Smt. Sharda Jain vs State
2010 Latest Caselaw 837 Del

Citation : 2010 Latest Caselaw 837 Del
Judgement Date : 15 February, 2010

Delhi High Court

Smt. Sharda Jain vs State on 15 February, 2010

Author: V. K. Jain

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(Crl.) No. 1840/2009

                         Date of Order: 15th February 2010

#       SMT. SHARDA JAIN                 ..... Petitioner
                Through: Ms. Anita Abraham, Advocate.

                         versus

$       STATE                                ..... Respondent
                     Through: Sh. Ranjit Kapoor, Addl. Standing
                              Counsel and Sh. Asim for State.


*       CORAM:
        HON'BLE MR. JUSTICE V.K. JAIN

        1.    Whether the Reporters of local papers
              may be allowed to see the judgment?               No

        2.    To be referred to the Reporter or not?            No

        3.    Whether the judgment should be
              reported in the Digest?                           Yes


: V.K. JAIN, J. (Oral)

1. This is a petition under Article 226 of the Constitution of

India, challenging the order dated 23rd November, 2009 whereby

request of the petitioner for grant of Parole was rejected only on

the ground that she had availed seven days interim bail in that

year.

2. The petitioner was convicted in the case registered vide FIR

No. 313/02 U/s 364/302/201/120B IPC and read with Section

25/27 A.Act at PS Keshav Puram. The appeal filed by the

petitioner, being Crl.A.No.51/2007 was dismissed by Division

Bench of this Court vide Judgment dated 27th August, 2009.

The petitioner intends to prefer Special Leave Petition before

the Hon'ble Supreme Court against the Judgment of the

Division Bench, whereby her appeal has been dismissed.

3. The grant of Parole being essentially an executive function, it

is for the Government to consider the request made by the

convict for the purpose and to pass an appropriate order on

it. If however, the order passed by the Government, declining

parole is based upon irrelevant ground or extraneous

considerations or is otherwise wholly unsustainable being an

order which no reasonable person could, in the facts and

circumstances of the case have passed or is totally perverse

or arbitrary, it is open to the Court, in exercise of its powers

under Article 226 of the Constitution to set aside such an

order and direct release of convict on parole.

4. The appeal filed by the petitioner having being dismissed by

Double Bench of this Court, Special Leave Petition before the

Hon'ble Supreme Court is the only legal remedy available to

her and is the last resort which she can have in order to

prove the innocence which she claims. Therefore, anxiety of

the petitioner to engage the best lawyer she can and to brief

her fully and adequately in order to enable him to present

her case effectively and to her complete satisfaction before

the Hon'ble Supreme Court needs to be appreciated and

recognized by the Government.

5. While deciding WP(Crl) No. 1749/2009 wherein parole was

sought to the Special Leave Petition before the Hon'ble

Supreme Court, against an order dismissing the appeal filed

by the petitioner, inter alia observed as under:-

"6. The request for grant of parole, to file SLP before the Hon'ble Supreme Court against conviction and sentence for a serious offence certainly stands on a stronger footing than the desire to maintain links with the society and to reunite with the family. Hence, ordinarily such requests ought to be allowed unless there are reasonable grounds which warrant taking a different view in a particular case. Such grounds may include:

i) A reasonable apprehension, based upon material available with the Government such as the circumstances in which the offence is alleged to have been committed by him and the other cases if any in which

he is involved, that the petitioner, if released on bail may not return back to Jail to undergo the remaining portion of the sentence awarded to him;

ii) A serious apprehension of breach of law and order or commission of another offence by the petitioner if he comes out on parole;

iii) Past conduct of the petitioner such as jumping the bail or parole granted earlier to him;

iv) A reasonable possibility of the petitioner trying to intimidate or harm those who have deposed against him or their relatives.

It is neither possible nor desirable to exhaustively lay down all such grounds as would justify denial of parole in a particular case. Each case has to be examined by the Government dispassionately and with an open mind, taking into consideration all relevant facts and circumstances."

6. The only ground on which parole has been declined to the

petitioner is that she had availed interim bail in the year

2009. Grant of interim bail during the pendency of an appeal

can never be a valid ground for rejecting parole for the

purpose of filing the Special Leave Petition before the

Hon'ble Supreme Court, the consideration for grant of

parole being altogether different from those for grant of

interim bail, which is granted, for a limited period, and for a

specific purpose. Hence, the impugned order passed by

Government cannot be sustained and is liable to be quashed

accordingly.

7. The impugned order dated 23/11/2009 whereby parole was