Rajasthan High Court - Jaipur
Hori Lal vs . State Of Rajasthan on 17 March, 2015
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. D.B. Criminal Appeal No.253/2004. Hori Lal Vs. State of Rajasthan D.B.CRIMINAL APPEAL UNDER SECTION 374 (2) CR.P.C. AGAINST THE JUDGMENT DATED 10th OCTOBER, 2003 PASSED BY ADDITIONAL DISTRICT & SESSIONS JUDGE (FAST TRACK), DHOLPUR IN SESSIONS CASE NO.109/2002. Date of judgment ::17.03.2015. HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MRS. JUSTICE NISHA GUPTA None present for the appellant. Mr.Aladeen Khan, PP for the State. Mr. Paras Jandial Jailor, Central Jail, Bikaner, present in person. By the Court : (Per Ahluwalia, J.) : Oral
Horilal was nominated as accused in case No.119/86 registered at Police Station, Sarmathura Distt. Dholpur for offences under Sections 147, 148, 149, and 307 IPC. During investigation offence under Section 302 was added against the accused-appellant.
The trial Judge vide impugned judgment dated 10th October, 2003, held appellant guilty of the offences under Sections 302, 353 and 225 IPC.
Vide an order of separate date, appellant was sentenced as under : -
For offence under Section 302 IPC: to undergo life imprisonment, and to pay a fine of Rs. 1,000/-, and in default thereof, to further undergo one month simple imprisonment.
For offence under Section 353 IPC : to undergo two years simple imprisonment.
For offence under Section 225 IPC : to undergo two years simple imprisonment, and to pay a fine of Rs. 100/-, and in default thereof, to further undergo seven days simple imprisonment.
All the above sentences were ordered to run concurrently Present appellant has preferred D.B.Criminal Appeal No.253/2004 to assail his conviction and sentence passed by the trial Court.
On the orders passed by a Division Bench of Rajasthan High Court in D.B.Criminal Parole Writ Petition No.8629/2005 Horilal Vs. State on 28th October, 2005, appellant was ordered to be released on parole.
In pursuance of the orders of the Rajasthan High Court, Superintendent, Central Jail, Dholpur accepted the bail bonds of the petitioner, and released him on parole for the period commencing from 29th October, 2005 till 18th November, 2005. The appellant had to surrender before the jail authorities on 18th November, 2005. The appellant released on parole, never surrendered before the jail authorities, and a prosecution case No.28/2005 for offences under Sections 216 and 224 IPC was registered against the accused-appellant at Police Station, Kotwali Distt. Dholpur.
After registration of case, no steps were taken, till this Court on 28th January, 2015, raised an alarm bell by passing a detailed order.
In the report submitted to this Court, by Superintendent, Police Station, Kotwali, Distt. Dholpur, it has been submitted that despite the best efforts made by the police, appellant could not be arrested as yet.
One of us, (K.S.Ahluwalia, J.), as per roster since November, 2014 is Member of the regular Division Bench to which hearing of old D.B.Criminal Appeals is assigned. Appeals pertaining to the year 2004, 2005, and 2006 are listed before the bench for final hearing, and disposal. The appeals of convicts who have undergone about ten years are being decided. Thus, it is to be noted that appeals of the convicts, who have not been granted benefit of suspension of sentence, mature for final hearing after they have undergone about ten years behind the bars.
In last four months, it has been noticed that in number of the appeals, convicts who have obtained parole or who were on interim bail have not surrendered, and had absconded.
Learned Public Prosecutor has placed on record (Annexure-A/5) to contend that Director General of Police (Prisons), has brought to the notice of Deputy Secretary (Home), State of Rajasthan that in the last ten years, till 12th December, 2014, after grant of parole 320 convicts never returned to jail, and were declared as absconder. Out of the said absconders, 148 convicts have been arrested, and again confined to jail, and still 172 prisoners who on parole had not returned to respective jails are yet to be apprehended.
It will be apposite for us to reproduce part of the communication addressed by Director General of Police, Prisons Rajasthan, Jaipur bearing No.?? ?? / / 2015/70238-39 ????? 11.02.2015 to Deputy Secretary, Home, (Group-10) Department, Rajasthan Jaipur. In the said communication, it has been stated as under : -
"????? 12.12.2014 ?? ?????? ?? ?????? ???? 10 ????? ??? 320 ???? ???? ??? ??, ????? ?? 148 ???? ???? ??? ????? ?? ???? ?? 172 ???? ??? ?? ????? ?? ???? ?? ??? ?? | ???? ??????? ?? ???? ?? ???????? ?? ??????? 50044-50 ????? 29.12.2014 ?????? ??????? ????????? ?????, ????? ???????? ????? ?? ??????? ?? ???? ??????? ?? ????? ???????? ?? ?????? ???? ??? ?? | ???? ?? ????????? ????? ?? | Best efforts made by the Division Bench to monitor case of the prisoners who had absconded after availing benefit of parole have borne no fruitful dividends, rather they have proved counter productive. Much of time, and energy of the Division Bench is consumed by directing the State to take active steps to apprehend the persons, who after their release on parole have not returned to jail. Therefore, the Division Bench, instead of deciding the appeals has to devote much time to call upon the State to gear up its apparatus, and evolve mechanism to apprehend the absconders who have not returned to jail after availing the benefit of parole.
Ultimately, a question has arisen; what should Court do with the appeals of convicts who after filing their appeals have taken no steps to assist this Court for hearing and disposal of the appeal. There is no representation before the Court on behalf of the convicts/appellants who have absconded.
We have come across a recent judgment rendered by Hon'ble Apex Court in Surya Baksh Singh Vs. State of Utter Pradesh 2013 (4) RCR (Criminal) 880 wherein their Lordships have observed as under: -
1. This appeal brings to the fore the rampant manipulation and misuse of the statutory right to appeal by an ever increasing number of convicts who take recourse to this remedy with the objective of defeating the ends of justice by obtaining orders of bail or exemption from surrender, and thereupon escape beyond the reach of the law. Jural compulsions now dictate that this species of appeals should be consciously dismissed on the ground of occasioning a gross abuse of the judicial process and an annihilation of justice. The need to punish every transgressor of the law is ubiquitously accepted in all legal persuasions throughout the ages. Kautilyas Arthasastra opines that - By not punishing the guilty and punishing those not deserving to be punished, by arresting those who ought not to be arrested and not arresting those who ought to be arrested; and by failing to protect subjects from thieves etc. through these causes - decline, greed and dis-affection are produced among the subjects. It is punishment alone which maintains both this world and the next. In similar antiquity it has been observed by Plato in his celebrated treatise Laws ....not that he is punished because he did wrong, for that which is done can never be undone, but in order that in future times, he, and those who see him corrected, may utterly hate injustice, or at any rate abate much of their evil-doing. In the present time, and from another segment of the globe the necessity of punishment has been articulated thus - By enforcing a public system of penalties government removes the grounds for thinking that others are not complying with the rules. For this reason alone, a coercive sovereign is presumably always necessary, even though in a well-ordered society sanctions are not severe and may never need to be imposed. Rather, the existence of effective penal machinery serves as men's security to one another - A Theory of Justice by Rawls.
2. It is necessary to distinguish dismissal of appeals in instances where steps have been taken by the Court for securing the presence of the Appellant by coercive means, including the issuance of non-bailable warrants or initiation of proceedings for declaring the Appellant a proclaimed offender by recourse to Part C of Chapter VI of the Code of Criminal Procedure, 1973 (Cr P C for short) on the one hand, and those where the Appellant may incidentally and unwittingly be absent when his appeal is called on for hearing. The malaise which we are perturbed about is the willful withdrawal of the convict from the appellate proceedings initiated by him after he has succeeded in gaining his enlargement on bail or exemption from surrender.
Considering the judgment rendered by Hon'ble Apex Court, we thought of deciding the appeal after appointing amicus curiae. However, a piquant situation has arisen, if the appeal is decided by hearing the amicus curiae, and the appellant is acquitted, then, it promotes tendency among the prisoners to avail parole, and desert the Courts, and in case the appeal is dismissed, it causes breach of principles of natural justice, as neither the convict nor his counsel is present before the Court.
To overcome such a situation, relaying upon the observations made by Hon'ble Apex Court in Surya Bakash Singh (supra), we dispose of the present appeal with a direction to Director General of Police, Rajasthan, to take all active steps to apprehend the appellant, and submit periodic reports regarding efforts made to apprehend the appellant before Registrar General of this Court. Registrar General of this Court, if deems fit may create a Special Cell to monitor cases of such convicts. However, we also grant liberty to the appellant to revive the appeal by filing an application after he is arrested or surrender, and is confined in jail.
A direction is further issued to the Registrar General of this Court to insist for submission of the periodic reports from Director General of Police, Rajashan regarding the efforts made by the police to apprehend the convicts/appellants who have absconded after availing parole.
A list of all convicts, who after passing of the sentence have absconded may be prepared, and another list of proclaimed offenders, who at stage of investigation and trial have absconded be also prepared for future action to be proposed by bench hearing Public Interest Litigation to whom we are making a separate request to oversee rampant misuse of concession of bail, and parole, and non-apprehension of accused.
We are also convinced that 'Rule of Law' must prevail, and any breach thereof should not be compromised. It is paramount duty of the Court to uphold the majesty of law, and enforce 'Rule of Law'. Thus, we suo moto treat this order as a writ in the nature of public interest, and direct the registry to place this order before the bench hearing public interest litigation, so that this Court is able to monitor, regulate return of convicts, who after availing parole, desert the Courts, and become outlaw.
We are also of the view that there is an urgent need to device ways for apprehension of such accused and issue stringent directions to nip the evil in the bud. Let message go loud and clear that it is better for the citizen to be on the right side of law and anybody who take advantage of the loopholes and shortcomings in the prevailing law shall suffer immensely. Time has come to plug loopholes and correct the shortcomings in the existing system. We do hope that bench hearing public interest litigation shall review the prevailing system, and device mechanism that convicts who are released on parole, return to jails, without curbing or effecting right of the convicts who cherish liberty and are entitled to parole. Alongwith this order, we also annex report dated 16th March, 2015 submitted by S.H.O., Police Station, Kotwali Distt. Dholpur to the Office of Government Counsel, State of Rajasthan for perusal of the bench hearing public interest litigation so that, bench is able to formulate comprehensive view to cure the malady, which ails the system.
(Nisha Gupta) J. (Kanwaljit Singh Ahluwalia), J.
N.Gandhi 155 Certificate- All corrections have been incorporated in the judgment/order being emailed.
Naval Kishore Gandhi P.A.cum judgment writer