The Chhattisgarh High Court recently comprising of a bench of Justice N. K. Chandravanshi granted relief to a rape convict who was denied parole on the apprehension expressed by the Incharge of Police Station that since the convict belongs to the Naxal affected area, there is a possibility of his absconding. (Kamlesh Kumar v. State Of Chhattisgarh and others)
Facts of the case
The present petition has been filed by the petitioner against order dated 18.3.2021 (Annexure-P/1) passed by respondent No.4/Additional District Magistrate, Gariyaband (CG) whereby the application for releasing the petitioner/convict on parole of 12 days including journey period has been rejected.
The petitioner is a prisoner, who has been convicted for commission of offence under Sections 376(2)(B)(II), 376(2B) and 506B of Indian Penal Code and is languishing in Jail for about 06 years. He made an application for grant of leave under Rule 4 and 6 of the Chhattisgarh Prisoner’s Leave Rule 1989 (henceforth ‘Rule 1989’). On the said application, the Additional District Magistrate called report from Superintendent of Police, Distt. Gariyaband, who, in turn, called report from Incharge Police Station Mainpur Distt. Gariyaband, who submitted adverse report stating therein that since the petitioner belongs to naxal affected area, there is possibility that he would abscond after being released on parole. Relying upon the report, which was forwarded by Superintendent of Police, Gariyaband, learned Additional District Magistrate, Distt. Gariyaband by its order dated 18.3.2021 rejected the application reiterating the reasons mentioned by the Incharge Police Station Mainpur Distt. Gariyaband, that on being released, there is possibility of absconding by the petitioner as he belongs to naxal affected area.
Feeling dissatisfied and aggrieved against that order, the instant writ petition has been filed.
Contention of the Parties
Learned counsel for the petitioner submitted that the application for grant of parole/leave has been dismissed by the competent authority without any application of mind and only on the basis of remarks made by Incharge Police Station Mainpur Distt. Gariyaband that since the petitioner belongs to naxal affected area, there is possibility of his absconding, whereas aforesaid objection raised by Incharge Police Station Mainpur Distt. Gariyaband, is not based on any cogent facts and reason.
He further submitted that the victim and Sarpanch of village Mainpur have stated that they have no objection, if the petitioner is granted parole. It was further submitted that Superintendent (Jail), Central Jail, Raipur, after finding other conditions as provided in Section 4 of the Rules, 1989, had forwarded the application filed by the applicant alongwith his recommendation, despite that, the Additional District Magistrate, Gariyaband has dismissed the application without considering the object of granting parole to jail inmates and as has been observed by Supreme Court in various cases and also the observations of Coordinate Bench of this Court in the matter of Rakesh Shende v. State of Chhattisgarh & others1 , wherein it has been held that all aspects of criminal justice fall under the umbrella of Articles 14, 19 and 21 of the Constitution of India and, therefore, impugned order deserves to be set aside and the petition may be allowed.
On the other hand, learned counsel for the State controverted the submissions made by counsel for the petitioner. He submitted that applicant has been convicted for the offence of rape and has been sentenced for 12 years of imprisonment, therefore, objection raised by the Incharge Police Station Mainpur Distt. Gariyaband, could not be overlooked and on the basis of such objection, learned Additional District Magistrate has rightly declined to exercise his power for grant of temporary release of the petitioner.
Court's observations and order
The bench at the very outset noted, "Rule 6 provides that “if the District Magistrate, after making such enquiry as he may consider necessary, is satisfied that the request for grant of leave can be granted without detriment to public interest, he shall issue to the Superintendent a duly signed and sealed warrant in Form 'A' to the prisoner.
Note appended with Rule 6(a) provides that while considering the matter, District Magistrate may consult with District Superintendent of Police, who would also obtain the opinion of Gram Panchayat. Perusal of note attached to Rule 6(a) clearly reflects that there is only one ground on which leave can be refused by the District Magistrate i.e. only in case where he is satisfied that the release of the prisoner is fraught with danger to the public safety and under no other circumstances can the leave be refused as a matter of routine without any cogent reason.
The responsibility for the action under Rule 1989 has been entrusted to the District Magistrate, hence, it is expected that such responsibility be complied with considering the object of granting parole"
The bench allowing the application remarked, "Rules of 1989 have been enacted with certain object, therefore, application for grant of parole should be considered bearing in mind to those objects. Rejection of such application on any of the ground, which is not reasonable, the object of framing aforesaid Rule would be frustrated. Therefore, in the facts of the case, the petitioner is entitled to be released on parole as per Rules of 1989.
Accordingly, the Additional District Magistrate is directed to issue necessary release order granting leave / parole to the petitioner for the period applied for within a period of 15 days from the date of presentation of certified copy of this order. The Additional District Magistrate while allowing the application for grant of parole to the petitioner, may also seek security as provided in Section 4 (e) of the Rules, 1989."
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