Delhi High Court

Siddharatha Vashishta vs State on 16 November, 2011

Author: V.K.Shali

        HIGH COURT OF DELHI AT NEW DELHI

+                      W.P.(Crl.) No.1486/2011


                           Date of Decision: 16.11.2011

SIDDHARATHA VASHISHTA            ... Petitioner
              Through: Mr.Ram        Jethmalani,
                       Sr.Adv. with Ms.Purnima
                       Sethi, Mr.Harsh Ghai,
                       Ms.Lata    Krishnamurti,
                       Mr.Pravan    Diesh    and
                       Mr.Karan Kalia, Advs.

                            Versus

STATE                                         ...Respondents
                            Through: Mr.Pawan         Sharma,
                                     Standing Counsel with
                                     Mr.Harsh       Prabhakar,
                                     Adv. for the State.
                                     SI    S.P.   Singh,   PS
                                     Mehrauli.

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

1.     Whether 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




W.P. (Crl.) No.1486/2011                           Page 1 of 12
 V.K. SHALI, J.

1. By way of this petition, filed under Article 226 of

the Constitution of India read with section 482 of the

Code of Criminal Procedure, 1973, the petitioner, a life

convict in Jessica Lal Murder case, has challenged the

order dated 21.10.2011, passed by the respondent,

rejecting the application of the petitioner for grant of

parole for a period of three months. The request for

parole, although recommended by the Jail authorities

was rejected by the respondent on the ground that the

petitioner had earlier violated the terms and conditions

of the parole.

2. Mr.Ram Jethmalani, learned senior counsel

appearing on behalf of the petitioner, has strenuously

contended that the rejection of the prayer of the

petitioner for grant of parole by the respondent was

totally arbitrary, irrational and without any merits. It was

also contended by him that the petitioner had been

consistently maintaining good conduct for which he had

been issued commendation certificates by the Jail

authorities. It was urged that the respondent itself has

framed the guidelines for the grant of parole, which have

been notified vide order dated 17.02.10, in terms of

which parole can be granted in case there is marriage of

a family member of the convict and with a view to

enhance the continuity with the family members and to

develop a positive attitude and interest in life. It was

further contended by Mr.Jethmalani that vide circular,

dated 26.07.11, it was also clarified by the respondent

that while dealing with the application for grant of parole

or furlough in terms of the guidelines of 2010, the

conduct of a convict for the last one year is only

relevant.

3. In this context, it was urged by the learned senior

counsel that the denial of parole to the petitioner on the

ground that on the previous occasion, when parole was

granted to the petitioner, he was found in a nightclub

was irrelevant because it travels beyond the period of

one year as specified by the guidelines of the

respondent. Apart from this, it was contended that the

petitioner was granted parole not only for performing the

religious rituals of his departed grand-mother, but also

to maintain social ties and to attend to his neglected

business, wherein it was specified that his ordinary place

of residence was at House No.226, Sec-9, Chandigarh.

It is contended that it did not prohibit the petitioner from

visiting Delhi or any restaurant or club which the

respondent is claiming to be a nightclub to transact the

business. It was also urged by Mr.Jethmalani that there

was no negative covenant in the terms and conditions of

grant of the earlier parole that prohibited the petitioner

from visiting the discotheques or nightclubs.

4. Mr.Jethmalani, in order to support his submissions

has stated that there are other parole orders, which

have been placed on record by the petitioner, wherein

specific prohibition has been imposed on the convict

from going in a particular area, which was not imposed

in the case of the petitioner and, therefore, he was not

prohibited from visiting a nightclub or a restaurant.

Accordingly, it is prayed that in order to maintain social

ties and to attend the wedding of his brother, the

petitioner may be enlarged on parole.

5. Mr.Jethmalani also drew the attention of the Court

to the counter affidavit of the respondent and contended

that the irrationality in the stand of the respondent is

further reflected by its averments in the status report

wherein it has prayed to the Court that the guidelines of

parole 2010 framed by it only may be ignored and the

parole be denied to the petitioner.

6. Mr.Pawan Sharma, learned standing counsel for the

State, has very fairly did not oppose the grant of parole

to the petitioner subject to his furnishing an undertaking

that he shall not visit any place other than Karnal and

Ambala, where the marriage ceremonies are likely to be

performed although he has defended the decision of

rejection of parole taken by the respondent.

7. I have considered the submissions made by the

learned senior counsel for the petitioner as well as

learned standing counsel appearing for the State and

gone through the record. The respondent itself has

notified guidelines on 17.02.2010 for grant of parole and

furlough. The objective of these guidelines has been

specifically laid down in the relevant Clauses, which are

reproduced as under:

"3.1 To enhance continuity with family members.

3.2 To maintain a minimum level of self-worth and confidence.

3.3 To develop a positive attitude and interest in life.

       3.4          To combat inner stress.



        3.5          To protect social ties."

8. The aforesaid five reasons for grant of parole fairly

lay down that although a person may have suffered

conviction but the entire purpose of sentencing a convict

to punishment, is not to make him redundant and

useless. On the contrary, the approach of the

punishment is reformative and in order to bring such

reformation in the convict it is essential that he must be

permitted to maintain positive attitude, continuity of

social ties and minimum level of self-worth so that he

does not go in depression. It is with this intention that

the guidelines have considered certain occasions as

imperative, where a person can be given the concession

of parole on certain occasions some of which are given

by way of illustrative examples as death of a family

member, marriage of a family member or serious illness

of a family member or such other circumstances, which

the Court considers to be fit. In the instant case, the

petitioner has sought parole on the ground that the

marriage of his real brother is to be performed on

22.11.11 at Ambala preceded by a family function on

21.11.11 at Karnal and succeeded by marriage

reception on 24.11.11 at Chandigarh. I do not agree

with the contention of Mr. Jethmalani, the learned senior

counsel, that the visit of the petitioner to the night club

could not be construed as violative of the terms and

conditions of the parole earlier. In the last parole order,

it was specifically observed that his ordinary place of

residence would be at Chandigarh although he was

permitted to attend his neglected business and for that

purpose he is alleged to have gone to his factory

situated at Pattran, Punjab. To contend that most of the

business is transacted at the nightclub and discotheques,

which was not prohibited, is a submission, which I feel is

unacceptable and unconvincing. There may not have

been a negative restraint on the petitioner in the

previous parole order, but a condition, not to visit Delhi

where he was found in a night club, which had almost

resulted in a brawl was implicit in the condition that his

ordinary place of residence was at Chandigarh. The

petitioner was not supposed to be in Delhi at all much

less in a nightclub on the previous occasions. Since

there was a great deal of reporting about this matter in

Press, the petitioner accordingly surrendered much

before the expiry of the parole. I also do not agree with

the contention of Mr.Jethmalani, learned senior counsel

that there ought to be necessarily a negative covenant in

the terms and conditions of the grant of parole that he

shall not visit a particular place. Therefore, I do not

accept this submission of the learned senior counsel

justifying the deviation on the part of the petitioner but

the learned senior counsel has rightly pointed out that

since the respondent itself has framed guidelines under

which the conduct of the petitioner while granting the

benefit of parole is to be seen only in the past one year,

therefore, this deviation or delinquency on the part of

the petitioner having taken place beyond a period of one

year from the consideration of the present application in

my considered opinion ought not to have weighed on the

respondent and the respondent ought to have

considered the application of the petitioner for parole

dehors the said deviation. To that extent the order of the

respondent is not sustainable. As the learned standing

counsel for the State has very fairly conceded that they

have no objection in case the parole is granted to the

petitioner on the condition that he shall not visit any

place other than Karnal and Ambala where the marriage

functions are slated to be held, I feel that the matter

does not deserve to be dealt with any further except that

the order dated 21.10.11 is set aside and the petitioner

is granted the benefit of parole for a period of five days,

i.e., from 21.11.11 to 25.11.11 (both days inclusive),

subject to the following conditions:

(i) that the petitioner shall furnish with the Registrar (Appellate) of this Court a personal bond in the sum of Rs.50,000/- with one surety of the like amount.

(ii) that he will maintain peace and good behaviour and comply with the terms and conditions of the grant of parole;

(iii) that he shall be released preferably in the forenoon of 21.11.11 and he shall furnish his complete addresses of Chandigarh, Karnal and Ambala where he is going to stay as well as his telephone number to the Jail Superintendent, Central Jail, Tihar. He shall not travel beyond the jurisdiction of these districts.