Gujarat High Court
Kumar vs State on 23 July, 2009
Author: D.H.Waghela
Bench: D.H.Waghela
Gujarat High Court Case Information System
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SCR.A/1377/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1377 of 2009
======================================
KUMAR
@ KARIM VALIMOHAMMED SANDHI(R)DEVPRA,ANANDNAGAR COLONY
Versus
STATE
OF GUJARAT AND OTHERS
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Appearance :
MR NM AMIN
with PARTY-IN-PERSON for Applicant.
MS
TRUSHA PATEL, APP for
Respondents.
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CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 23/07/2009
ORAL
ORDER
1. The petitioner has invoked Articles 14, 21 and 226 of the Constitution for the purpose of parole in the peculiar facts and circumstances of his case. The petitioner, appearing as party-in-person, is convicted and sentenced to life imprisonment by judgment and order dated 30th December 1998, and the appeal preferred therefrom is dismissed. Presently, the petitioner is released on furlough and has already applied for parole, while he is required to return to jail on 5.8.2009. It is stated on affidavit and not controverted by the State that the petitioner's son is suffering from blood cancer and he is having to visit for treatment the Cancer Hospital at Ahmedabad from Rajkot for four to eight times in a month. It is also stated that no one else in the family is in a position to make financial arrangement either for the ailing son or for the marriage of his daughter, who has reached marriageable age.
2. Since the application is made in vernacular and the petitioner is appearing as party-in-person, without any legal aid, learned counsel Mr.N.M.Amin was requested to assist as an amicus curiae. Mr.Amin has, after interviewing the petitioner and on instructions as also from the papers supplied by the authorities to learned APP, related a very sad and shocking version of facts in which the petitioner has already completed 14 years of imprisonment and, in fact, his case has been considered on 15.7.2008 by the jail Advisory Committee for recommending his case for remission/commutation of sentence in exercise of powers of the Government under Section 433 of the Criminal Procedure Code. However, no recommendation in favour of the petitioner is made, without conveying any clear reason. Relevant consideration, however, mentioned in the minutes of the Advisory Committee appear to be history of activities of the convict, humanitarian approach, the facts of the case in which the conviction was recorded, history sheet of the convict, behaviour of the convict during jail term, the productive activity during his jail term, regularity of returning to jail after being released on temporary bail, parole or furlough and opinions of the District Magistrate, Jail Superintendent and Superintendent of Police concerned.
3. As far as the jail record of the convict is concerned, he has already reached the age of 52 years and has consistently returned in time to jail on all the occasions when he was released on parole, furlough or temporary bail. His life in jail is reported to be constructive and productive due to which he has been promoted as Night Watchman and Warder during jail term. Even his attitude is stated, in writing, by the Superintendent of Jail, Rajkot, to be full of remorse and yet, contrary to all the positive remarks his behaviour in jail is stated to be bad, presumably on account of having been caught with some currency or food articles, for which he was already punished in the year 2006. In these facts, order dated 23.12.2008 of Inspector General (Prison), based on report of the Committee and recommendation of the other authorities calls for reconsideration and review. Since the Government may not receive a fresh proposal for exercise of powers under Section 433 of Criminal Procedure Code within two years of aforesaid order dated 23.12.2008, it is necessary and in the interest of justice that this Court, in exercise of its extraordinary jurisdiction, should request the Government to immediately take up the case of the petitioner for an objective view of the facts and record of the petitioner so as to reconsider its decision and decide afresh whether the powers under the provisions of Section 433 of Criminal Procedure Code should be exercised in favour of the petitioner as early as practicable in the peculiar facts and his personal circumstances. It may not be strictly relevant but may be pertinent to note in this context that the petitioner was originally accused but acquitted in the offence punishable under Section 376; and thereafter, accused and convicted of killing the family members of the alleged victim of the earlier offence under Section 376. Before that, he was a servant of the State, as a constable, for a decade and his behaviour in jail subsequent to his conviction is practically unblemished and exemplary.
4. It was fairly conceded by learned APP that there is no statutory bar to release of the petitioner on parole, and in the peculiar facts of the case, the Court may consider present petition for granting parole for the period required for the Government for reconsideration of its decision, which it may do pursuant to request of this Court within two months.
5. Therefore, in the peculiar facts and circumstances of the case, and as an exceptional and rare case, the petitioner is ordered to remain on parole for the period upto 30th September 2009, on the same conditions and the bonds on which he is released on furlough and the State Government is requested to reconsider the case of the petitioner, in the above facts and circumstances, for exercise of its powers under Section 433 read with Section 433-A of the Criminal Procedure Code and convey its decision, preferably before 30th September 2009 to the petitioner. Rule is made absolute accordingly. The Court has to place on record able and valuable service rendered by learned counsel, Mr.Amin, at the request of the Court. An additional copy of this order shall be served upon Inspector General (Prison), Gujarat State, Ahmedabad.
(D.H.Waghela, J.) *malek Top