Delhi High Court - Orders
Chandrakant Jha vs State Of Nct Of Delhi on 7 February, 2022
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 2410/2021
CHANDRAKANT JHA ..... Petitioner
Through: Ms. Neha Kapoor, Advocate
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Rajesh Mahajan, ASC for State
with Ms. Jyoti Babbar, Advocate
along with Insp. Praveen, P.S. Hari
Nagar
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
% 07.02.2022 (THROUGH VIDEO CONFERENCING)
1. The instant Criminal Writ Petition has been filed under Article 226/227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, (hereinafter "Cr.P.C.") seeking writ in the nature of mandamus for grant of parole to the petitioner, for a period of 3 months, in three FIRs registered against him. The petitioner seeks parole in FIR bearing no. 243/2007 under Section 302/201 Indian Penal Code, 1860, (hereinafter "IPC"), PS Hari Nagar, FIR no. 279/2007 under Section 302/201 IPC, PS Hari Nagar and FIR no. 609/2006 under Section 302/201 IPC, PS Hari Nagar, wherein he has been convicted for life imprisonment.
2. Learned counsel appearing on behalf of the petitioner submitted that Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:09.02.2022 18:25:29 the petitioner has been in custody for over 14 years in the abovementioned FIRs. It is submitted that the mother of the petitioner expired on 21st January, 2020, however the petitioner was not able to perform her last rites and rituals, since, he was in custody. On 21st January, 2021, on the mother‟s first death anniversary, the petitioner was not released and hence, the rituals could not be performed on the death anniversary as well.
3. It is, further, submitted that the petitioner has four daughters and her eldest daughter is of marriageable age and now he, as a father, has to search for a suitable match for her. Since, he is the only male member in the family, the duty of finding his daughter a suitable groom falls upon him.
4. Learned counsel on behalf of the petitioner submitted that the since, the mother of the petitioner has expired and her pension has stopped after her death, the family is now going through tough financial times because they have lost a major source of income. The wife of the petitioner is working as a peon to earn for her family and has to sustain herself as well as her four daughters, including taking care of their education, rent and other regular expenses.
5. It is submitted that the petitioner has been released earlier on parole, 4 times, and furlough, 7 times, however, since, 2019, he has not been given parole. This is the only opportunity for the petitioner to re-establish his social ties and reinstate himself in the society.
6. It is submitted on behalf on the petitioner, by the affidavit of the wife of the petitioner/pairokar, that the petitioner has been acquitted and discharged in all other FIRs wherein the petitioner had been accused. It is, further, submitted that the petitioner has never misused the liberty of parole and furlough granted to him and has never violated the conditions imposed Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:09.02.2022 18:25:29 upon him. The petitioner undertakes to comply with any terms and conditions as may be imposed upon him by this Court while granting the parole. He undertakes to surrender before the authority concerned as directed by this Court.
7. Per Contra, Mr. Rajesh Mahajan, learned ASC for the State has vehemently opposed the instant Writ Petition and submitted that the petitioner is not entitled to the benefit of the parole, since, he has been convicted for grave and heinous offences of murder in all the three FIRs. In Order of sentence dated, 4th February, 2013, in FIR no. 279/2007, 5th February, 2013, in FIR no. 243/2007 and 6th February, 2013, in FIR no. 609/2006, the petitioner was awarded death penalty by the learned Trial Court. Thereafter, the petitioner appealed against the said Orders of sentence and his death penalty was commuted to rigorous imprisonment for life. Moreover, there are 10 other cases where the petitioner has been accused and his antecedents are not clean.
8. It is submitted by the learned ASC for the State that as per the Nominal Roll of the petitioner, his overall jail conduct has been unsatisfactory, in so far as, he has been awarded punishment on two accounts, that is, on 7th January, 2020, on account of a mobile phone, charger and sim card being recovered from him and on 1st October, 2020, for misusing inmate phone call facility. It is submitted that as per the provisions of the Prisons Act, 1894, the petitioner was accordingly punished for possession of prohibited items. Thereafter, he has not been granted parole taking into consideration his antecedents and his disorderly behaviour in jail. Moreover, in accordance with Rule 1210 (II) of the Delhi Prison Rules, 2018, (hereinafter "the Rules"), where the convict has undergone a major Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:09.02.2022 18:25:29 punishment for any prison offence, his conduct needs to be uniformly satisfactory for two years before he could be granted parole, however, in case of the petitioner, these two years have not lapsed and hence, he is not entitled for parole as prayed for.
9. It is, further, submitted that the grounds sought by the petitioner for grant of parole are not urgent or necessary and hence, the instant petition is liable to be dismissed.
10. Heard learned counsel for the parties and perused the material on record including the Status Report and the Nominal Roll.
11. The foundational concept of parole is to enable a convict to, time and after, re-establish his social ties in the community and his family and reintegrate himself in the society. It enables him to maintain his social and familial obligations and responsibilities as well as maintain contact with the world outside the prison. Parole is usually a reward for good conduct during the time period of the serving of sentence by the convict. Since, the Prisons Act, 1894, does not make a specific provision for parole and furlough, each State has the power to formulate guidelines on parole and furlough. The Delhi Prisons Act, 2000, and the Delhi Prison Rules, 2018, together form the basis of guidelines of parole in the territorial jurisdiction of State of the Delhi.
12. The Delhi Prison Rules, 2018, recognize parole as a progressive measure of correctional services, since, the grant of parole motivates the convict to maintain discipline and good conduct during his time in custody. The provision for parole is seen as a positive reinforcement measure towards the convict and the judiciary has reiterated the significance of the provision in several cases before it. However, the first factor to be considered while Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:09.02.2022 18:25:29 considering an application for parole is the conduct of the convict. The Rules, also, provide for grounds subject to which a parole may be granted or rejected. Some of the relevant provisions of the Rules are stated as under:-
"1208. Subject to fulfillment of conditions stipulated in Rule 1210 below, it would be open to the Competent authority to consider applications for parole on the grounds such as:-
i. Serious illness of a family member. ii. Critical conditions in the family on account of accident or death of a family member.
iii. Marriage of any member of the family of the convict; iv. Delivery of a child by the legally wedded wife of the convict.
v. Serious damage to life or property of the family of t h e c o n v i c t i n c l u d i ng d a ma g e c a u s e d b y n a t u r a l calamities.
vi. Sowing and harvesting of crops.
vii. To maintain family and social ties. viii. To pursue the filing of a Special Leave Petition before t h e S u p r e m e C o u r t o f I n d i a a g a i n st a j u d g me n t delivered by the High Court convicting or upholding the conviction, as the case may be.
....
1210. In order to be eligible for release on parole in terms of Rule above:-
I. A convict must have served at least the period of one year in prison excluding under-trial period and any period covered by remission. However, in exceptional cases, where the prisoner has spent more than 3 years as under trial period or half of the sentence of the punishment awarded as under trial then his parole application may be considered, if he has spent at least6 months in prison as convict. II. The conduct of the Prisoner who has been awarded major punishment for any prison offence should have been uniformly good for last two years from the date of application and the conduct of Prisoner who has been awarded minor punishment or no punishment for any prison Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:09.02.2022 18:25:29 offence in prison should have been uniformly good for last one year from the date of application. III. During the period of release on parole or furlough, if granted earlier, the convict should not have committed any crime.
IV. The convict should not have violated any terms and conditions of the parole or furlough granted previously. V. A minimum of six months ought to have elapsed from the date of surrender on the conclusion of the previous parole availed. In emergency, parole may be considered even if minimum period of six months has not elapsed from the date of termination of previous Parole. The emergency may include delivery of a child by the wife of the convict, death of a family member, marriage of children, terminal illness of family members and natural calamities.
....
1211. In the following cases, parole shall not be granted, except, if in the discretion of the competent authority special circumstances exist for grant of parole; I. Prisoners convicted under sedition, terrorist activities and NDPS Act.
II. Prisoners whose immediate presence in the society may be considered dangerous or otherwise prejudicial to public peace and order by the District Magistrate of his home district or there exists any other reasonable ground such as a pending investigation in a case involving serious crime.
III. Prisoners who are considered dangerous or have been involved in serious prison violence like assault, outbreak of riot, mutiny or escape, or rearrested who absconded while released on parole or furlough or who have been found to be instigating serious violation of prison discipline as per the reports in his/her annual good conduct report.
IV. Convicted foreigners subject to prior approval of Ministry of Home Affairs & Ministry of External Affairs Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:09.02.2022 18:25:29 and having valid permission to stay in India. V. Prisoners suffering from mental illness, if not certified by the Medical Officer to have recovered, VI. If the prisoner is convicted of murder after rape; VII. If the prisoner is convicted under POCSO; VIII. If prisoner is convicted for multiple murders whether in single case or several cases.
IX. If prisoner is convicted for Dacoity with murder. X. If prisoner is convicted for Murder after kidnapping for ransom.
XI. If the prisoner is convicted under Prevention of Corruption Act.
XII. If the case is investigated by the Central Bureau of Investigation or Central Agency."
13. On perusal of the Nominal Roll, it has been found that on two occasions the petitioner has been awarded punishment under prison offences. Condition II of the Rule 1210 makes provision for consideration of the conduct of the convict, while granting parole, when he has been awarded a major punishment and whether such conduct has been satisfactory for the following two years or not. The petitioner herein had been awarded punishment for prison offences on 1st October, 2020, which necessitates him to show his good conduct for two years since the last punishment. As such the requisite time period of two years has not lapsed as of yet and the petitioner shall prove his satisfactory conduct till the time such period is undergoing in order to satisfy the condition under the Rules.
14. Further, a bare reading of Rule 1210 and 1211, clarifies the circumstances in which the liberty of parole may or may not be granted. With reference to the instant petition, Rule 1211 (VIII) holds particular relevance, which provides that in cases where the prisoner has been Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:09.02.2022 18:25:29 convicted for multiple murders, he shall not be granted parole except under special circumstances, as per the discretion of the competent authority. The petitioner before this Court has been convicted in three cases under Section 302/201 IPC for rigorous imprisonment for life and the only grounds under which he is seeking parole is firstly, to find a suitable match for his daughter and secondly, to be present for the death anniversary of his mother. The grounds urged by the petitioner are not such that may be considered „special circumstances‟ for the grant of parole. Hence, the parole is barred by the abovesaid Rules.
15. Taking into account the abovementioned Rules, the gravity of the offence, and the facts revealed in the Nominal Roll as well as the Status Report, the overall conduct of the petitioner in jail is not found to be satisfactory and the grounds put forth for seeking grant of parole are not found reasonable or urgent.
16. Keeping in view the submissions and contentions of the counsel for the parties, the material on record and the law laid down under the Rules as stated above, this Court does not find any ground to grant parole to the petitioner.
17. The petition is, accordingly, disposed of.
CHANDRA DHARI SINGH, J FEBRUARY 7, 2022 dy/ms Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:09.02.2022 18:25:29