If at all, the Court felt that the temporary release of the accused was quite indispensable on any genuine, reasonable human grounds made out, then also the accused at the most perhaps could have been so taken out of the jail for few hours, days, depending upon the proved grounds of emergency on which her temporary presence was required at home or hospital and that too under the tight fool-proof police escort !! It must be remembered that accused merely because he is condemned to undergo imprisonment in jail, his other constitutional rights do not come to end. He indeed still deserve human, sympathetic treatment whenever and as far as possible within the reasonable limit. But at the same time the concerned Court shall also not forget that while giving human treatment and accordingly showing mercy to the accused, it does not become child-like unwary victim of the misplaced understanding and sympathy at the cost of gravest risk of prejudice to the overall public interest !!
9. While parting, it once again requires to be stated that it is simply unfortunate that the concerned M.L.A. and the Corporator without trying to know the background of the prisoner as highlighted above by the learned A.P.P. have surprisingly dared to state and that too, before the High Court so far as M.L.A. Bhupendra Lakhavala is concerned that he "knew Balvant since last Jive years and that his conduct and behaviour is good." !! Is not this character certificate issued to Balvant per se patent falsehood and that too issued by none else than the elected representative of the Legislative Assembly? Similarly, so far as Corporator Yogendra Sukhadia is concerned, he too has recommended the BAIL despite or without trying to know the aforesaid anti-social background of the accused !! He also is an elected representative of the people. Now, whatever has unfortunately surfaced in this petition simply symptomises deep-seated melody in our democratic political system and one indeed feels sorry that unfortunately our Constitution does not contain provision to check out and 'recall' such elected but undemocratic members grossly abusing their office after they are elected, out to decry, desert and destroy democratic values and ultimately the faith of people in democracy itself !!! The question is, if on the proved ground of unfair practice, the election of the members, be it of the Legislative Assembly or Parliament, can be declared illegal and cancelled, why indeed the very same reasoning should not be reasonably extended in overall interest of the people to those elected members who, after getting themselves elected, turns their volte-face to the public-cause to those people who elected them and instead of becoming public service oriented, turns into hostile careerists on the basis of malpractice !! This Court is indeed quite conscious about the dignity and constraint it is required to exercise in making observations here and there while giving judgment. But having regard to the fact that High Court Judge is a constitutional functionary, interested and duty bound in well-maintained "Rule of Law" and "Democratic set-up", it is his/her equally bounden duty to fearlessly express whenever the opportunity indeed so demands of him of spotting and eliminating black spots eclipsing or even attempting to eclipse the said "Rule of Law" and "Democratic set-up" the ultimate basis of our Constitution without mincing any words. It is for this reason that this Court has been constrained and frank enough to observe as above. It is once again for this reason only that after the learned A.P.P. invited our attention to the prosecution case from the Judgment and order of conviction and sentence that in the earlier part of our order at the time of admission, we were constrained to make the observations. May be, the Father-founder of the Constitution unfortunately could not imagine that the ideal standards of public life based on selfless service and sacrifices of freedom-fighters would start fast shockingly losing colours after Independence changing the values of life and accountability to the people who have elected them and whom they represent !! How unfortunately indeed it is that with the passage of time two important words, virtues, namely, self-less service (public-service) and a mission of life in some given cases is conveniently found to have altered to "self-service" instead of "self-less service" and commission of life in place of mission of life ! Taking overall hard-stock of quite anxious situation sometime, we quite humbly believe that time has indeed come when pragmatism warrants that in overall interests of democracy and rule of law, that is to say to save them from ultimate extinction it will be never, never indeed be too late in day to take firm deterrent action against the erring misbehaving elected members either of Legislative Assembly or of the Parliament, by having special inbuilt safety provision regarding '"RECALL" of the concerned members, engrafting amendment in the Constitution in said regard, who are just to say the least are deadweight on public exchequer, slur on democracy and are just out to out and out to destroy the democratic ideals and values for which our Founder-fathers of the Constitution and freedom-fighters struggling with their blood, tears, toil and sweat, pinned their hopes and ultimately scarified lives. The only satisfaction to the good fortune of the country is fortunately even today there are indeed very many such ideal persons representing public in Assemblies as well as in Parliament, who will surely endorse the observations and view taken by this Court on the pages of this judgment.
10. In view of the aforesaid discussion, having regard to the facts and circumstances of the case, it is indeed not possible for us to accede to the request of the petitioner to release her husband Balvant @ Shyam Salasker on temporary bail. This application accordingly fails and is dismissed. Rule discharged.