Chattisgarh High Court
Rajesh @ Rajendra Porte vs State Of Chhattisgarh on 11 March, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on 07/02/2022
Order Delivered on 11/03/2022
WPCR No. 333 of 2021
Rajesh @ Rajendra Porte S/o Shri Dashrath Porte Aged About
26 Years R/o Village Kalmiduggu, Dhanuharpara, Post
Jamnipali, Police Station Darri, District Korba, Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh, Through : The Secretary, Home (Jail)
Department, Mantralaya Mahanadi Bhawan, Raipur, District :
Raipur, Chhattisgarh.
2. The Director General Prisons And Correctional Services
Chhattisgarh, Head Quarter Prisons And Correctional Services
Chhattisgarh, Raipur, District : Raipur, Chhattisgarh.
3. The Collector Cum District Magistrate Korba, District : Korba,
Chhattisgarh.
4. The Superintendent of Police Korba, District : Korba,
Chhattisgarh.
5. The Jail Superintendent Central Jail Bilaspur, District :
Bilaspur, Chhattisgarh.
---- Respondents
For Petitioner : Shri Rishi Rahul Soni, Adv.
For State/respondents : Shri Anurag Verma, P.L.
Hon'ble Smt. Justice Rajani Dubey, J.
Order on Board
Heard.
1. The present petition has been filed under article 226 of the
Constitution of India challenging the order dated 24.11.2020
passed by the District Magistrate Korba (C.G.) whereby the
application filed by the petitioner under Chhattisgarh Prisoner's
Leave Rule 1989 for grant of leave (parole) has been rejected.
2. The petitioner is a prisoner who has been convicted for the
offence punishable under Section 4 of the Protection of Children
from Sexual Offences Act and is languishing in jail since
03.08.2018. 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 Korba vide order dated
24.11.2020. Feeling dissatisfied and aggrieved against that order,
the instant writ petition has been filed.
3. 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. He also submits that during trial the
petitioner was in jail from 23.12.2013 to 09.01.2014 and after
conviction, the petitioner is in jail since 03.08.2018, 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.
4. Mr. Anurag Verma, learned Penal Lawyer appearing for the
State/Respondents has supported the impugned order and submits
that the report of Superintendent of Police is against the petitioner.
5. Heard counsel for the parties and perused the material
available on record.
6. It is clear from the material available on record that petitioner
filed an application before the District Magistrate, Korba and the
learned District Magistrate forwarded it to the Superintendent of
Police, District-Korba and the Superintendent of Police, in turn,
made inquiry and has submitted his report on 25.09.2020, annexed
herewith as Annexure- P/4, which is as under:-
fo"k;kafdr ,oa lanfHkZr i= dk voyksdu djus dk d"V djsaA ftlesa canh
dzekad [email protected] uke jkts'k mQZ jktsUnz firk n'kjFk iksrsZ mez 26 o"kZ lk-
fuoklh xzke dyehMqXxq /kuqgkjikjk iks- teuhikyh Fkkuk njhZ ftyk dksjck ds isjksy
vodk'k vkosnu dh tkap Fkkuk njhZ ls djk;k x;kA canh dk tekur QksVks flag
firk fl;k jke ,oa HkwisUnz dqekj Jhokl firk Lo- ykythr Jhokl ds }kjk fy;k
x;k gSA ftUgksaus isjksy vodk'k ds nkSjku canh dks vius fu;a=.k esa j[kus dk
fyf[kr v'oklu fn;s gSA okMZ ik"kZn ds }kjk canh dks isjksy vodk'k ij NksM+s tkus
ds laca/k esa ik"kZn ,oa eksyYysoklh ds }kjk vkifRr fd;k x;k gSA canh /kkjk 04
ikDlks ,DV xaHkhj vijk/k dk vijk/kh gS ,oa okMZ ik"kZn ds vkifRr ntZ djkus ds
QyLo:i canh dks isjksy vodk'k esa NksM+us ij Qjkj gksus ls badkj ugha fd;k tk
ldrk gSA
vr% canh dzekad [email protected] uke jkts'k mQZ jktsUnz firk n'kjFk mez 26 o"kZ
lk- xzke dyehMqXxq /kuqgkjikjk iks- teuhikyh Fkkuk njhZ tyk dksjck dks isjksy
vodk'k fn;s tkus ds laca/k esa vuq ' kal k ugha djrs gq, izfrosnu voyksdukFkZ
lknj izsf"kr gSA
7. This Court in the matter of Rakesh Shende Vs. State of
Chhattisgarh & Others in Writ Petition (Cr.) No. 29/2016 vide
order dated 18.11.2016 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 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
1 (2001) 6 SCC 260
when he is acting under the direction of his
official superior..."
08. Looking to the facts and circumstances of the case and
principles laid down by the Hon'ble Supreme Court in the case
of Trilochan Das(Supra), I am of the considered opinion that
the order passed by the District Magistrate (Annexure P/1)
deserves to be quashed in exercise of jurisdiction of this Court
under Article 226 of the Constitution of India and is accordingly
quashed. It is directed that the respondents shall consider the
case of the petitioner to grant of him the privilege of
release/parole in accordance with law indicated principles laid
down in the matter of Rakesh Shinde (Supra) & Trilochan
Das (Supra) within forty five days from the date of production
of a copy of this order.
09. The writ petition is allowed to the extent indicted
hereinabove. There shall be no order as to costs.
Sd/-
(Rajani Dubey)
Judge
H.L. Sahu
