Rajender @ Rajesh @ Raju vs State Of Nct Of Delhi
2010 Latest Caselaw 283 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                             W.P.(Crl.) No.35 /2010


                                  Date or Order: 19th January 2010


!      RAJENDER @ RAJESH @ RAJU            ..... Petitioner
                      Through: Mr. Anish Dhingra, Adv.

                         versus

$      STATE OF NCT OF DELHI                    ..... Respondent
                      Through:         Mr. Pawan Sharma, Standing
                                       Counsel with Mr. Praveen Nagar,
                                       Adv.
*      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?                       No


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

1. This is a petition under Article 226/227 of the Constitution

challenging the order of the respondent dated 9 th December, 2009

whereby the request of the petitioner for grant of parole was

rejected on the following grounds:-

"1 Adverse police report that he may jump the parole.

2 The convict can file SLP from the Jail itself where free legal

aid is available."

2. The petitioner was convicted under Sections 364/302/201/120-B of

IPC vide judgment dated 21st December, 2006 and was sentenced

vide Order on Sentence dated 22 nd December, 2006. The appeal

filed by him was dismissed by this Court vide judgment dated 27 th

August, 2009. The petitioner, vide his application sent to the

Government on 14th September, 2009, sought grant of parole on

the ground that he wanted to file a Special Petition before the

Hon'ble Supreme Court against the judgment of this Court.

3. Admittedly, co-accused of the appellant has been granted parole

by the Government for the purpose of enabling him to file a

Special Leave Petition before the Hon'ble Supreme Court. In the

absence of facts and circumstances distinguishing to case of the

petitioner from that of his co-accused, there can be no justification

for denying parole to the petitioner while granting it to his co-

accused, when both of them had sought parole on the same

ground. No such distinguishing features has been shown to exist.

4. Though primarily it is the function of the executive to consider a

request for grant of parole and take appropriate decision on it, it is

open to this Court in exercise of its writ jurisdiction under Article

226 of the Constitution to set aside an order refusing parole, if it is

shown that the order passed by the Government is based upon

irrelevant considerations or is otherwise unsustainable in law.

5. The appeal filed by the petitioner having been dismissed by this

Court Special Leave Petition before the Hon'ble Supreme Court is

his last resort and the only remedy available to him in law to prove

his innocence. Therefore, his anxiety to engage the best lawyer

he can and to brief him adequately to present his case before the

Hon'ble Supreme Court cannot be disputed and needs to be

appreciated and recognized by the Government. In fact I presume

that recognizing the genuineness of the ground on which parole

has been sought, the Government has decided to grant parole to

his co-accused.

6. The Status Report filed by the respondent does not disclose what

was the material before the respondent, from which it be inferred

that the petitioner was likely to jump parole. Mere reference to

Police Report, without informing the Court as to on what grounds

such an apprehension was expressed by the police is not sufficient

to deny parole, particularly when the co-accused has already been

granted that benefit. No doubt, there will always be a possibility of

a convict jumping to parole. But, then, this is also a possibility in

every case not only of grant of parole but, also of grant of bail.

Unless some material is placed before the Court, which would

justify drawing such an inference, it is not open to the Court to

deny parole merely on the ground of possibility of the convict

jumping the parole. If this is done, it will not be possible to grant

parole, or even bail, in any case.

7. For the reasons given in the above mentioned paragraphs the

order passed by the Government declining the parole to the

petitioner cannot be sustained and is hereby quashed. The

petitioner is directed to be released on bail for one month from

date of his release, subject to the following conditions:-

"1 He shall furnish a Personal Bond in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of the Trial Court.

               2     He shall not visit any other place other
               than, Ghaziabad and Delhi.

               3     He shall mark his presence in Police

Station Keshavpuram in the morning of every Sunday.

4 He shall submit a copy of his Special Leave Petition to SHO Police Station Keshav Puram within four weeks from the date of his release.

5 He will abide by such other terms and conditions as the Government may impose within one week from today in order to ensure that he does not jump the parole.

8. The W.P.(CRL) 35/2010 stands dispose of with these directions.

V.K. JAIN (JUDGE) JANUARY 19, 2010 J