Nanaku @ Bhupendra vs State Of Chhattisgarh
2022 Latest Caselaw 6567 Chatt

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                                                                            NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                            WPCR No. 581 of 2022

        Nanaku @ Bhupendra S/o Shri Pardeshi Aged About 30 Years
        R/o Darrabhatha, Post Sakarra, Police Station Malkharouda,
        District Janjgir Champa Chhattisgarh.
                                                                     ---- Petitioner
                                      Versus
     1. State Of Chhattisgarh Through The Secretary, Home (Jail)
        Department, Mantralaya, Mahanadi Bhawan, Raipur CG
     2. The Director General, Prisons And Correctional Services
        Chhattisgarh, Head Quarter Prisons And Correctional Services
        Chhattisgarh, Raipur CG
     3. The Collector -Cum-District Magistrate Janjgir Champa CG
     4. The Superintendent Of Police, Janjgir Champa CG
     5. The Jail Superintendent, Central Jail Bilaspur CG
                                                                 ---- Respondents
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For Petitioner : Shri Rishi Rahul Soni, Adv.

For Respondents/State : Shri Ashish Gupta, Panel Lawyer.

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Hon'ble Shri Justice N.K. Chandravanshi Order on Board 3-11-2022

1. The present petition has been filed by the petitioner under Article 226 of the Constitution of India against order dated 29-1-2022 (Annexure-P-1) passed by respondent No.3 / the Collector-cum-District Magistrate, Janjgir Champa (CG) whereby the application for grant of temporary release/parole to the petitioner has been rejected.

2. Learned counsel for the petitioner would submit that vide judgment dated 8-5-2018 passed by the 1st Additional Sessions Judge, Sakti, the petitioner was convicted for the offence punishable under Section 363, 366A of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short, 'POCSO Act') and sentenced to undergo life imprisonment and other rigorous imprisonment, and, he is in jail since 14-3-2017. It is further submitted that after obtaining necessary requirement for benefit of temporary release under the

Chhattisgarh Prisoner's Leave Rules, 1989 (henceforth 'Rules 1989'), he filed an application for grant of temporary release/ parole, which has been rejected by the District Magistrate, Janjgir Champa vide impugned order dated 29-1-2022 ( Annexure P-1 ). He submits that the impugned order is perse illegal and against the object of the Rules, 1989. He also submits that the sureties of the petitioner are ready to furnish their surety and ward Panch has also stated no objection to allow parole to the petitioner. Despite that, only on the basis of objection raised by the family members of victim girl and police, application of the petitioner has been rejected. It is, therefore, prayed that the petition may be allowed and the petitioner may be granted temporary release/ parole.

3. Learned counsel for the State, vehemently opposes the petition and submits that the petitioner has been convicted for heinous offence including under POCSO Act and father of the victim girl has stated his apprehension that if parole is granted to the petitioner, he may commit other offence with his family, therefore, police has also raised objection

4. I have heard learned counsel for the parties and considered their submissions and also perused the material available on record.

5. Having considered the rival contentions put forth on behalf of both the parties, it is relevant to mention here that the State Government has enacted specific rules in respect of grant of leave to the prisoners, in exercise of its power conferred upon it under the provisions of the Prisoners Act, 1900. Said Rules in the State of Chhattisgarh are known as 'The Chhattisgarh Prisoner's Leave Rules, 1989'. Rule 4 of the Rules of 1989 provides the conditions of leave, which reads thus :-

"4. Conditions of Leave.--The prisoners shall be granted leave under sub-section (1) of Section 31-A of the Act on the following conditions, namely :--

(a) He fulfills the conditions laid down in Section 31-A of the Act;

(b) He has not committed any offence in jail between the date of application for leave and receipt of the order of such leave;

(c) The releasing authority must be satisfied that the leave may be granted without detriment to the public interest;

(d) He gives in writing to the Releasing Authority the place or places which he intends to visit during the period of his leave and undertake not to visit any other place during such period without obtaining prior permission of the Releasing Authority in that behalf; and

(e) He should furnish security to the satisfaction of the Releasing Authority if such security is demanded by the Releasing Authority."

6. 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.

7. 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, leave can be refused as a matter of routine without any cogent reason.

8. The responsibility for the action under the Rules, 1989 has been entrusted to the District Magistrate, hence, it is expected that such responsibility be complied with considering the object of granting parole.

9. The object of granting parole is to make necessary efforts to rehabilitate a convict prisoner in the main stream of society based on "Karuna" (compassion) as well as on human consideration.

10. In the case of Poonam Lata v M.L. Wadhawan and others1, the Supreme Court while highlighting the object of parole has observed that "release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty or lessening of restrictions to a convict prisoner".

11. Similar matter had come up before the Madhya Pradesh High Court in 2002 and relying upon the aforesaid judgment of the Supreme Court, the Madhya Pradesh High Court in the case of Jeevan Singh Verma Vs. State of M.P. & Others, 2002 (1) M.P.L.J. 347, while deciding the case after referring to the provisions of the Prisoners Act held as under :

"7. Now the question that falls for consideration is whether the petitioner should be granted the benefit of parole or temporary release. In this context I may profitably refer to the decision rendered in the case of Inder Singh and Anr. v. The State (Delhi Administration) [1978 SCC (Cri) 564] wherein their Lordships emphasized on rehabilitation and quoted a passage from Lewis Moore with approval. The said passage reads as under :

"You cannot rehabilitate a man through brutality and disrespect. Regardless of the crime a man may commit, he still is a human being and has feelings. And the main reason most inmates in prison today disrespect their keepers, is because they themselves (the inmates) are disrespected and are not treated like human beings. I myself have witnessed brutal attacks upon inmates and have suffered a few myself, if he becomes violent. But many a time this restraining has turned into a brutal beating. Does this type of treatment bring about respect and rehabilitation? No.! It only instills hostility and causes alienation toward the prison officials from the inmate or inmates involved.

1 (1987) 3 SCC 347

If you treat a man like an animal, then you must expect him to act like one. For every action, there is reaction. This is only human nature. And in order for an inmate to act like a human being, you must treat him as such. Treating him like an animal will only get negative results from him."

In the aforesaid case the Apex Court laid emphasis on the concept of 'Karuna' and directed that parole should be allowed to the convicts if they show responsibility and trustworthiness. To quote-

" Parole will be allowed to them so that theirfamily ties may be maintained and inner tensions may not further build up."

Thus parole has been treated as a curative strategy keeping in view the human dignity which is the quintessence of Article 21 of the Constitution.

12. Applying aforesaid principle of law laid down by Hon'ble Apex Court, if it is considered on the facts of the instant case, it is found that as per report of SHO, PS Malkharoda dated 23-11-2021 (Annexure R-2), instant case is the first offence registered against the petitioner and he is not a habitual offender. As per report of Superintendent of Police, Janjgir Champa (Annexure R-1) and Annexure R-2 also, the sureties of petitioner are ready to keep him in their control. Ward Panch has also stated no objection to grant parole to the petitioner. Despite that, only on the ground of objection raised by father of the victim girl, that the petitioner may commit other offence with his family and on the basis of that, police has also raised objection, therefore, application of petitioner has been dismissed by the District Magistrate, but such reasons cannot be considered as appropriate ground to decline grant of temporary release/parole to the petitioner which is the right created under Rule 4 & 6 of the Rules, 1989, in favour of the convict, as has been stated in preceding paragraphs.

13. The Rules of 1989 have been enacted with certain object, therefore, application for grant of parole should be considered bearing in mind those objects. By rejection of such application on any unreasonable ground, the object of framing aforesaid Rules would be frustrated. Therefore, in the facts of the case, the petitioner is entitled to be released on parole as per Rules of 1989.

14. Accordingly, the District Magistrate is directed to issue necessary release order granting temporary release / 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 District Magistrate while allowing the application for grant of parole to the petitioner, may also seek surety as provided in Section 4 (e) of the Rules, 1989.

15. In the result, the petition stands disposed of with the above observation/direction.

Sd/-

(N.K. Chandravanshi) JUDGE

Pathak/-