Kamar Ali Meman @ Cheena vs State Of Chhattisgarh
2022 Latest Caselaw 6259 Chatt

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                                                                          NAFR

             HIGH COURT OF CHHATTISGARH, BILASPUR

                             WPCR No. 81 of 2022
   1. Kamar Ali Meman @ Cheena S/o Yunush Aged About 33 Years R/o
      Bangalipara , Gali No. 02, Police Station Sarkanda , District Bilaspur
      Chhattisgarh.
   2. Kajol Khan @ Ayasha W/o Kamar Ali Meman @ Cheena Aged About
      28 Years R/o Civil Line , Bilaspur , District Bilaspur Chhattisgarh.
                                                                      ---- Petitioners
                                        Versus
   1. State Of Chhattisgarh Through The Principal Secretary, Department
      Of Home (Jail) Mantralaya , Mahanadi Bhawan, Atal Nagar, Raipur ,
      District Raipur Chhattisgarh.
   2. The Jail And Correctional Services Chhattisgarh The Director
      General Prisoner, Jail Road, Raipur District Raipur Chhattisgarh.
   3. State Of Chhattisgarh Through The Collector/ District Magistrate ,
      Bilaspur , District Bilaspur Chhattisgarh.
   4. Superintendent Of Police Bilaspur, District Bilaspur Chhattisgarh.
   5. Jail Superintendent          Central     Jail,   Bilaspur,    District   Bilaspur
      Chhattisgarh.                                                 ---- Respondents
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For Petitioners : Ms. Maya Chaturvijani, Advocate For Respondents/State : Mr. Chitendra Singh, PL

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Hon'ble Shri Justice N.K. Chandravanshi Order On Board 14.10.2022.

1. Challenge in this petition filed under Article 226 of the Constitution of India is to the order dated 06.1.2022 (Annexure P1) and order dated 25.3.2022 (Annexure R2) passed by the District Magistrate, Bilaspur whereby he declined to grant temporary relief / parole to the petitioners / convicts.

2. The petitioners have been convicted for offence under Section 302/ 34 of the Indian Penal Code vide order dated 23.12.2019 passed by Second Additional Sessions Judge, Bilaspur in Sessions trial No.12/2018 and applicant No.1 is languishing in jail since 29.9.2017 and applicant No.2. is languishing in jail since 20.12.2017. After fulfillment of necessary criteria for grant of temporary leave / parole

under Rule 4 and 6 of the Chhattisgarh Prisoner's Leave Rule 1989 (henceforth 'Rule 1989') petitioners made an application for grant of leave / parole. On the said application, after receiving report from the Superintendent of Police, Bilaspur wherein negative opinion has been given for grant of parole to the petitioners, on the ground that in such situation, they may abscond and cause breach of public peace, vide aforesaid order the District Magistrate, Bilaspur reiterating the same objections dismissed the application filed by the petitioners. Family members of the deceased have also raised objection for granting parole to the petitioners under the impression that may be threatened by them.

3. Feeling dissatisfied and aggrieved against that order, the instant writ petition has been filed.

4. Learned counsel for the petitioners would submit that petitioners are languishing in jail since 2017 and while considering their conduct in jail, the Jail Authorities have referred their application for grant of parole, but, the same has been dismissed by the Competent Authority / District Magistrate without any application of mind and only on the basis of objection raised by the Police Authorities. Whereas they have not shown any reasonable ground with regard to their apprehension. It is further submitted that sureties are ready to keep petitioners in their control and one independent witness namely; Shashi Patre has stated no objection for grant of parole to the petitioners despite that District Magistrate, Bilaspur 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 & others 1, wherein it has been specifically 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.

5. On the other hand, learned counsel for the State would submit that considering the objection raised by family members of deceased and 1 Writ Petition (Cr.) No. 29 of 2016, decided on 18.11.2016

the Police Authorities that if petitioners would be granted leave / parole then there may be breach of public peace and they may abscond also, therefore, there is no illegality committed by appropriate authority while rejecting the application of petitioners.

6. Heard learned counsel for the parties and considered their submissions made herein above and also perused the material available on record.

7. Having considered the rival contentions put forth on behalf of either side what is relevant at this juncture is 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. The said Rules in the State of Chhattisgarh are known as 'The Chhattisgarh Prisoner's Leave Rule, 1989'. Rule 4 of the Rules of 1989 provides with 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."

8. 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.

9. 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.

10. 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.

11.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.

12. In the case of Poonam Lata v M.L. Wadhawan and others 2, 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".

13. 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, Hon'ble Justice Dipak Misra, as he then was, 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 :

2 (1987) 3 SCC 347

"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.

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."

14. In the instant case, petitioners' application for grant of temporary relief / parole has been rejected on the ground that family members of deceased have expressed their apprehension that petitioners may cause threat to them and Police Authorities have also raised objection that if petitioners are granted leave then there may be breach of public peace and petitioners may abscond, whereas it has also been mentioned in the impugned order that sureties are ready to keep petitioners under their supervision & control and one independent witness namely; Shashi Patre has also stated no objection to grant parole to the petitioners. Although, family members and Police Authorities have raised objections, but, they have not stated any appropriate ground in respect of their apprehension. Moreover, considering the conduct and behavior of

the petitioners, Jail Authorities have recommended their applications. It is also pertinent to mention here that as per report of SHO, Police Station Sarkanda, there is no previous criminal antecedent of the petitioners.

15. Considering aforesaid facts situations, only because the objection raised by the family members of the deceased and the Police authorities that too without any appropriate ground, the same could not be used as a absolute barrier to grant leave to the petitioners, which is right created under Section 4 & 6 of the Rules, 1989, as has been stated in preceding paragraphs. 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 petitioners are entitled to be released on parole as per Rules of 1989.

16. Accordingly, the concerned District Magistrate is directed to issue necessary release order granting leave / parole to the petitioners 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 petitioners, may also sought security as provided in Section 4 (e) of the Rules, 1989.

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

SD/-

(N.K. Chandravanshi) JUDGE

Ayushi