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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No.873 of 2021
Order Reserved on : 04.02.2022
Order Delivered on : 11.03.2022
Baliram Mandavi, S/o Ram Singh Mandavi, Aged About 42 Years,
R/o Village Badal P.S. Narharanpur, District North Bastar, Kanker
Chhattisgarh Through Smt. Raj Bali Mandavi, Wife of Baliram
Mandavi, Aged About 40 Years, R/o Village Badal P.S. Narharanpur,
District North Bastar, Kanker, Chhattisgarh.
---- Petitioner
Versus
1. State Of Chhattisgarh Through Secretary, Department Of Home
Affairs, Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur,
Chhattisgarh
2. Collector/District Magistrate, North Bastar, Kanker District North
Bastar, Kanker, Chhattisgarh.
3. Superintendent of Police, North Bastar, Kanker District North Bastar,
Kanker, Chhattisgarh.
4. Police Station Narharpur, District North Bastar, Kanker, Chhattisgarh.
5. Jail Superintendent, Central Jail Jagdalpur, District Jagdalpur,
Chhattisgarh.
---- Respondents
For Petitioner Mr. A. K. Yadav, Advocate
For Respondents Mr. Amit Singh Chouhan, PL
Hon'ble Justice Smt. Rajani Dubey
C A V Order
1. The present petition has been preferred by the petitioner under Article 226 of the Constitution of India challenging the order dated 10.09.2021 (Annexure-P/1) passed by the respondent No.2, whereby the application filed by the petitioner for grant of leave 2 (parole) under the Chhattisgarh Prisoner's Leave Rule, 1989 has been rejected.
2. The petitioner is a prisoner, who has been convicted by the Sessions Judge, North Bastar Kanker vide judgment dated 22.04.2015 for life imprisonment under the offence punishable under Section 302 of IPC and the petitioner is in jail since 23.09.2013. The petitioner has made an application for grant of leave (parole) under the Chhattisgarh Prisoner's Leave Rule 1989, but the said application has been rejected by the respondent No.2 vide order dated 10.09.2021 for the reason that the petitioner is a habitual offender and he has been booked for serious offence. Feeling dissatisfied and aggrieved with the said order, the instant writ petition has been filed.
3. Learned counsel appearing for the petitioner would submit that the impugned order is arbitrary, illegal and against the law, as the application of the petitioner has not been considered on the touchstone of the Rules. The petitioner fulfills all the conditions and eligibility criteria required for grant of leave under the Chhattisgarh Prisoner's Leave Rule 1989 and he is entitled to be released on parole. It is next contended that there is no clinching material available on record to show that the release of the petitioner on leave is fraught with any danger to public safety, therefore, in the interest of justice, the impugned order deserves to be set aside and the petition be allowed. In support of his argument, learned counsel has placed reliance on the order passed by this Court on 18.11.2016 in WPCR No.29/2016, parties being Rakesh Shende Vs. State of Chhattisgarh & Ors.
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4. Learned State counsel would support the impugned order and submit that the report of Superintendent of Police is against the petitioner, wherein the Gram Panchayat Badal and other villagers have raised objection in granting bail (parole) to the petitioner, therefore, the impugned order has rightly been passed, as such the writ petition deserves to be dismissed.
5. Heard counsel for the parties and perused the material available on record.
6. It is clear from the material available on record that on 05.08.2021, the petitioner filed an application before the respondent authorities for grant of parole. Thereafter on 26.08.2021, the respondent No.2 directed the respondent No.3 to inquire about the matter and submit report thereof. On 01.09.2021, the respondent No.3 submitted its report before the respondent No.2, wherein the objection was stated to be raised by the Gram Panchayat Badal and other villagers as well. The respondent No.2 taking cognizance on the report of the respondent No.3 rejected the application of the petitioner for grant of parole vide impugned order (Annexure-P/1), hence the present petition has been filed.
7. This Court in the matter of Rakesh Shende (supra) has held in paras 22 & 23 as under:-
"22. As noticed herein above, the power of parole has been conferred by the rules to the District Magistrate and the post of District Magistrate is manned in the State of Chhattisgarh by a member of Indian Administrative Service. Therefore, the District Magistrate is required to exercise the power to consider the application for grant of parole. He has to take into consideration the object and need to grant parole to the convicted prisoners by 4 applying their mind and come to a conclusion judiciously. The order passed by the District Magistrate in the instant case would show the complete non-application of mind, as by a cyclostyle order only name and number of prisoner has been inserted and it has been signed by the Additional District Magistrate. The manner in which the order has been passed by the District Magistrate in a mechanical manner is suggestive of betrayal of the confidence which the rule making authority reposed in the District Magistrate in conferring upon him to exercise the power to grant parole.
23. At this stage, it would be appropriate to notice the following binding observation made by the Supreme Court in the matter of Tarlochan Dev Sharma v. State of Punjab & Others1 "16..In the system of Indian democratic governance as contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage there own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The conduct Rules of Central Government Services command the civil servants to maintain at tall times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. No government servant shall in the performance of his official duties or in the exercise of power conferred on him act otherwise than in his best judgment except when he is acting under the direction of his official superior..."
8. Though the petitioner has been convicted and sentenced for a serious offence punishable under Section 302 of IPC, but the petitioner as on date has served more than 8 years jail sentence, therefore, considering the said fact as well as the observation made by the Hon'ble Supreme Court in the case of Trilochan Das (Supra), I am of the considered opinion that the impugned order (Annexure P/1) deserves to be quashed in exercise of jurisdiction of this Court under Article 226 of the Constitution of India and it is accordingly hereby quashed. It is directed that the respondents shall consider the case of the petitioner to grant him the privilege of 1 (2001) 6 SCC 260 5 release/parole in accordance with law and the principles laid down by the Supreme Court in the matter of Trilochan Das (Supra) and this Court in the matter of Rakesh Shinde (Supra) within 45 days from the date of receipt of copy of this order.
9. The writ petition is allowed to the extent indicted herein above. No order as to cost (s).
Sd/-
Rajani Dubey Judge Nirala