Delhi High Court
Rahis Ahmed @ Bambaiya vs State on 1 October, 2018
Equivalent citations: AIRONLINE 2018 DEL 2336
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 1st October, 2018
+ W.P.(CRL) 2742/2018
RAHIS AHMED @ BAMBAIYA ..... Petitioner
Represented by: Ms. Aishwarya Rao, Advocate.
versus
STATE ..... Respondent
Represented by: Mr. Rahul Mehra, Standing Counsel
and Mr. Sanjay Lao, Additional
Standing Counsel for State.
Mr. Ajay Kashyap, DG, Prisons,
Mr.Prashant Kumar, OIC, Legal, and
Mr.Amresh Goel, AS Legal. SI
Ompal Singh, PS Khajuri Khas.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. By this petition, petitioner seeks parole to re-establish social ties and also challenges the communication dated 23rd August, 2018 whereby his application was rejected for the reason the petitioner was granted three weeks' furlough in July, 2017 which the petitioner had not availed.
2. The petitioner has his own tale of sorrows to tell. Petitioner filed an application for furlough before the competent authority and vide order dated 1st July, 2017 was granted first spell of furlough for a period of three weeks on his furnishing two sureties of ₹20,000/- each along with personal bond to the satisfaction of the Superintendent, Central Jail, Tihar. Not being able to furnish the two sureties for a sum of ₹20,000/- each, petitioner filed an application for modification of the said furlough order on 13 th July, 2017 which was sent back to the Superintendent, Central Jail and to the Legal W.P.(CRL) 2742/2018 Page 1 of 9 Branch on account that not even one month had passed and the petitioner should make efforts to file the two sureties of ₹20,000/- each as directed.
3. Para 4 of the affidavit of Director General (Prisons) for not acceding to the request of reduction of surety bonds within one month of the passing of the order granting furlough reads as under:
"4. That the application of the life convict for modifications of the order dated 01.07.2017 was forwarded from the concerned Superintendent, Central Jail No.2, Tihar, vide dispatch no.F-2/SCJ-2/CJ-2/AS (furlough)/2017/1033 Dated 19.07.2017 to the Prisons Headquarter, Tihar, which was received at Legal Branch, PHQ, on 24.07.2017.
It is pertinent to mention here that the life convict was granted furlough vide order dated 01.07.2017 and only after 12 days he had applied for modification on 13.07.2017 which showed that he had not made any sincere efforts to arrange for sureties and surety amount and therefore this behavior of the convict was not acceptable in view of his expired and unexpired portion of actual sentence as by then the convict had undergone only around four and a half years of actual sentence, hence, in such cases as per prevailing practice, it is found appropriate to impose comparatively stricter condition to deter the convict from misuse of the liberty in the form of furlough. It was felt necessary to allow more time to the convict to arrange for two sureties and surety amount of ₹20,000/- as ordered, and therefore the application of the convict was sent back to the concerned Superintendent, Central Jail No.2, Tihar, with direction to send the application to the Legal Branch, PHQ, after a gap of one month on 01.08.2017 from the date of furlough granting order dated 01.07.2017, thereby the life convict was given sufficient time to make all possible efforts before proceeding for modification of order and thus the objection raised by the Legal Branch, PHQ, was altogether rational and logical in all senses."
W.P.(CRL) 2742/2018 Page 2 of 94. Since no decision on the application of the petitioner dated 13 th July, 2017 was taken, petitioner filed a fresh application seeking modification of order dated 1st July, 2017 granting him furlough which was received at the Legal Branch of the Prison Headquarter on 11th August, 2017 however, same was rejected on 19th August, 2017 in view of the period of sentence undergone, as the Prison Authority was of the view that unexpired portion of the sentence was large and also adverse police verification report. In the record, the noting of the prison department that the petitioner had undergone four and a half years actual sentence is incorrect because as on 1st July, 2017, the petitioner had undergone nearly 7 years 4 months actual imprisonment.
5. Thereafter, the previous application seeking modification which was sent back from the Prison Headquarter on 1 st August, 2017 was received back in the Prison Headquarter on 15th January, 2018 and rejected on the ground that actual sentence undergone by the petitioner was around five years. While issuing the order of reduction on the said application on 31 st January, 2018 the prison authorities stated that the first spell of furlough was rejected. The petitioner with the present petition has also enclosed the said application.
6. Since furlough could not be availed by the petitioner, petitioner filed an application seeking parole on the ground that he has been in continuous custody for the last eight years and intends to re-establish and maintain social ties with the family, before the Govt. of NCT which was forwarded on 5th August, 2018 to the Govt. of NCT of Delhi. The said application was rejected and the communication in this regard signed by the Deputy Secretary (Home) is dated 23rd August, 2018. Application seeking parole of W.P.(CRL) 2742/2018 Page 3 of 9 the petitioner was rejected on the ground that the petitioner has been granted three weeks furlough in July, 2017 which he could avail. While forwarding application with the comments to the Govt. of NCT of Delhi, Superintendent, Tihar Jail obviously did not forward the fact that the petitioner has already filed two applications for reduction of the surety amount which were dismissed and thus he could not avail the furlough. Thus the petitioner filed the present writ petition.
7. In the reply affidavit of the Director General (Prisons) it has now been stated that there was typographical error in the order dated 31st January, 2018 rejecting the furlough of the petitioner which was clarified by the corrigendum dated 5th February, 2018.
8. From the narration of sequence of events it is thus apparent that order of furlough granted to the petitioner on 1st July, 2017 could not be availed by the petitioner till date and while deciding successive applications seeking modification there was no application of mind by the prison authorities as to why the petitioner was not in a position to pay the high surety bond, that is, two surety bonds of ₹20,000/- though the normal rule is ₹10,000/- with one surety bond. In a given case the authority may impose strict conditions but to say that continuous incarceration for a period of more than seven years would be a short period for a life imprisonment sentence and thus high surety bond is to be imposed is wholly irrational and arbitrary.
9. Further the Additional Chief Secretary who rejected the parole also failed to notice that despite having been granted furlough for the last more than one year the petitioner could not avail the said furlough and mechanically dismissed the application for parole.
10. Both the authorities also failed to notice that the petitioner had earlier W.P.(CRL) 2742/2018 Page 4 of 9 applied for parole for filing Special Leave Petition before the Hon'ble Supreme Court and to re-establish social ties which was rejected by the Govt. of NCT of Delhi on 1st April, 2017 whereafter the petitioner preferred a writ petition before this Court being W.P. (Crl.) No.1250/2017 which was allowed by this Court on 31st July, 2017 whereafter the petitioner was released on parole for a period of four weeks w.e.f. 16th October, 2017 to 13th November, 2017 on the condition that he would furnish the personal bond and surety bond of ₹5,000/- to the satisfaction of the Superintendent, Central Jail, Tihar, subject to further conditions and the petitioner did not misuse the said concession and surrendered in time, nor was involved in any other case.
11. Justification of the Director General, Prisons in para 4 of the affidavit that it was thought proper to impose comparatively stricter condition to deter the convict from misusing the liberty in the form of furlough, in view of his expired and unexpired portion of actual sentence and that he had undergone only 4½ years of actual sentence is not based on the record for the reason the nominal roll dated 2nd August, 2018 reflects that as on that date the petitioner had undergone 8 years 5 months and 24 days actual imprisonment and thus as on 1st July, 2017 the actual sentence undergone by the petitioner would have been around seven years and four months.
12. From the records it is thus apparent that incorrect and incomplete facts were put up to the Government of NCT of Delhi and Director General, Prisons resulting in the rejection of the parole application and rejection of successive applications for modification of order granting furlough.
13. While deciding the application for parole or furlough the authorities sit as quasi judicial authority and are required to apply their mind to all facts W.P.(CRL) 2742/2018 Page 5 of 9 and cannot decide the applications in a mechanical or arbitrary manner. Division Bench of Punjab and Haryana High Court in the decision reported as MANU/PH/0765/2010 Varun @ Gullu and Satyawan vs. State of Haryana and Ors. echoed the same voice and held:
"6. No doubt parole or furlough is a concession granted to a prisoner, but grant of such concession is regulated by a statute and on fulfillment of conditions prescribed therein, a prisoner is entitled to parole. The concession of releasing a prisoner on parole or furlough is circumscribed by a statue; therefore, the release of a prisoner is in exercise of the right created under that statute. Therefore, the authorities under the Act cannot act arbitrarily, capriciously or without due application of mind. The statutory power to release a prisoner on parole or furlough is to be exercised objectively keeping in view the intention of the legislature and the purpose of admitting a prisoner to parole or furlough."
14. In the present case adverse police report was cited as one of the reasons for non-reduction of the surety bonds, however, it is not indicated on what basis was that opinion formed. In the decision reported as MANU/GJ/0258/1992 Vasram Gagji vs. State of Gujarat & Ors. the Division Bench of the High Court of Gujarat cautioned that though due weightage at the time of consideration of parole/furlough leave application must be given to the adverse police opinion however, the same cannot be divorced of the other relevant facts and circumstances emerging from the record of the case and mechanically given any undue preference and importance. It was held:
"5. Now, undoubtedly, the adverse police opinion has certainly some positive, definite relevance and that it must be given its due weightage at the time of considering parole or furlough leave applications, more particularly at the time W.P.(CRL) 2742/2018 Page 6 of 9 when such parole or furlough leave is to be granted for the first time after the order of conviction and sentence. But at the same time, the said police opinion standing by itself divorced of other relevant facts and circumstances emerging from the record of the case cannot be mechanically given any undue preference and importance so much so as to refuse the parole leave which otherwise deserves to be granted. In fact, before placing any implicit reliance and banking upon the alleged adverse police opinion, it is also the foremost duty of the District Magistrate and for that purpose any other competent authority empowered to grant parole or furlough leave to first of all coolly examine, appreciate and verify the bona fides, truthfulness, genuineness and the ultimate resultant effect of the alleged adverse police opinion in light of other attending important circumstances, for example, as highlighted in the instant case above in para 3 of this judgment. In the said process, if it is ultimately found that the said adverse police opinion stands outweighed and falsified, the same obviously pales into insignificance losing all its credibility to command any consideration. Many a times, it is found that the alleged adverse police opinion is only a one-sided picture of some false or sometimes imaginary apprehensions of some interested persons which as stated above clearly stands belied by consistent good conduct of the prisoner inside and outside the Jail. If things are not seen and examined from this particular angle and perspective, the parole/furlough leave would remain idle on the statute book denying the Prison Justice to the deserving accused persons in the Jail.
6. Now bearing in mind the above discussion, if we examine the facts and circumstances of the present case as highlighted above in para 3 of this judgment, it is indeed strange to find how indeed the adverse police opinion could have possibly made any dent and weighed upon the District Magistrate while deciding the present parole leave application ? This only means that the District Magistrate while deciding the present parole leave application has not cared to have a look at the relevant circumstances standing in favour of the petitioner, W.P.(CRL) 2742/2018 Page 7 of 9 completely falsifying the alleged adverse police opinion against the petitioner ! ! ! In fact, such a rejection of parole leave application exhibits total non-application of mind. We feel that the District Magistrate or for that purpose any other authority competent to exercise such a power to grant or refuse the parole leave should not mechanically slop itself at the alleged adverse police opinion without taking into consideration other material facts having definite and positive bearing on the decision taking process in favour of the prisoner to obtain parole/furlough leave as the case may be. Looking to the manner in which the discretionary power to release the prisoner on parole in this case came to be exercised, we are sorry to observe that this is not the way to exercise the quasi-judicial powers of deciding the parole/furlough leave applications by the District Magistrate or for that purpose any other competent authority empowered to do so."
15. Apparently both the authorities while giving undue weightage to the adverse police report ignored that the petitioner had been released on parole pursuant to the order of this Court dated 31 st July, 2017 in W.P. (Crl.) No.1250/2017 which concession was not misused.
16. Considering the fact that the petitioner was earlier released on parole for a period of four weeks by this Court in W.P. (Crl.) 1250/2017 vide order dated 31st July, 2017, he surrendered in time and there is no allegation that he misused the said concession, this Court deems it fit to grant parole to the petitioner. It is, therefore directed that the petitioner be released on parole for a period of six weeks from the date of his release on his furnishing a personal bond in the sum of ₹5,000/- with one surety of the like amount, subject to the satisfaction of the Superintendent, Tihar Jail, further subject to the condition that the surety of the petitioner shall furnish a mobile number W.P.(CRL) 2742/2018 Page 8 of 9 which will be kept in active mode during the period of parole so that if required, the petitioner can be contacted.
17. Petition is disposed of. Copy of the order be communicated to the petitioner, through Superintendent, Tihar Jail.
(MUKTA GUPTA) JUDGE OCTOBER 01, 2018 'vn' W.P.(CRL) 2742/2018 Page 9 of 9