Bhagwan Dass vs State Of Nct Of Delhi
2010 Latest Caselaw 4462 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(CRL) 842/2010

                                                  Decided on 22.09.2010
IN THE MATTER OF :

BHAGWAN DASS                                               ..... Petitioner
                          Through: Mr. Rajesh Mahajan, Advocate

                    versus

STATE OF NCT OF DELHI                                  ..... Respondent
                    Through: Mr. Sanjeev Bhandari, ASC for the State
                    with ASI Shripal Singh, PS Rajender Nagar.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may           Yes
        be allowed to see the Judgment?

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

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

HIMA KOHLI, J. (Oral)

1. The present writ petition is filed by the petitioner praying inter

alia for releasing him on parole for a period of three months to enable him to

search a suitable match for his marriageable daughter, transfer his son from

the private school to a government school in the higher classes, and to

re-establish social ties with his family and the society.

2. A status report is handed over by the learned ASC for the State

and taken on record. Enclosed with the report is the rejection order dated

24.06.2010 passed by the Govt. of NCT of Delhi, on an application filed by

the wife of the petitioner for parole. The request for parole was rejected on

two grounds. Firstly, it was stated that the ground given for parole by the

petitioner was not covered under the Parole/Furlough Guidelines, 2010.

Secondly, it was stated that the petitioner had recently surrendered in jail in

January 2010, and therefore, it was premature to grant parole to him. In

the status report, it is averred that a report was called for from the

concerned police authorities and as per the intimation received, the address

given by the petitioner is genuine, the petitioner's family is residing at the

given address for the past four years, his daughter is 22 years of age and

unmarried. The victim is stated to be residing at Inderpuri. Learned ASC for

the State submits that the permanent address of the petitioner is at District

Doasa, Rajasthan. However, in view of the address of the petitioner given in

the memo of parties, which is situated at Gurgaon, Haryana, a report in

respect of the petitioner was sought from the Commissioner of Police,

Gurgaon and is enclosed with the status report. The same does not mention

anything which is adverse to the petitioner.

3. The main reason for rejection of the request for grant of parole

to the petitioner was the fact that he had surrendered in jail in January 2010

and the grounds taken by him for parole were not found covered under the

Parole/Furlough Guidelines, 2010. In response, counsel for the petitioner

relies on the nominal roll of the petitioner to state that he has already

undergone sentence, including the undertrial period, for over two years and

as far as his surrendering in jail in January 2010 is concerned, the said

surrender was not pursuant to grant of any parole to the petitioner, but on

account of dismissal of his appeal by a Single Bench of this Court.

4. This Court has perused the record and also considered the

submissions of the respective parties.

5. It has been observed by the Supreme Court in the case of

Poonam Lata vs. M.L. Wadhawan, reported as (1987) 3 SCC 347, that

"Release on parole is a wing of reformative process and is expected to

provide opportunity to the prisoner to transform himself into a useful

citizen."

6. Grant of parole is an executive function and ordinarily, it is for

the Government and not for the Court to consider such a request and take a

decision thereon. However, the orders passed by the Government can

certainly be scrutinized to examine, if they are based on extraneous and/or

irrelevant consideration. As observed in the case of Shakuntala Devi Vs.

State reported as ILR (1996) I Delhi 709, "If the Court finds that any

Governmental action in rejecting the grant of parole to a prisoner has the

effect of suffocating the Article 14 or Article 21 of the Constitution, then the

court must act, will act to restore the rule of law and respect the residuary

fundamental rights of an aggrieved prisoner." It has also been held by this

Court in Shakuntala Devi (supra) that:

"(6) It has to be borne in mind that the exercise of all administrative power vested in public authority must be informed by both relevance and reason, relevance in relation to the object which it seeks to serve and reason in regard to the manner in which it attempts to do so. Therefore, in construing the question of grant of parole to a prisoner, the Government in the scheme of the prison administration must take a constructive and purpose oriented approach, and exercise its beneficent jurisdiction wisely. In such matters, the representation made by the prisoner must be construed liberally and not technically so as to frustrate or defeat the therapeutic treatment, hospital setting and correctional goals."(emphasis added)

7. In Inder Singh Vs. State reported as AIR 1978 SC 1091, the

Supreme Court had devised another humanising strategy, viz, a guarded

parole release every year at least for a month, punctuating the total prison

term, for maintaining his family ties. A prisoner cannot maintain his family

ties by living in a small world of his own cribbed, cabined and confined within

the four walls of the prison. In the case of Inder Singh (supra), the Supreme

Court directed that:

"12. .......If the behavior of these two prisoners shows responsibility and trustworthiness, liberal though cautious, parole will be allowed to them so that their family ties may be maintained and inner tensions may not further buildup. After every period of one year, they should be enlarged on parole for two months......."

8. Having regard to the fact of the present case, it is an undisputed

position that the petitioner has a daughter aged 22 years, who is of

marriageable age; it has been confirmed that the petitioner is residing at the

address given in the memo of parties, as per the nominal roll, his conduct in

jail is stated to be satisfactory; there is no other pending case against him

except for the present one. The petitioner has already undergone sentence

for approximately 2 years and 3 months in the present case. The

justification for parole given by the petitioner, of searching a suitable match

for his daughter is reasonable. The submission of the learned ASC for the

State that the said ground is not covered under the guidelines, is answered

by the counsel for the petitioner, by handing over a copy of the order dated

20.08.2010, passed by the Joint Secretary (Home), Govt. of NCT of Delhi, in

the case of a convict, Dharam Pal in FIR No.451/1995, under Sections

302/34 IPC wherein, the ground for searching a suitable match for the

daughter of the said convict and to re-establish social ties with the family

was considered sufficient for granting him parole for a period of one month.

9. In view of the aforesaid facts and circumstances, the petitioner

is granted parole for a period of one month, subject to the following

conditions:-

(i) The petitioner shall furnish a personal bond in the sum of Rs.30,000/-

with one surety of the like amount to the satisfaction of the trial court.

(ii) The petitioner shall mark his presence before the SHO of Police

Station: Gurgaon at 10:00 AM on every Sunday and during the period

of parole, he shall remain in the National Capital Region of Delhi.

(iii) The petitioner shall keep away from the area around the residence of

the victim and her family members.

(iv) Immediately upon the expiry of period of parole, the petitioner shall

surrender himself before the Jail Superintendent.

(v) The period of parole shall be counted from the day after the date when

the petitioner is released from jail.

10. The petition is disposed of.

DASTI.

                                                                (HIMA KOHLI)
SEPTEMBER 22, 2010                                                 JUDGE
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