Birbal Uraon, S/o. Chitru Uraon, Aged About 45 Years, Prisoner No. 30/49, R/o. Village Koyalari, Post Dumardih, Police Station Lundra, District Surguja (C.G.).

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Through : Sukhal, S/o. Birju, Aged About 35 Years, R/o. Village Ladua, Police Station Rajpur, District- Balrampur Ramanujganj (C.G.).

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---- Petitioner

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Versus

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State Of Chhattisgarh, Through the Secretary, Home Department, Mantralaya, Mahanadi Bhawan, New Raipur, District Raipur (C.G.).

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Collector/ District Magistrate Surguja Ambikapur, District : Surguja (C.G.)

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Superintendent Of Police Surguja, District : Surguja (C.G.)

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Jail Superintendent, Central Jail Ambikapur, District : Surguja (C.G.)

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---- Respondents

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---------------------------------------------------------------------------------------------For Petitioner : Mr. Nishi Kant Sinha, Advocate.

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For Respondents/State : Mr. Ashish Tiwari, Govt. Advocate with Mr. Wasim Miyan, Panel Lawyer.

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Hon'ble Shri Sanjay K. Agrawal and Hon’ble Shri Radhakishan Agrawal, JJ.

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Order On Board (17/03/2023)

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Sanjay K. Agrawal, J.

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This writ petition is directed against the impugned order dated 08.03.2021 (Annexure P-1) passed by the District Magistrate, Sarguja, Ambikapur, by which the learned District Magistrate has rejected the petitioner / convict’s application for grant of parole on the ground that the village Sarpanch, proposed surety as well as Station House Officer & Superintendent of Police have opined

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against the petitioner and they have not recommended for release of the petitioner on parole. The District Magistrate also accepted the recommendation of all three office bearers and the application for release on parole has been rejected.

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Reply has been filed supporting the impugned order.

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Mr. Nishi Kant Sinha, learned counsel appearing for the petitioner, would submit that the recommendation of the Superintendent of Police is not binding on the District Magistrate by virtue of note appended to Rule 6 of the Chhattisgarh Prisoner’s Leave Rules, 1989 (for short, ‘the Rules of 1989’) and as such, the impugned order is unsustainable and bad in law and therefore, it deserves to be set aside and the petitioner be released on parole.

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Mr. Avinash Singh, learned State counsel, would support the impugned order and submit that the petitioner’s application for grant of parole has rightly been rejected.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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In order to consider the plea, it would be appropriate to notice Rule 6 of the Rules of 1989 which provides for grant of leave to the convict.

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“ 6. Sanctioning Authority for first leave.— (a) If the District Magistrate, after making such enquiry as he may consider necessary, is satisfied that the request for grant of leave can be granted without detriment to public interest, he shall issue to the Superintendent a duly signed and sealed warrant in Form 'A' to the prisoner. The District Magistrate shall enter in the warrant the number of days that will be required for the

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journeys by the shortest practicable route to and from the place at which during his leave the prisoner proposes to reside or if he proposes to visit more than one place, the furtherest place from the Jail which he proposed to visit.

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Note.— The District Magistrate is responsible for the proper carrying out of these instructions. He may of course, consult the District Superintendent of Police on the advisability of granting the leave. The Superintendent of Police should also obtain the opinion of the Gram Panchayat of the village, where the prisoner resided before conviction and send to the District Magistrate alongwith his report. But the responsibility for the action is that of the District Magistrate. He should use his discretion and should refuse to grant leave only in cases in which he is satisfied that release is fraught with danger to the public safety. Security should be demanded only when it is really necessary, for example, when there is reasonable apprehension that the prisoner will break leave. When security is required, the District Magistrate of the place where the surety resides should be asked by the releasing District Magistrate to accept the surety and not call the surety to his own headquarters. If the prisoner intends to visit another district, where his near relatives reside, the concerning District Magistrate shall make necessary enquiries form the District Magistrate of that District before sanctioning the leave.

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(b) If the District Magistrate considers that the grant of leave to the prisoner is undesirable in the public interest, he shall intimate his opinion to the Superintendent, who shall inform the prisoner that his request has been rejected.”

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After hearing learned counsel appearing for the parties and after going through the record and considering the order of learned District Magistrate, we are of the considered opinion that the order of the District Magistrate is not in accordance with law, as he has simply accepted the recommendations of the office bearers i.e. Village Sarpanch, Koilari, Station House Officer, Police Station- Lundra, Superintendent of Police, Sarguja and

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also Sub Divisional Magistrate, Ambikapur, but he has not exercised his discretion to hold that the release of the petitioner is detriment to the public interest.

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In that view of the matter, the impugned order dated 08.03.2021 (Annexure P-1) passed by the District Magistrate, Sarguja, Ambikapur, is set aside and the District Magistrate is directed to consider the application of the petitioner for parole afresh subject to the conditions laid down in Rule 9 of the Rules, 1989 and pass order in accordance with law within 30 days from the date of receipt of a copy of this order.

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The petition is allowed to the extent indicated herein-above. No order as to cost(s).

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Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Aks.

Birbal Uraon v. State of Chhattisgarh

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Birbal Uraon v. State of Chhattisgarh

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