Tota Ram vs State (G.N.C.T.) Of Delhi
2010 Latest Caselaw 399 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI


+      W.P.(CRL) 1824/2009

               Date of Order: January 25, 2010.

TOTA RAM                             ..... Petitioner
                            Through Mr. Deepak Sharma, Adv.

                       versus


STATE (G.N.C.T.) OF DELHI           ..... Respondent
                     Through Mr. Pawan Sharma with Mr. Praveen
                           Nagar, Advs.


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

       1.      Whether the Reporters of local papers
               may be allowed to see the judgment?

       2.      To be referred to the Reporter or not?

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


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

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

challenging the order passed on 1.10.2009 by the respondent whereby

request of the petitioner for grant of parole was rejected.

2. The petitioner was convicted under Section 302 and 307 IPC

read with Section 34 IPC thereof. The appeal filed by him, being Crl.

Appl. NO.883/2008, was dismissed by the Division Bench of this Court

on 16.1.2009. The petitioner applied for parole on the ground that he

want to file special leave petition before the Hon'ble Supreme Court

against the order of the Division Bench of this Court dismissing the

appeal filed by him. The request of the petitioner has been declined

on the following grounds:

1. Adverse police report regarding breach of law & order.

2. The grounds taken by the convict could not be verified.

3. Grant of parole is primarily an executive function and, therefore,

it is for the Government to consider the request made by a convict for

grant of parole and pass appropriate order on it. If, however, it is

shown that the order passed by the Government is based upon

irrelevant considerations or on non-existing facts or is otherwise

unsustainable in law, it is open to this Court, in exercise of its

jurisdiction under Article 226 of the Constitution to quash such an

order and direct the release of the convict on parole.

4. The appeal filed by the petitioner having been dismissed by a

Division Bench of this Court, special leave petition before the

Supreme Court is the last remedy available to him in law to ventilate

his grievance. Hence, his anxiety to engage the best lawyer of his

choice which he can, and to adequately brief him so as to enable him

to effectively present his case before the Hon'ble Supreme Court

cannot be disputed and in fact this is to be recognized and

appreciated by the Government.

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

to file special leave petition before the Hon'ble Supreme Court,

against an order dismissing the appeal filed by the petitioner, I 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. Coming to the grounds on which parole has been declined, when

asked to elaborate the first ground on which parole has been declined,

the learned counsel for the respondent could only say that the

petitioenr has been convicted in a case of murder and attempt to

murder. This is not the case of the respondent that the petitioner is

involved in a number of cases. He is not claimed to be a history-

sheeter or a desperate criminal. He has no conviction other than the

conviction against which he proposes to file Special Leave Petition.

He is not facing trial in any other case. In these circumstance there

was absolutely no material before the Government from which it could

be reasonably inferred that there was apprehension of breach of law

and order in case parole is granted to the petitioner.

7. Coming to the second ground, I fail to appreciate what the

Government could not verify. The ground taken by the petitioner for

seeking parole that he wants to file a special leave petition before the

Hon'ble Supreme Court. There is no way the Government could have

known whether the petitioner actually intends to prefer special leave

petition or not. His appeal having been dismissed, the presumption is

that he is genuinely interested in filing a special leave petition against

the order passed by this Court. Therefore, the second ground on

which parole has been declined to the petitioner does not make any

sense and was not a valid ground in law.

8. As regard the address of the petitioner, that stand verified as is

evident from the status report which shows that the father and other

family members of the petitioner are residing in village Jinzole, P.S.

Kadar Chowk, District, Badayun, U.P.

In these circumstances there seems to be unreasonable

apprehension of the petitioner jumping the parole and not returning

back to the jail. Another important aspect in this regard is that co-

accused of the petitioner has already been granted parole by this

Court vide order dated 10.8.2009. Since the petitioner is similarly

situated, there can be no justification for declining parole to him.

9. For the reasons given in the preceding paragraphs, the

impugned order is hereby set aside and the petitioner is directed to be

released on parole after one week from today, for a period of four

weeks from the date of release, subject to the following conditions:

1. He shall furnish a personal bond in the sum of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial court.

2. He shall mark his presence either in police station Krishna Nagar, Delhi, or in police station in jurisdiction of which his native place is situated at 10 a.m. on every Sunday.

3. He shall not visit any other place other than his native place.

4. He shall not try to contact or communicate in any manner with any of the witnesses of this case.

5. He will submit a copy of the special leave petition filed by him to the SHO, police station Krishna Nagar within four weeks from the date of his release and will communicate the name of the counsel who filed the special leave petition.

6. He shall comply with such other conditions as the Government may decide to impose upon to him in order to ensure that the petitioner does not jump parole.

The petition stands disposed of in the aforesaid terms.

                                                  V.K. JAIN,J

JANUARY         25, 2010
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