Mr Vijay Muthkoli vs State Of Karnataka
2023 Latest Caselaw 7029 Kant

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                                                           NC: 2023:KHC-D:11845
                                                             WP No. 105750 of 2023




                                  IN THE HIGH COURT OF KARNATAKA,
                                          DHARWAD BENCH

                             DATED THIS THE 6TH DAY OF OCTOBER, 2023

                                                 BEFORE

                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                           WRIT PETITION NO. 105750 OF 2023 (GM-POLICE)

                      BETWEEN:
                      MR. VIJAY MUTHKOLI S/O KUBER MUTHKOLI,
                      AGED ABOUT 39 YEARS, OCC. PRISON,
                      R/O. CTP NO.3574, CENTRAL JAIL,
                      HINDALAGA, BELAGAVI,
                      AS PETITIONER IS IN CUSTODY,
                      R/BY HIS WIFE SMT. SUJATHA MUTHKOLI,
                      W/O. VIJAY MUTHKOLI, AGED ABOUT 32 YEARS,
                      R/AT 2ND CROSS, JANNAT NAGAR,
                      DHARWAD-580004.
                                                                       ... PETITIONER
                      (BY SRI. GIRISH M. PATIL, ADVOCATE)

                      AND:
                      1.   STATE OF KARNATAKA,
                           R/BY ITS PRINCIPAL SECRETARY,
                           DEPARTMENT OF LAW,
VISHAL
         Digitally
         signed by
         VISHAL
         NINGAPPA
                           JUSTICE & HUMAN RIGHTS,
NINGAPPA PATTIHAL
PATTIHAL Date:
         2023.10.07
                           BENGALURU-560001.
         13:11:01
         +0530


                      2.   STATE OF KARNATAKA,
                           R/BY ITS UNDER SECRETARY,
                           DEPARTMENT OF HOME,
                           PRISON & CINEMA, BENGALURU-560001.
                      3.   THE DIRECTOR GENERAL POLICE &
                           INSPECTOR GENERAL OF PRISONS,
                           SHESHADRI ROAD, BENGALURU-560001.
                      4.   THE CHIEF SUPERINTENDENT OF CENTRAL PRISONS,
                           CENTRAL JAIL, HINDALAGA,
                           BELAGAVI-591108.
                                                                   ... RESPONDENTS
                      (BY SRI. V.S. KALASURMATH, HCGP)
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                                      NC: 2023:KHC-D:11845
                                          WP No. 105750 of 2023




      THIS WRIT PETITION IS FILED UNDER ARTICELS 226 AND 227
OF THE CONSTITION OF INDIA, PRAYING TO ISSUE WRIT OF
MANDAMUS OR ANY OTHER APPROPRIATE WRIT OR ORDER AS PER
ANNEXURE-D    THE    ORDER     DATED   14/07/2023N   BEARING
NO.1527/2023 AS ISSUED BY THE RESPONDENT NO.4 AND DIRECT
TO RESPONDENT NO.4 TO CONSIDER THE REQUEST MADE BY THE
PETITIONER TO EXTEND REMISSION AND RELEASE HIM FROM
CENTRAL PRISON, HINDALAGA, BELAGAVI ON PAROLE FOR 90 DAYS
IN ACCORDANCE WITH LAW.

      THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

1. The petitioner is before this Court seeking his release

from parole for 90 days in accordance with law, for it having

been turned down by the concerned Jail Superintendent on

receipt of report from the jurisdictional Police.

2. Heard the learned counsel Shri Girish M. Patil

appearing for the petitioner and the learned HCGP Shri V.S.

Kalasurmath appearing for the respondents.

3. The petitioner gets convicted in S.C. No.170/2016

for offences punishable under Sections 376, 201 & 302 read with

Section 34 of the IPC and Sections 4 & 6 of the POCSO Act,

2012. The petitioner as on date spent seven (7) years

imprisonment and on the score that his wife is suffering from

certain illness makes a representation to the Jail Authorities

NC: 2023:KHC-D:11845 WP No. 105750 of 2023

seeking his release on parole. A medical certificate of the wife

suffering was also appended to the parole application submitted

by the petitioner. Pursuant to the application so submitted, a

report is called for from the jurisidictional Police by the Jail

Authorities. The report ostensibly is against the petitioner and is

therefore for this Court seeking his release on parole.

4. Learned counsel for the petitioner submits that it is

his first application seeking general parole and the reason for

seeking such parole is illness of his wife and that he had to stay

with his wife for few days. Learned counsel would seek to place

reliance upon the judgment rendered by the Co-ordinate Bench

of this Court in the case of Amagond Manohar Maled Vs. the

State of Karnataka and others in W.P. No.100831/2023,

disposed off on 14th March 2023 on identical set of facts,

wherein identical objections now taken by the learned HCGP

have all been negatived and an order directing parole is passed

in a case where the offences were punishable under Sections

302 and 506 of the IPC.

5. The afore-narrated facts are not in dispute. The

petitioner makes an application for general parole after seven

NC: 2023:KHC-D:11845 WP No. 105750 of 2023

(7) years of his imprisonment. The custody certificate depicts

that the petitioner has been in prison from 14.03.2016 till date.

Therefore, it is more than seven (7) years that the petitioner has

been in prison and for the first time, he is seeking his release on

general parole. A reference being made to the judgment

rendered by the Co-ordinate Bench of this Court in the

circumstance becomes apposite, as the Co-ordinate Bench has

considered the very provision of the offences under Sections 302

& 506 of the IPC.

6. The Co-ordinate Bench in W.P. No.100831/2023 has

held as follows:

"The captioned writ petition is filed by the convict feeling aggrieved by letter dated 13.01.2023 issued by Respondent No.4-Superintendent of Police, Vijayapura, in rejecting the memorandum for grant of parole for three months.

2. The facts leading to the present case are as under:

The petitioner is convicted for the offences punishable under Sections 302 and 506 read with Section 34 of IPC in SC No.38/2016. He is undergoing sentence and is in custody for more than 7 years. A memorandum was submitted to respondent No.5 on 9.11.2022 to release him on parole on the ground that mother of the petitioner who is aged about 51 years is suffering from illness and therefore, his presence is absolutely inevitable. The petitioner also claims that he has not availed the benefit of parole for the last 7 years while he was in judicial custody.

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3. The respondents/State has filed objections objecting for release of the petitioner on parole.

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 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

1985 Crl.L.J. 1202

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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.

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.

9. For the aforestated reasons, the writ petition stands disposed off directing respondent No.5 to release the petitioner on parole for a period of ninety days commencing from the date of receipt of certified copy of this order. However, it is made clear that respondent No.5 shall stipulate strict conditions to ensure the return of the petitioner to the jail and that he shall not commit any other offence.

Pending application does not survive for consideration and accordingly, it stands disposed off."

7. In the light of the reasons rendered by the Co-

ordinate Bench of this Court for grant of parole in the identical

circumstances of the offences against the State, I deem it

appropriate to permit the petitioner on parole for two months.

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8. Therefore, the following:

ORDER

(i) Writ Petition is allowed in part.

(ii) Mandamus issues to the respondents to consider the request of the petitioner for release on parole, bearing in mind the observations made in the course of the order and pass appropriate order within a period of one week from the date of receipt of a copy of this order.

(iii) Respondent No.4 to consider the release of the petitioner on general parole for a period of 60 days from 16.10.2023 to 15.12.2023.

(iv) While doing so, the authorities are at liberty to impose such conditions which would deem appropriate for the petitioner to return to the goal.

Sd/-

JUDGE Vnp* / ct:bck