Karnataka High Court

Sri. M.C. Dileep Kumar @ Dileep vs State Of Karnataka By on 23 September, 2023

Bench: K S Bykshj

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                                                                 NC: 2023:KHC:34576
                                                             WP No. 21348 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 23RD DAY OF SEPTEMBER, 2023

                                                    BEFORE

                               THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

                             WRIT PETITION NO.21348 OF 2023 (GM-POLICE)

                      BETWEEN:

                      SRI M.C. DILEEP KUMAR @ DILEEP
                      S/O. CHANDRASHEKAR,
                      AGED ABOUT 32 YEARS,
                      R/AT NO.90, KRISHNAPPAJI HOUSE,
                      13TH CROSS, MANGALAWARPET,
                      OPP. BSNL TOWER, CHANNAPATNA TALUK,
                      RAMANAGARA - 562 159.
                      (NOW IN JUDICIAL CUSTODY,
                      CENTRAL PRISON, BANGALORE.                      ... PETITIONER

                      (BY SRI TEJAS N., ADVOCATE)

                      AND:

                      1.   STATE OF KARNATAKA BY,
                           REPRESENTED BY ITS SECRETARY,
                           DEPARTMENT OF HOME,
                           VIDHANA SOUDHA, BENGALURU - 560 001.
Digitally signed by
MAHALAKSHMI B M       2.   STATE OF KARNATAKA BY,
Location: HIGH             RAJARAJESHWARINAGAR POLICE,
COURT OF                   BENGALURU - 560 098.
KARNATAKA
                      3.   CHIEF SUPERINTENDER OF POLICE,
                           CENTRAL PRISON, JAIL ROAD,
                           PARAPANA AGRAHARA,
                           BENGALURU - 560 100.

                      4.   THE PRINCIPAL, M.H. COLLEGE OF LAW,
                           M.H. CAMPUS, B.M. ROAD,
                           VIVEKANANDA NAGAR ROAD,
                           BEHIND ROTARY HOSPITAL,
                           RAMANAGARA - 562 159.                    ... RESPONDENTS

                      (BY SRI RAJENDRA K.R., AGA)
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                                                 NC: 2023:KHC:34576
                                               WP No. 21348 of 2023




      THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE DIRECTION TO
RESPONDENT NO.3 TO CONSIDER THE REPRESENTATION OF THE
PETITIONER AND RELEASE THE DETENUE - M.C. DILEEP KUMAR @
DILEEP CTP NO.13790 ON PAROLE FOR A PERIOD OF 30 DAYS TO
ATTEND HIS EXAMINATION WHICH IS SCHEDULED FROM
25.09.2023 TO 12.10.2023 AS PER ANNEXURE-C; DIRECT THE
RESPONDENT NO.4 TO PERMIT THE PETITIONER TO ATTEND THE
EXAMINATION SCHEDULED BETWEEN 25.09.2023 TO 12.10.2023.

     THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

The petitioner in this writ petition is seeking for a

direction to respondent No.3 to consider the

representation of the petitioner and release the detenue

on parole for a period of 30 days to attend his

examination, which is scheduled from 25.09.2023 to

12.10.2023 and a writ of mandamus directing respondent

No.4 to permit the petitioner to attend the scheduled

examination between 25.09.2023 to 12.10.2023.

2. Heard Sri. Tejas .N, learned counsel for the

petitioner and Sri. Rajendra K.R., learned AGA for the

respondent.

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3. It is the case of the petitioner that, criminal

case was registered against the petitioner under Section

392 of the Indian Penal Code, wherein the petitioner was

convicted by the III Additional Chief Metropolitan

Magistrate, Bangalore City in C.C. No.36517/2010 dated

20.12.2013 and sentenced to undergo imprisonment for a

period of four years. Against the said order, the petitioner

preferred Criminal Appeal No.671/2013 before the LII

Additional City Civil and Sessions Judge, Bangalore City

(CCH-53), which came to be allowed in part and the

petitioner was sentenced to undergo rigorous

imprisonment for a period of three years. Aggrieved by the

order, the petitioner filed Crl. R.P. No.438/2014 before this

Court. This Court confirmed the order of the District

Court, against which SLP was preferred before the Apex

Court. The Apex Court, vide order dated 23.06.2023,

dismissed the SLP filed by the petitioner herein, confirming

the order of this Court in Crl. R.P. No.438/2014.

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4. The petitioner, who is in judicial custody has

sought for release on emergency parole.

5. Learned counsel for the petitioner would

contend that representation was made for emergency

parole before respondent No.3, however, respondent No.3

has orally intimated that the representation is not

maintainable in view of Rule 638(i)(b) of the Karnataka

Prisons and Correctional Services Manual, 2021

(hereinafter referred to as 'the Prison Manual' for short).

Learned counsel for the petitioner submits that the

representation was submitted in the last week of August,

2023 and having not considered the same by respondent

No.3, the petitioner is before this Court seeking

emergency parole in light of the circumstances that the

exams are scheduled between 25.09.2023 and

12.10.2023. In support of his contention, the affidavit of

one Chethan is been filed along with the exam hall ticket

seeking to release on emergency parole. Learned counsel

for the petitioner submits that respondent No.3 has

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mechanically refused the representation without

considering that the person seeking parole can be released

by suitable and stringent conditions by the prison

authorities themselves.

6. Learned counsel for the petitioner has relied

upon the following judgments of the Co-Ordinate Bench of

this Court :

i) Smt. Suma Vs. State of Karnataka and

others [W.P. No.18978/2021 dated 26.10.2021]

(Suma)

ii) Sri. Shivappa Bellad Vs. Superintendent of

Open Air Prison and others [W.P. No.8631/2023

dated 22.05.2023] (Shivappa Bellad)

iii) Rathnamma and another Vs. The State of

Karnataka and others [W.P.No.7270/2023 dated

31.03.2023] (Rathnamma)

iv) Yusuf Sulaiman Khan @ Yusuf Bacha Khan

Vs. State of Karnataka and another [W.P.

No.13764/2023 dated 07.07.2023] (Yusuf Sulaiman

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Khan) and contend that the judgments are aptly

applicable to the present facts and circumstances.

7. Learned AGA would oppose the petition on the

ground that the petitioner has not produced the

representation submitted to respondent No.3 and in the

absence of the same, the petitioner is not entitled for any

parole as contended in the petition. Learned AGA would

contend that the provisions for grant of parole under

clauses 635 and 636 of the Prison Manual would not enure

to the benefit of the detune for his release. Learned AGA

would contend that no extraordinary circumstances are

made for grant of parole and as per Sub-Clause 12 of 636

of the Prison Manual gives description to the head of the

institution-respondent No.3 herein to grant parole only on

any extraordinary circumstances.

8. This Court has carefully considered the rival

contentions urged by the learned counsel for the parties

and perused the writ petition papers.

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9. The authorities are vested with the power to

grant parole while considering the application has to keep

in mind the objective and purposes of clauses 635 and 636

of the Manual.

8. The Co-Ordinate Bench of this Court in

Shivappa Bellad's case has considered the grant of

parole and its importance. Placing reliance on the

judgment of the Co-Ordinate Bench of this Court in W.P.

No.24274/2022 in the case of Sri. Omkaramurthy Vs.

Assistant Superintendent of Police and at paragraph Nos.4

and 5 has held as under:

"4. Having heard the learned counsel for the parties and having perused the petition papers, this Court, being conscious of the shortness of human life and the irreplaceable position and bond between mother and children, is inclined to grant a restrictive & conditional indulgence in the matter inasmuch as petitioner's mother Smt. Gangavva, aged about 75 years, an inpatient in General hospital Kushtagi, is stated to be suffering from ailments natural to the old age. Valmiki in Ramayana says, "Janani Janma Bhoomischa Swargaadapi Gariyasi" meaning

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"...mother and motherland are superior even to heaven." When a mother is in contemplation of death, as argued at the Bar, it is a legitimate urge for the children to see her and for the mother to see her children. This court sees no reason, why a reasonable opportunity to see the mother, must be denied to the petitioner and thereby to deprive the mother sight of her child.

5. A Co-ordinate Bench of this Court, vide judgment in W.P. No.24274/2022, between SRI. OMKARMURTHY vs. ASST. SUPERINTENDENT OF POLICE disposed off on dated 12.12.2022 has sympathetically considered the case of the kind and granted release on parole and therefore, some wisdom can be drawn from the reasoning in the said judgment which favors the case of petitioner. What George A. Ellis in his book 'Inside Folsom Prison' said about the nature of convicts very pertinently has been reproduced below:

"Contrary to popular opinion, all convicts are not rock-hard individuals lacking sufficient emotional balance. They are people, with fears and aspirations like everyone else. Generally, they don't want to fight with or kill their neighbor any more than the man on the street. They want to live in peace and return to it their loved ones as soon as possible. They

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are not a different breed of human being or a distinct type of mentality. They are persons who have made mistakes. This point is made not to solicit pity but to bring attention to the fact that any individual could be caught in a similar web and find himself inside a pit such as Folsom Prison..."

In the above circumstances, this writ petition succeeds in part; the Respondent - Superintendent of Open Air Prison is directed to grant emergency parole of three weeks, i.e., from forenoon of 24.05.2023 till the afternoon of 14.06.2023 to the petitioner, subject to all usual restrictions and conditions in accordance with law."

9. Another Co-Ordinate Bench of this Court, in the

case of Rathnamma, has considered the judgment of the

Division Bench of the High Court of Bombay in the case of

Cecilia Fernandes Vs. Inspector General Panaji

disposed of on 19.01.2017 reported in LAWS

(BOMS)-2017-1-129 and at paragraph No.10 has held

as under:

"10. Reference being made to an order passed by the Co-ordinate Bench on parole in the

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circumstances becomes apposite. The Co-ordinate Bench has held as follows:

"2. Learned AGA on request having accepted notice for the respondents vehemently opposes the petition contending that parole & furlough are not a matter of right; petitioner's husband is convicted for the murder of three persons and therefore whatever arguable right he had for parole, also does not avail to him. So contending, he seeks dismissal of the writ petition.

3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant a restrictive & conditional indulgence in the matter as under and for the following reasons:

a) Petitioner in all fairness has disclosed all the material particulars of the cases in which her husband has been convicted & sentenced; presently he has been serving sentence in the gaol for purging the guilt since last more than two decades ie., since 02.03.1999, of course with some parole/furlough; he had violated some parole condition earlier, may be true; however, one cannot forget that every saint had a past and

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every sinner has a future; the fact that a person is convicted and put behind the bars, does not render him a destitute of all liberty & dignity; in matters like this humanistic approach needs to be adopted qua the convicts; a convict has to keep in contact with the civil society although sporadically, so that his societal roots, do not dry up when he languishes in the jail; otherwise, when he returns from the prison after completing the term of sentence, he may be a total stranger and life may prove hard to him; this is not a happy thing to happen in a Welfare State.

(b) The provisions of parole/furlough are structured on humanistic grounds for the reprieve of those lodged in gaols for long; the main purpose of releasing a serving convict on parole is to afford to him an opportunity to solve his personal & family problems and to enable him to maintain his links with the civil society; there may be cases of health grounds too; the marriage of convict's younger daughter Chi.S.Monish is scheduled to be performed on 7th & 8th day of November, 2021 at Bastipura, Kollegal; petitioner has produced the Marriage Invitation Card at Annexure-L; ordinarily every Hindu Marriage

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involves certain rituals such as 'Vivaah Homa' & 'Kanyadaan' that are done with the participation of the parents; even otherwise, when a young daughter is getting married, the presence of her father, is desirable, consistent with the humanitarian considerations which inhere in Article 21 of the Constitution of India.

(c) It was Oscar Wilde in a stanza of his poem "The Ballard of Reading Gaol" who lamented about the prison life as under:

"This too I know .... And wise it were If each could know the same ...

That every prison that men build Is built with bricks of shame, And bound with bars lest Christ should see How men their brothers maim".

"Compassion wherever possible and cruelty only where inevitable, is the art of correctional confinement", said the Apex Court in CHARLES SOBRAJ VS THE SUPTD., CENTRAL JAIL, TIHAR, 1978 AIR 1514; after all, the standard of civilization is measured by looking to how the State and Civil Society treat the

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criminals. The sublime feelings of the spouse & children permeate the prison walls and reach out to the convict, however strong & unkindly they are built; therefore, this court has to facilitate the presence & participation of the petitioner in the ensuing marriage ceremony; an otherwise stand of the court, runs the risk of being branded as 'inhuman' by the right thinking sections of the society, to say the least.

(d) The vehement contention of learned State Counsel that the petitioner's husband has some blameworthy track record and he may flee away from the clutches of law, do not much impress this court; it is not that, the convict is awarded a capital punishment and therefore he may take a chance to run away from the gallows; What George A. Ellis in his book "Inside Folsom Prison" said about the nature of convicts is quoted by the Apex Court in MARU RAM vs. UNION OF INDIA, (1981) 1 SCR 1196 very pertinently:

"Contrary to popular opinion, all convicts are not rock-hard individuals lacking sufficient emotional balance. They are

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people, with fears and aspirations like everyone else. Generally, they don't want to fight with or kill their neighbor any more than the man on the street. They want to live in peace and return to it their loved ones as soon as possible. They are not a different breed of human being or a distinct type of mentality.

  They     are    persons          who   have     made
  mistakes.       This point is made not to

solicit pity but to bring attention to the fact that any individual could be caught in a similar web and find himself inside a pit such as Folsom Prison".

Suitable & stringent conditions can be stipulated by the prison authorities themselves; that would assuage this apprehension.

In the above circumstances, this writ petition succeeds in part; the respondents are directed to consider the subject representation and release the convict on parole/furlough from the forenoon of 01.11.2021 till the afternoon of 15.11.2021; the respondents shall stipulate strict conditions as are usually stipulated to ensure the return of convict to

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the gaol and that he shall not commit any other offence.

Costs made easy."

The Co-ordinate Bench has considered the grant of parole and its importance. The learned counsel for the petitioner has also placed reliance upon the judgment of a Division Bench of the High Court of Rajasthan in the case of SANJAY ALIAS GAFUDIYA VS. STATE OF RAJASTHAN disposed on 16.04.2013, reported in LAWS(RAJ)-2013-4-

21. The Division Bench has held as follows: "(3) The petitioner has submitted that during his parole enlargement, his family has fixed up his marriage and the marriage is to be solemnized on 29.04.2013 at Banswara. The petitioner has submitted certain certificates from public representatives in confirmation of the fact that his marriage is scheduled on 29th instant.

(4) With reference to the above mentioned facts, the petitioner has prayed for being granted 30 days emergent parole, particularly for the purpose of his marriage.

(5) The learned Government Counsel has procured verification from the Superintendent,

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District Jail, Jalore and it is pointed out that as on 15.04.2013, the petitioner has served about 10 years 1 months and 4 days of actual imprisonment and has earned remissions of about 3 years 6 months and 7 days. His conduct is said to be satisfactory. The learned Government Counsel further units that earlier, the petition made this prayer for emergent parole on the ground of his marriage before the District Magistrate but on account of nonavailability of the concerned District Magistrate, final orders could not be passed on this prayer. However, the learned Government Advocate further points out on instructions that the police station concerned, as also the Social Welfare Department have sent their reports to the District Magistrate and as per those reports, the marriage of the petitioner is, in fact, scheduled for 29th instant.

(6) The petitioner submits that for the purpose of the present release on parole, he has furnished personal bond and one surety in the sum of Rs.25,000/-. The said bond and surety are obviously for the purpose of his surrendering on or before 17.04.2013.

(7) On the peculiar facts and in the given set of circumstances, we are of the considered

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view that when the conduct of the petitioner undergoing sentence is otherwise said to be satisfactory, and he is presently availing of parole; and his marriage is scheduled on 29.04 2013, the interest of justice shall be served if he is granted further indulgence in continuation of his parole release order dated 09.03.2013 by another period of about three weeks on the same terms and conditions as contained in the order dated 09.03.2013 and with the stipulation that the bail bond and surety as furnished by the petitioner shall now be read as having the requirement of his surrendering on or before 10.05.2013. Ordered accordingly.

(8) We make it clear that we have passed this order looking to the peculiar facts and circumstances of the case and in the interest of justice. However, the period of enlargement as shall be availed by the petitioner after 17.04.2013 until his surrendering to the custody, i.e., on or before 10.05.2013 shall be counted as the period of emergent parole and not the regular one.

(9) The petition stands partly allowed to the extent indicated above."

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The facts before the Division Bench were that the detenue therein had sought parole on account of his marriage being scheduled on a particular date and emergency parole was granted to the said detenue therein. Following the said judgment of the Division Bench, the Division Bench of the High Court of Bombay in the case of CECILIA FERNANDES Vs. INSPECTOR GENERAL PANAJI disposed on 19.01.2017 reported in LAWS(BOM)-2017-1-129, has held as follows:

"7. The issue of release of the prisoner on parole primarily hinges on the interpretation of Rule 324 of the Goa Prison Rules, 2006 and as amended in 2008 to take within its sweep any other sufficient cause other than the grounds on which such parole can be granted in favour of the prisoner. It needs reckoning that the contention of Shri R. Menezes, learned Advocate for the petitioners that the conduct of the petitioners was exemplary and that there were no grievances in that regard despite his release on furlough and parole on earlier occasions did not evoke any submission to the contrary by Shri M. Amonkar, learned Additional Public Prosecutor. Indisputably the prisoner was civilly married to one Gayatri Bansode i.e the petitioner no. 2 as per the undisputed Civil Registration Certificate dated

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28.11.2016. The petitioners had moved the respondents for the grant of parole for a period of one month for his marriage having completed 11 years and some months of his sentence as a convict imprisoned for life. It was also not in dispute that the marriage of the prisoner was scheduled on 27.12.2016 but for obvious reasons and that the respondents had vide its order dated 4.1.2017 rejected the application on the premise that there was a possibility of breach of peace in the event of his release on parole and that his marriage did not materialize.

8. Rule 324 of the the Goa Prisons Rules, 2006 reads thus:--

"When parole to be granted:--

Parole may be granted to a prisoner in the event of emergent situations like death or serous illness of father, mother, brother, sister, spouse and children and also marriage of brother, sister and children or any other sufficient cause."

9. The amendment thereto in 2008 and particularly Sub Rule (2) of the Goa Prisons Rules, 2006 provides that parole can be granted for any other sufficient cause and is

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not limited to the marriage of the brother, sister and children which were earlier the emergent situations contemplated in Rule 324 of the Goa Prisons Rules, 2006 apart from the death or serious illness.

10. Sanjay (supra), who had been awarded the life sentence by the Additional Sessions Judge (Fast Track) Banswara had moved the parole petition before the Rajasthan High Court after serving more than 10 years of the actual imprisonment. His marriage was fixed by his family and in that context he had submitted certain certificates in confirmation thereof and prayed for the grant of 30 days emergent parole particularly for the purpose of his marriage. The factum of his marriage was undisputed and confirmed from the public records and therefore on the basis of the conduct report which was found to be satisfactory and in the peculiar facts and given set of circumstances, the Division Bench of Rajasthan High Court granted him parole of three weeks on terms and conditions recorded therein.

11. Shri M. Amonkar, learned Additional Public Prosecutor on behalf of the respondents contended that Rajasthan Rules contemplated

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the grant of parole on the ground of personal marriage which was not contemplated in Rule 324 of the Goa Prisons Rules, 2006. Nonetheless even accepting such a contention, the fact remains that the expression "for any other sufficient cause" would take within its sweep the marriage of the prisoner to order his release on parole. Besides, the expression in Rule 324 is illustrative and not exhaustive. Moreover, an omnibus record in the impugned order that there was a possibility of breach of peace in case he was granted parole cannot stand the test of scrutiny when there were no assertions disputing the fact that he had been earlier enlarged on furlough or parole.

12. Besides, Shri R. Menezes, the learned Advocate for the petitioners submitted that the marriage of the convict prisoner was rescheduled on 27.1.2017 and accordingly he had to be given the benefit of parole commencing a week prior thereto.

13. We have no hesitation to accept the contention of Shri R. Menezes in the matter of grant of parole. The respondent no. 2 is accordingly directed to examine his request for parole commencing a week prior to 27.1.2017

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in consonance with the observations recorded as before."

10. In light of the above mentioned judgments of

the Co-Ordinate Bench of this Court and judgment of High

Court of Bombay, this Court feels it appropriate to allow

the petition for a limited period in the peculiar facts and

circumstances.

11. For the aforesaid reasons, this Court pass the

following:

ORDER

i. The writ petition is allowed.