Somesh Gupta vs State Of The Nct Of Delhi
2010 Latest Caselaw 82 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      W.P.(Crl.) No.1749/2009


                           Date or Order: January 11, 2010

#      SOMESH GUPTA                      ..... Petitioner
!                 Through Mr.Sumeet Verma, Advocate.

                           versus

$      STATE OF THE NCT OF DELHI            ..... Respondent
^                   Through Mr.Akshay Bipin, ASC.


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

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

       2.      To be referred to the Reporter or not?   YES

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


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

1. This is a petition under Section 482 of the Code of Criminal

Procedure, for quashing the order dated 6.10.2009, whereby

request of the petitioner for grant of parole for three months, in

order to enable him to file a Special Leave Petition before the

Hon'ble Supreme Court, against the judgment of this Court in

Crl.A.No.23/2009, was rejected.

2. The petitioner was convicted for the offence punishable

under Section 376(2)(g) of IPC and was sentenced to undergo

imprisonment for twelve years. The appeal filed by him has

been dismissed by this Court vide judgment dated 28.5.2009.

The petitioner now intends to prefer Special Leave Petition

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

Court, dismissing the appeal filed by him.

3. In Sunil Fulchand Shah vs. Union of India and others,

(2000) 3 SCC 409, a Constitutional Bench of the Hon'ble

Supreme Court while considering parole under section 12(1) and

12(1)(A) of the Conservation of Foreign Exchange and

Prevention of Smuggling Activities Act, 1974 observed that since

the parole may be granted by the Government or its

functionaries in accordance with Parole Rules and administrative

instructions framed by the Government, which are

administrative in character, a detenu has to approach the

Government concerned or the Jail Authorities for securing

release on parole. The Hon'ble Court, inter alia, held as under:-

"I must, however, add that the bar of judicial intervention to direct temporary release of a detenu would not affect the jurisdiction of the High Courts under Article 226 of the Constitution or of this Court under Article 32, 136 or 142 of the Constitution to direct the temporary release

of the detenu, where request of the detenu to be released on parole for a specified reason and/or for a specified period, has been, in the opinion of the Court, unjustifiably refused or where in the interest of justice such an order of temporary release is required to be made. That jurisdiction, however, has to be sparingly exercised by the Court and even when it is exercised, it is appropriate that the Court leaves it to the administrative or jail authorities to prescribe the conditions and terms on which parole Is to be availed of by the detenu. "

4. In Smt. Poonam Lata vs. M.L. Wadhawan and others, 1987

Cri.L.J. 1130 the Hon'ble Supreme Court, inter alia, observed as

under:

"Since the Act authorizes the appropriate Government to make an order of temporary release, invariably the detenu seeking to have the benefit of temporary relief must go to the appropriate Government first. It may be that in a given case the Court may be required to consider the propriety of an adverse order by the government in exercise of the jurisdiction under Section 12 of the Act. On the principle that exercise of administrative jurisdiction is open to judicial review by the superior court, the High Court under Article 226 or this Court under Article 32 may be called upon in a suitable case to examine the legality and propriety of the governmental action. There is no scope for entertaining an application for parole by the Court straightway. The legislative scheme, keeping the purpose of the statute and the manner of its fulfillment provided thereunder, would not justify entertaining of

an application for release of a detenu on parole"

5. In Inder Singh vs. State, AIR 1978 SC 1091, the

petitioners, one of whom was aged 16 years and the other barely

20 years were convicted under section 302 of IPC. While

maintaining their conviction the Hon'ble Supreme Court felt that

humanizing influences must to be brought to bear upon them so

that a better sense of responsibility, a kindlier attitude,

behavioral maturity and values of a good life may be generated

under controlled conditions. The Hon'ble Court directed that if

the behavior of the petitioner showed responsibility and

trustworthiness, liberal though cautious, parole be allowed to

them so that their family ties may be maintained and inner

tensions may not further build up and after every period of one

year, they should be enlarged on parole for two months.

6. The request for grant of parole, to file SLP before the

Hon'ble Supreme Court against conviction and sentence for a

serios 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.

7. Since grant of parole is primarily a function assigned to the

executive, it is for the Government, to consider the request made

by a convict for grant of parole and pass appropriate orders on

it. If, however, it is shown that the order passed by the

Government declining parole to the convict, is based upon

grounds which are not relevant, or is otherwise wholly

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

its jurisdiction under Article 226 of the Constitution, to set aside

such an order and direct release of the convict on parole.

8. The appeal filed by the petitioner having been dismissed by

this Court, Special Leave Petition before the Hon'ble Court is the

last remedy available to him in law to prove the innocence he

claims. Therefore, his anxiety to engage the best lawyer he can

and to adequately brief him so as to enable him to present his

case effectively before the Hon'ble Supreme Court needs to be

understood and appreciated by the Government.

9. The impugned order would show that parole has been

declined to the petitioner on the following grounds:-

1. As per police report address given by the convict

could not be verified.

2. The convict can file SLP from jail itself, where free

legal aid is available.

10. As regards the first ground, a perusal of the status report

filed by SHO, New Ashok Nagar, would show that the address of

the petitioner has since been verified and it has been found that

his mother Smt. Munni Devi, is staying at House No.218, Gali

No.4, Near Pir Baba, behind CRPF Camp, Prashant Garden,

Ghaziabad, U.P. along with his youngest son Kakesh. The house

in which she is living is stated to be owned by her. Thus, the

family of the petitioner has a fixed place of residence in

Ghaziabad. Hence, the first ground on which parole has been

declined to the petitioner is no more available in view of his

address having been verified by the Police.

11. As regards the second ground, as noted earlier, Special

Leave Petition before the Hon'ble Supreme Court being the last

resort of the petitioner, if he wants to engage a private counsel

of his choice. No fault can be found with such a decision. If the

petitioner engages a lawyer of his choice and is able to brief him

adequately, the lawyer would obviously be in a better position to

place his case before the Hon'ble Apex Court effectively and to

the satisfaction of the petitioner. The family members of the

petitioners cannot be in a position to know all those facts, which

are in his knowledge and therefore cannot be a substitute for

him. Therefore, in my view, denial of parole on the ground that

free legal aid being available in the jail, Special Leave Petition

can be filed from the jail itself is not an appropriate ground and

rejection of parole on such a ground without anything more

cannot be sustained. No other ground has been given by the

respondent for denying parole to the petitioner.

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

impugned order dated 6.10.2009 is hereby set aside. The

petitioner is directed to be released on parole, after one week

from today, for a period of one month from the date of his

release, subject to the conditions that: (i) he shall furnish a

personal bond in the sum of Rs.10,000/- with one surety of like

amount to the satisfaction of the trial court (ii) he shall remain

only in Delhi and Ghaziabad during the period of parole and (iii)

he shall mark his presence in Police Station New Ashok Nagar,

Delhi, at 10:00 A.M., on every Sunday (iv) he shall submit copy

of the Special Leave Petition filed by him before the Hon'ble

Supreme Court before the SHO, Police Station Ashok Nagar

within four weeks from the date of his release and (v) he shall

comply with such other conditions as the respondent may

impose, within one week from today, in order to ensure that he

does not jump parole.

W.P.(CRL) 1749/2009 stands disposed of.

Dasti to both parties.

V.K. JAIN (JUDGE) JANUARY 11, 2010/'sn'/RS