Karnataka High Court

Shahina vs State Of Karnataka on 1 December, 2023

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                            NC: 2023:KHC:43361
                                                          WP No. 15487 of 2023




                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 1ST DAY OF DECEMBER, 2023

                                             BEFORE

                           THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                          WRIT PETITION NO. 15487 OF 2023 (GM-POLICE)

                   BETWEEN:

                   1.     SHAHINA
                          W/O ASGAR @ASGAR PASHA
                          AGED ABOUT 41 YEARS
                          R/O 184/1, KSCB QUARTERS,
                          J.P.NAGAR 9TH STAGE, ALAHALLI
                          BENGALURU-560062
                                                                ...PETITIONER
                               (BY SRI. SIRAJUDDIN AHMED, ADVOCATE)
                   AND:

                   1.     STATE OF KARNATAKA
                          THROUGH PRINCIPAL SECRETARY
                          VIDHANA SOUDHA
                          BENGALURU-560001

Digitally signed by 2.    CHIEF SUPERINTENDENT
PADMAVATHI B K
Location: HIGH            CENTRAL PRISON
COURT OF                  BELLARI-583103
KARNATAKA
                   3.     THE LIFE CONVICTS RELEASE COMMITTEE
                          REPRESENTED BY ITS CHAIRMAN AND
                          PRINCIPAL SECRETARY
                          HOME DEPARTMENT
                          VIDHANA SOUDHA
                          BENGALURU-560001

                   4.     THE DIRECTOR GENERAL OF POLICE
                          PRISONS AND CORRECTIONAL SERVICES
                          SESHADRI ROAD
                          BENGALURU-560001
                                 -2-
                                              NC: 2023:KHC:43361
                                           WP No. 15487 of 2023




5.   CHIEF SUPERINTENDENT OF CENTRAL PRISON
     PARAPPANA AGRAHARA
     ELECTRONIC CITY POST
     BENGALURU-560100
                                          ...RESPONDENTS
              (BY SRI. C.S.PRADEEP, AAG A/W
                SRI MANJUNATH K., HCGP)

     THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
CONSTITUTION    OF  INDIA  PRAYING    TO-DIRECT THE
PETITIONERS HUSBAND MAY BE ENLARGED / RELEASED ON
GENERAL PAROLE IN ACCORDANCE WITH LAW TILL THE
COMMITTEE MEETS AND CONSIDERS HIS APPLICATION VIDE
ANNEXURE-B DTD: 9.7.2023 FOR THE PREMATURE RELEASE
OR PETITIONERS HUSBAND BY THE R2 AND 3 AND ETC.

       THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

The petitioner is before this Court seeking the following

prayers:-

"a) Direct the petitioner's husband may be enlarged/released on general parole in accordance with law till the committee meets and considers his application vide Annexure-B dated 09.07.2023 for the premature release of petitioner's husband by the respondent Nos.2 and 3.

b) pass any other order(s) which this court may deem fit and proper under the facts and circumstances of the case, in the interest of justice".

2. Heard Sri Sirajuddin Ahmed, learned counsel for the

petitioner and Sri C.S. Pradeep, the learned Additional Advocate

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General along with Sri Manjunath K., the learned High Court

Government Pleader for the respondents.

3. The petitioner is the husband of a convict, who is

undergoing life imprisonment in S.C.No.650/2005 for offence

punishable under Section 302 read with Section 34 of the IPC.

The petitioner is an accused in S.C.No.650/2005 for the

aforesaid offence. On the registration of the crime, the

petitioner was taken into custody and the Imprisonment

Certificate indicates that the petitioner is in prison for the last

18 years and 4 days as on 06.07.2023. The petitioner sought

release on parole or premature release by placing the

application of the petitioner before the Committee. The

Committee considered the application of the petitioner and

rejected it on the score that the trial against the petitioner was

pending in an another crime which he was embroid in.

4. Sri C.S. Pradeep, the learned Additional Advocate

General would submit that the petitioner has been acquitted in

the said crime and his case would be considered in the ensuing

Committee Meeting that is slated to be held in the month of

January, 2024. The submission is placed on record. The

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petitioner thus becomes entitled to grant of parole

notwithstanding the offence that is alleged against the husband

of the petitioner for grant of parole in the light of the fact that

for all 18 years and 4 days, his conduct has been good in the

prison

5. The learned Additional Advocate General would

submit that the petitioner had, on one occasion while he was an

under trial prisoner, had escaped from the prison for 1 month

and 20 days and it was a laborious task to get him back into the

gaol. Therefore, he would submit that stringent conditions be

imposed for grant of parole, if any at the hands of this Court.

6. In identical circumstance, the Co-ordinate Bench in

W.P.No.100831/2023, has held as follows:

"4. The jail authorities after securing report from the Superintendent of Police, Vijayapura have objected for release of the petitioner on parole on the ground that the petitioner may cause threat to the family of the victim if he is released on parole.

5. In the present case on hand, the petitioner cannot be classified as habitual criminal in terms of Rule 641(ii) of the Karnataka Prison and Correctional Services Manual, 2021. In terms of amendment to Manual, 2021, prisoner has to be denied the parole in the event that he is classified as habitual criminal who has more than three convictions or against whom cases are pending before

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the Court. Therefore, if prisoner classified as habitual criminal, is not eligible for parole. Admittedly, the petitioner is convicted in only one case and for the last seven years, he has not availed the benefit of parole.

6. A co-ordinate Bench of this Court in WP No.18978/2021, while examining the right of convict to be released on parole was of the view that merely because a person is convicted does not render him a destitute of all liberty and dignity. This Court was of the view that in such matters, humanistic approach needs to be adopted qua the convicts. A convict has to keep in contact with the civil society so that his societal roots do not dry up when he languishes in the jail.

7. The concerned authority has declined to grant parole only on the ground of apprehension that convict may cause threat to the family of the victim. Merely based on speculation and apprehension, the concerned authority has declined to grant parole. The Hon'ble Apex Court in Kesar Singh Guleria Vs. State of Himachal Pradesh1 has examined the consequences of release of convict on parole in the context of 'public order' as against 'state security'. In the judgment cited supra, the Hon'ble Apex Court was of the view that law and order encompasses diseases of less severity than those affecting 'public order'. This Court has to also bear in mind that if convict is released on parole, it would be quite natural to expect a victim to carry some sort of bitterness against the accused. That itself will not constitute a ground to deny parole. Therefore, the fact that the petitioner mother is suffering from illness and he being only son, proper course would be to release the petitioner on parole subject to appropriate conditions, so that the petitioner is monitored during his temporary release and that he may be required to report to the nearest police station at appropriate intervals. Therefore, it is for the authorities to ensure the maintenance of law and order and avoidance of breach of peace. But the petitioner cannot be denied parole where he is otherwise eligible and entitled.

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8. The fact that the petitioner is undergoing sentence for more than 7 years and he has not availed the benefit of parole, I am of the view that the petitioner is entitled to be released on parole for a period of ninety days and therefore, I deem it fit to direct respondent No.5-Chief Superintendent of Central Prison, Hindalaga, Belagavi to release the petitioner on parole."

7. In the light of the aforesaid observation that the

petitioner has not taken any parole for the last 18 years and 4

days as also the fact that he had escaped once, I deem it

appropriate to grant parole to the petitioner for a period of 60

days from 04.12.2023 to 04.02.2024 making it clear that, if the

petitioner would indulge in any offence or not returning to the

gaol on the expiry of the parole period, the application before

the Committee would get frustrated and his conduct while he is

outside on parole would also be a matter for consideration of

the case for premature release of the petitioner.

8. For the aforesaid reasons, the following:

ORDER

(i) Writ Petition is allowed in part.

(ii) Mandamus issues to the respondents to consider the request of petitioner for release on parole, bearing in mind the observations made in the course of the order and pass

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appropriate orders within a period of one week from the date of receipt of a copy of this order.