Chattisgarh High Court

Manoj Wadekar vs State Of Chhattisgarh on 11 February, 2022

                                  1

                                                                NAFR
        HIGH COURT OF CHHATTISGARH, BILASPUR
              Judgment reserved on :          06/12/2021
              Judgment delivered on: 11/02/2022

                      WPCR No. 641 of 2020
 Manoj Wadekar S/o Late Shri Suresh Wadekar Aged About
36   Years   R/o   Deorikhurd,   Police  Station  Torwa,
District   Bilaspur    (Chhattisgarh),  Present  Address
Purana   Power   House    Torwa,  Police  Station  Torwa,
District Bilaspur (Chhattisgarh)
                                                     Petitioner
                               Versus
1.   State Of Chhattisgarh Through The Secretary, Home
(Jail) Department, Mantralaya, Mahanadi Bhawan, Raipur
(Chhattisgarh), District : Raipur, Chhattisgarh.
2.   The Director General Prisons And Correctional
Services   Chhattisgarh,   Head  Quarter   Prisons   And
Correctional      Services      Chhattisgarh,      Raipur
(Chhattisgarh)
3.   The District Magistrate Bilaspur (Chhattisgarh)
4.   The     Superintendent             Of      Police       Bilaspur
(Chhattisgarh)
5.   The Jail       Superintendent       Central     Jail    Bilaspur
(Chhattisgarh)
                                                    Respondents



For Petitioner                 : Shri Rishi Rahul Soni, Adv.
For State                      : Shri D.P. Singh, Dy. A.G.


        Hon'ble Smt. Justice Rajani Dubey, J.

Order on Board

11/02/2022

1. Heard.

2. The present petition has been filed under article

226 of the Constitution of India challenging the order

dated 16.10.2020 passed by the District Magistrate

Bilaspur (C.G.) whereby the application filed by the

petitioner under Chhattisgarh Prisoner's Leave Rule 1989

for grant of leave (parole) has been rejected.

3. The petitioner is a prisoner who has been convicted

for the offence under Section 376 (N), 34 of IPC and

Sections 3(d), 4, 5(M) & 6 of POCSO Act and is

languishing in jail since 22.03.2017. He made an

application for grant of leave under Chhattisgarh

Prisoner's Leave Rule 1989 but the said application was

rejected by the District Magistrate Bilaspur vide order

dated 16.10.2020. Feeling dissatisfied and aggrieved

against that order, the instant writ petition has been

filed.

4. Mr. Rishi Rahul Soni, learned counsel appearing for

the petitioner would submit that the impugned order is

arbitrary, illegal and against the law as the

application has not been considered in touchstone of the

Rules. As the petitioner fulfills all conditions and

eligibility required for grant of leave under

Chhattisgarh Prisoner's Leave Rule 1989, 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 danger to public safety, therefore, in the

interest of justice, the impugned orders to be set aside

and the petition deserves to be allowed. In support of

his argument, learned counsel for the petitioner placed

reliance in the matter of Rakesh Shende Vs. State of

Chhattisgarh & Ors. passed in WPCR No. 29/2016 by this

Court.

5. Mr. Devendra Pratap Singh, learned Deputy Advocate

General appearing for the State/Respondents has

supported the impugned order and submits that the report

of Superintendent of Police is against the petitioner.

In support of his argument he placed reliance in the

case of Asfaq V. State of Rajasthan passed in (2017) 15

SCC 55.

6. Heard counsel for the parties and perused the

material available on record.

7. It is clear from the material available on record

that petitioner filed an application before the District

Magistrate, Bilaspur. Annexure R3 is the order of

Superintendent of Police dated 10.01.2018 which is as

under:

Fkkuk rksjok {ksrz ds eukst okMsdj firk lqjs'k okMsdj mez 30 lky fuoklh

nsojh[kqnZ] Fkkuk rksjok] ftyk fcykliqj }kjk Fkkuk rksjok] {ksrzkarxZr ekjihV] lnks "k

vojks/k dj ekjihV dj tku ls ekjus dh /kedh nsuk #i;s iSls dh ekax djuk] gR;k

dk iz;kl cyok ,oa voS/k #i ls dVVk j[kuk fQjkSrh ds fy, vigj.k ,oa cykRdkj

tSls vijk/k ?kfVr fd;k gS] tks Fkkuk rksjok esa ntZ gSA blds fo#) pyu esa fdlh

Hkh izdkj dk lq/kj ifjyf{kr ugha gqvk gS rFkk vijkf/kd xfrfof/k;ksa esa yxkrkj lfdz;

gS] ,oa {ksrz esa vkrad QSykdj j[kk gSA cnek'k ds vkpj.k dks ns[krs gq, xq.Mk lwph esa

yk;k tkdj yxkrkj fuxjkuh dj fu;arz.k esa j[kuk vko';d izrhr gksrk gSA

vr% eukst okMsdj firk lqjs'k okMsdj mez 30 lky fuoklh nsojh[kqnZ] Fkkuk rksjok]

ftyk fcykliqj dks xq.Mk lwph esa ykus dk vkns'k fn;k tkrk gSA

8. In the case of Asfaq (supra)Hon'ble Supreme

Court held at paras 21 & 22 as under:

"21..To sum up, in introducing penal reforms, the State that runs the administration on behalf of the society and for the benefit of the society at large cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty. It is for this reason that in introducing such reforms, the authorities cannot be oblivious of the obligation to the society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty (by a Court) of having perpetrated a criminal act. One of the discernible purposes of imposing the penalty of imprisonment is to render the society immune from the criminal for a specified period. It is, therefore, understandable that while meting out humane treatment to the convicts, care has to be taken to ensure that kindness to the convicts does not result in cruelty to the society. Naturally enough, the authorities would be anxious to ensure that the convict who is released on furlough does not seize the opportunity to commit another crime when he is at large for the timebeing under the furlough leave granted to him by way of a measure of penal reform.

22..Another vital aspect that needs to be discussed is as to whether there can be any presumption that a person who is convicted of serious or heinous crime is to be, ipso facto, treated as a hardened criminal. Hardened criminal would be a person for whom it has become a habit or way of life and such a person would necessarily tend to commit crimes again and again. Obviously, if a person has committed a serious offence for which he is convicted, but at the same time it is also found that it is the only crime he has committed, he cannot be categorised as a hardened criminal. In his case consideration should be as to whether he

is showing the signs to reform himself and become a good citizen or there are circumstances which would indicate that he has a tendency to commit the crime again or that he would be a threat to the society. Mere nature of the offence committed by him should not be a factor to deny the parole outrightly. Wherever a person convicted has suffered incarceration for a long time, he can be granted temporary parole, irrespective of the nature of offence for which he was sentenced. We may hasten to put a rider here, viz. in those cases where a person has been convicted for committing a serious office, the competent authority, while examining such cases, can be well advised to have stricter standards in mind while judging their cases on the parameters of god conduct, habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquillity etc."

9.Annexure R/1 is the certificate of the Thana Incharge

and Annexure R/2 is a list of previous criminal

antecedents of the petitioner which shows that 26 cases

are pending against the petitioner.

10. Having regards to the aforesaid reports, it cannot

be said that the authorities have not taken into account

relevant considerations while rejecting the request of

parole made by the petitioner.

11. The petitioner is convicted under Section 376 (N),

34 of IPC and Sections 3(d), 4, 5(M) & 6 of POCSO Act,

therefore, he is supposed to remain in jail. In such a

situation, the petitioner can, after some time, renew