Delhi High Court - Orders
Sukhdev Yadav @ Pahalwan vs State Nct Of Delhi & Ors on 4 December, 2020
Author: Anu Malhotra
Bench: Anu Malhotra
$~43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1848/2020
SUKHDEV YADAV @ PAHALWAN ..... Petitioner
Through: Mr. Kanhaiya Singhal, Adv.
versus
STATE NCT OF DELHI & ORS. ..... Respondents
Through: Ms.Nandita Rao, ASC for Mr. RS
Kundu, ASC with SI Ichha Ram.
Mr. PK Dey, Ms. Shilpi Dey, Mr. S.
Chakraborty, Adv. for R-2.
R-3 in person.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
% 04.12.2020 (through video conferencing) Vide the present petition, the petitioner has sought grant of a writ/ order/ direction seeking quashing of the letter bearing No.F.18/2015/2014/HG/3414 dated 22.10.2020 issued by the Deputy Secretary (Home) whereby the application dated 04.10.2020 filed by the applicant herein seeking grant of parole was rejected. It was stated in the said letter dated 22.10.2020 that the said application for parole was rejected for the following grounds:
"1. As per police verification report the possibility of committing similar offence and adverse impact of society cannot be ruled out and case no. 192/02, 56/05 and 57/05 are also registered against the convict.
2. DG (Prison) has not recommended the parole.
3. Considering the objections raised by the respondents Mrs. Nilam Katara and Ajay Katara."
Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:05.12.2020 15:20:02 This file is digitally signed by PS to HMJ ANU MALHOTRA.
It has been submitted on behalf of the applicant by learned counsel as is also brought through the application that the applicant be granted parole for a period of 60 days which prayer during the course of submissions was confined to the prayer for a few days so that the applicant can attend the marriage of his eldest daughter which is fixed for 06.12.2020 which aspect is stated to have been verified by the State. it is further submitted on behalf of the applicant that the applicant had previously vide order dated 21.01.2019 in WP (Crl.) 614/2018 of this Court, as modified vide order dated 13.02.2019 in WP (Crl.) 614/2018 had been granted parole for a period of two weeks from the date of his release on his furnishing a personal bond in the sum of Rs.1 lac with two sureties of the like amount to the satisfaction of the Superintendent Jail concerned subject to conditions as imposed thereby which stood modified qua the condition no.1 in relation to the reporting of the applicant at SHO, PS Kavi Nagar, Ghaziabad, UP after every 3rd day during the period of parole which directions dated 21.01.2019 read to the effect:
"In view of the above, the Court finds no impediment in allowing the present petition. Accordingly, the petitioner is granted parole for a period of two weeks from the date of his release on his furnishing a personal bond in the sum of Rs.1,00,000/-with two sureties of the like amount to the satisfaction of the Jail Superintendent concerned, subject to the following conditions:-
(1) The petitioner shall report to the SHO of Police Station Kavi Nagar, Gaziabad, Uttar Pradesh, Delhi, after every three days, during the period of parole.
(2) He shall furnish three telephone, of which two shall be of his relatives to the SHO of Police Station, Tilak Marg. The said numbers shall keep operational at all times to ascertain whereabouts of the petitioner in his home District.
Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:05.12.2020 15:20:02 This file is digitally signed by PS to HMJ ANU MALHOTRA.
(3) The petitioner shall not venture out of his home District. (4) The petitioner shall surrender before the Jail Authorities upon the expiry of the period of parole."
It had been submitted during the course of submissions made on behalf of the applicant that the applicant had in no manner misused the liberty of the grant of parole as granted vide order dated 21.01.2019 r/w order dated 13.02.2019 in WP (Crl.) 614/2018 which aspect was not refuted on behalf of the State nor on behalf of the respondent nos.2 & 3. During the course of submissions however made on behalf of the State and the respondent no.2 it was submitted to the effect that the applicant had already been granted parole vide order dated 21.01.2019 for making arrangement for the marriage of his elder daughter then stated to be 23 years of age and that there is no further ground to grant any parole for the marriage ceremony of the said daughter.
In reply to a specific Court it was submitted by the learned counsel for the petitioner that the daughter for whose marriage arrangements the parole had been granted on 21.01.2010 in WP (Crl.) 614/2018 as to whether she is the same daughter whose marriage is to be solemnised on 06.12.2020, it was replied in affirmative on behalf of the petitioner submitting to the effect that the marriage of the applicant's daughter had been fixed for 26.04.2020, which marriage was to be solemnised at District Kushinagar, UP but due to the pandemic and lock down, it could not be performed at that day and has thus been re-scheduled for 06.12.2020. During the course of submissions that have been made on behalf of the State and on behalf of the respondent no.2 and submissions made by the respondent no.3 in relation to the aspect as detailed in the order dated 22.10.2020 at serial no.1 to the effect that as per police verification report there was possibility of commission of a Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:05.12.2020 15:20:02 This file is digitally signed by PS to HMJ ANU MALHOTRA.
similar offence and adverse impact on society which could not be ruled out in view of the Case No.192/2002, 56/05 and 57/05 also being registered against the applicant, it was pointed out on behalf of the applicant that as regards the Cases No.56/05 & 57/05, the applicant had already been acquitted in relation thereto and in relation to the FIR No.192/02, PS Kavi Nagar, this was the only case that remained pending in which the applicant stood convicted and the conviction having been upheld till the Hon'ble Supreme Court . it was submitted on behalf of the applicant that there is nothing on the record to indicate that there was any possibility of commission of a similar offence by the applicant.
As regard the aspect that there were objections raised by the respondent nos.2 & 3 which have even now been raised through oral submissions made on behalf of the respondent no.2 as well as through the reply filed on behalf of the respondent no.2, it has been submitted placing reliance on the sentence imposed in the instant case on the applicant to the effect that he was to undergo a sentence of 20 years without any remission and that thus there was no scope for any parole whatsoever. Qua this aspect, it was submitted on behalf of the applicant that the factum that the applicant had been granted parole previously as granted vide order dated 21.01.2019 modified vide order dated 13.02.2019 in WP (Crl.) 614/2018 cannot be ignored. The said submission is undoubtedly correct.
Furthermore, the learned counsel for the applicant and learned ASC for State have pointed out fairly to the aspect that it has been submitted by the then ASC during the course of proceedings in WP (Crl) 1605/2020 dated 06.10.2020 that whilst dismissing the appeal in the present case vide order dated 06.02.2015 of the Hon'ble Division Bench of this Court had directed Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:05.12.2020 15:20:02 This file is digitally signed by PS to HMJ ANU MALHOTRA.
inter alia that in any application for bail, the respondent nos.2 & 3, who are the mother of the deceased and one witness in the trial respectively and who has also been granted police protection are required to be noticed and that the competent authority would also issue notice to the said respondents before deciding the parole application which course of action was also stated to be acceptable to the learned counsel for the applicant. Qua petition WP (Crl.) 1605/2020 it has been submitted on behalf of the applicant that the observations of the Hon'ble Division Bench of this Court in judgement dated 06.02.2015 requiring the issuance of a notice to the respondent nos.2 & 3 essentially to be heard qua the application seeking grant of parole, if any, filed by the applicant itself negates the imposition of any embargo on the applicant seeking grant of parole. It has been necessary for this Court to point out to the learned counsel for the applicant the verdict of the Hon'ble Coordinate Bench of this Court in WP (Crl.) 881/2020 dated 18.06.2020 in relation to a co-convict wherein the emergency parole was also declined in view of the factum that the co-convict therein had been sentenced to 25 years of imprisonment without remission, qua which it was submitted on behalf of the applicant by learned counsel for the applicant that the parameters of the circular on the basis of which the applicant thereof in that case had sought the grant of parole are not identical as in the instant case and the aspect that the present applicant had been granted parole previously which had not been misused by him cannot be ignored.
It is essential to observe that the respondent no.2 vide reply dated 25.11.2020 seeking dismissal of the petition has reiterated the aspect of the imposition of sentence of 20 years on the applicant herein without remission as upheld till the Hon'ble Supreme Court and it has been submitted on Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:05.12.2020 15:20:02 This file is digitally signed by PS to HMJ ANU MALHOTRA.
behalf of the respondent no.2 and as submitted by the respondent no.3 in person through oral submissions made by him on 03.12.2020 and as submitted by him today there has in fact even in the year 2019 been an enhancement of the protection granted to the respondent no.3, the sole eye witness in the matter in view of the increased threat perception to him and which it has been submitted on behalf of the respondent no.2 was so granted by the Hon'ble Supreme Court in WP (Crl.) 113/2019 vide order dated 07.05.2019 which enhancement was directed to considered by the Union of India for enhancement for security of the witness on account of severe threat perception whereafter the security of the witness Ajay Katara arrayed as the respondent no.3 was enhanced and four more security personnel were deployed round the clock. It is submitted on behalf of the respondent no.2 that the threat perception to the respondent nos.2 and 3 continues till date. The respondent no.3 in submissions that have been made by him orally has reiterated his objections to the prayer made by the petitioner submitting to the effect that there have been at least 24 cases registered against him falsely with allegations levelled against him of rape and molestation at the behest of DP Yadav gang. It has been submitted by the respondent no.3 during the course of submissions that were made by him on 03.12.2020 that his wife had been attacked as late as on 13.11.2020 and an FIR in relation thereto has been lodged and the copy of the same is directed to be placed on record by the respondent no.3. In as much a submission was made on behalf of the petitioner that the enquiry conducted in relation to the said incident indicated that it was false, the State was directed to ascertain the said aspect for today.
On behalf of the State has been submitted the status report dated 03.12.2020 under signatures of the SHO, PS Tilak Marg which in Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:05.12.2020 15:20:02 This file is digitally signed by PS to HMJ ANU MALHOTRA.
continuation to the previous status report submits to the effect that the FIR bearing No.1362/2020, PS Shahibabad, District Ghaziabad, UP lodged under Section 147/307/323/325/506 of the Indian Penal Code, 1860 on the complaint of Ms. Madhu Katara, wife of the respondent no.3 where she had alleged that her spouse Ajay Katara i.e. respondent no.3 herein is the main witness in the famous Nitish Katara murder case and that on 13.11.2020 at about 10 pm when she was coming with her niece on a scooty and when she reached Ambe Hospital, 4-5 persons overtook their scooty, restrained them and said that they would be kidnapping her stating that she is Ajay Katara's wife, when she shouted they attacked her to kill her with iron rods and dragged her on the road and she sustained grievous injuries and after hearing her shouts, 4-5 persons came and saved her life and she further stated that the DP Yadav gang had enmity with her husband and she suspects the DP Yadav gang named Subhash Yadav, Monil Yadav, Jitender Yadav and that Subhash Yadav had been threatening to kill since 15 days after sending the viral video with the intention to take revenge from her husband. As per the status report, SI Icha Ram met the Investigating Officer of the said case and asked him to provide the copy of the FIR and the status of the case wherein it was informed by the Investigating Officer that the complainant had suspected the DP Yadav gang named Subhash Yadav, Monil Yadav, Jitender Yadav and some unknown person for committing the offence mentioned in the FIR. The copy of the FIR has been annexed to the said status report along with also the statement of SI Nagender Singh, the Investigating Officer of that case.
It is the avowed contention on behalf of the petitioner that the petitioner is not named in this FIR and there has been no complaint lodged Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:05.12.2020 15:20:02 This file is digitally signed by PS to HMJ ANU MALHOTRA.
by the respondent nos.2 & 3 against the petitioner at any stage whatsoever. It has been submitted on behalf of the applicant that as and when there are applications for parole filed, there are false FIRs that are got registered by the respondent no.3 to prevent the grant of any such parole and it has been submitted on behalf of the applicant that even the present petition is dated 07.11.2020 with it having been taken up on 09.11.2020 and the FIR in question now lodged at the behest of Madhu Katara, wife of the respondent no.3 was registered on 17.11.2020, which itself bring forth the falsity of the said FIR. It is further submitted on behalf of the applicant that there have been previous observations also in relation to the falsity of allegations that have been made by the respondent no.3 in relation to the alleged threats meted out to him in the Sessions Case No.1780/2019, under Sections 147/148/307/149 of the Indian Penal Code, 1860 as observed by the learned ASJ, Court No.10, Ghaziabad vide judgment dated 03.11.2014. It is further submitted on behalf of the applicant that rather in Leave to Appeal 162/2012 the case filed by the respondent no.3 was held to be false by the High Court of Allahabad and the judgment impugned therein of the learned trial Court holding the case of the respondent no.3 to be false was upheld with the cost of Rs.5,000/- having been imposed on the complainant. It is submitted further on behalf of the applicant that all these cases continue ceaselessly on behalf of the respondent no.3.
Be that as it may as of date there is a FIR lodged on 17.11.2020 by the wife of the respondent no.3 in relation to the alleged attack on her life, the veracity of which would apparently be gauged in the trial. The factum however that the respondent no.3 has been granted enhancement of security pursuant to directions of the Hon'ble Supreme Court in WP (Crl.) 113/2019 Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:05.12.2020 15:20:02 This file is digitally signed by PS to HMJ ANU MALHOTRA.
vide order dated 07.05.2019, has to be taken into account.
Taking into account the factum that the respondent no.3 is the sole witness in the said case qua whom it is alleged that there is grave enmity on the part of DP Yadav gang with the submission made by the respondent no.3 that the petitioner is a close associate of DP Yadav, which aspect cannot be overlooked.
In view thereof, however, as the marriage of the petitioner's daughter is scheduled for the date 06.12.2020 at Kushinagar, it is considered appropriate that the applicant is allowed to attend the said marriage and participate in the said functions. The applicant in the circumstances is allowed custody parole for a period of five days from the date of his release to be taken in the custody of the jail personnel at Delhi to his native place at Tarnbagla, Kumeha, PS Patherwa, Dist. Kushinagar, UP and attendant areas for the marriage ceremonies of his daughter Neema Yadav @ Sasikala Yadav and is directed to be brought back in custody to the jail.
Copy of this order be sent to the Superintendent of Jail, Delhi concerned for effective compliance.
ANU MALHOTRA, J DECEMBER 4, 2020 vm Signature Not Verified Digitally Signed By:SUMIT GHAI Signing Date:05.12.2020 15:20:02 This file is digitally signed by PS to HMJ ANU MALHOTRA.