Allowed

Gourishankar Chouhan @ Bhakud v. State of Chhattisgarh

Chhattisgarh HC3 Mar 2023WPCR/85/2022

Case brief

AI extract

What is this about?

Convict undergoing sentence applied for leave on parole; the District Magistrate rejected it accepting the Superintendent of Police's adverse recommendation. The High Court held the Rules of 1989 are a self-contained code, that police concurrence is not required and that no finding of detriment to public interest was recorded, and set aside the order.

What did the court decide?

Impugned order dated 23-7-2021 set aside; petitioner directed to be released on leave on parole subject to conditions including Rule 9 of the Rules of 1989, with the competent authority to pass the or

Gourishankar Chouhan @ Bhakud Vs State of… — Criminal Trial and Appeal | Chhattisgarh HC (2023)

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{W.P.(Cr.)No.85/2022}

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Writ Petition (Cr.) No.85 of 2022

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Gourishankar Chouhan @ Bhakud, S/o Shri Narayan Prasad Chouhan, Aged about 38 years, R/o Katbitla, Post Saragbundiya, Police Station Uraga, District Korba (C.G.)

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---- Petitioner

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Versus

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State of Chhattisgarh, Through the Secretary, Home (Jail) Department, Mantralaya, Mahanadi Bhawan, Raipur (C.G.)

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The Director General, Prisons and Correctional Services Chhattisgarh, Head Quarter Prisons and Correctional Services Chhattisgarh, Raipur (C.G.)

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The Collector-cum-District Magistrate, Korba (C.G.)

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The Superintendent of Police, Korba (C.G.)

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The Jail Superintendent, Central Jail, Bilaspur (C.G.)

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---- Respondents

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----------------------------------------------------------------------------------------------------For Petitioner: Mr. Rishi Rahul Soni, Advocate. For Respondents/State: -

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Mr. Avinash Singh, Panel Lawyer.

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Sachin Singh Rajput, JJ.

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Order On Board (03/03/2023)

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Sanjay K. Agrawal, J.

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The petitioner herein is a convict undergoing sentence for commission of offences under Sections 302, 201 & 177 of the IPC. He made an application for grant of leave for a period of 10 + 2 = 12 days in accordance with Rule 6 of the Chhattisgarh Prisoner’s Leave Rules, 1989 (for short, ‘the Rules of 1989’) before the District Magistrate, Korba which came to be rejected by the impugned

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order dated 23-7-2021 (Annexure P-1) by the learned District Magistrate which has been called in question by way of this writ petition preferred under Article 226 of the Constitution of India.

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Brief facts: -

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The principal ground on which the impugned order is challenged is that the petitioner is in jail since 17-12-2016 i.e. for more than six years, but he has not been extended any privilege of Rule 6 of the Rules of 1989 granting him leave, though he is entitled for leave as per Rule 6 and that too the District Magistrate did not record finding that grant of leave to him is not in public interest and the District Magistrate has only relied upon the recommendation of the Superintendent of Police which is not binding on him and he has to exercise his own discretion, and on the basis of apprehension expressed by the Superintendent of Police though there is sufficient safeguard in shape of the provisions in the Rules of 1989 itself which take care of the apprehension which has been expressed by the learned Superintendent of Police, the District Magistrate has rejected the application for grant of leave totally on untenable grounds ignoring the Rules of 1989 which sufficiently address the apprehension so expressed by the Superintendent of Police.

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Return has been filed on behalf of the State / respondents stating inter alia that the District Magistrate has conducted enquiry as per Rule 6 of the Rules of 1989 and also took the recommendation of the Superintendent of Police and thereafter, came to the conclusion that the petitioner is habitual offender and he could not furnish the security for maintaining peace and tranquility during his leave and

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as such, his application has rightly been rejected and therefore the writ petition deserves to be dismissed.

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Rejoinder has been filed on behalf of the petitioner stating inter alia that now, father of the petitioner is ready and willing to take the responsibility of the petitioner if the petitioner is released on parole and further, he is ready and willing to furnish security as desired as per the Rules and therefore the order impugned is liable to be set aside and the writ petition deserves to be allowed.

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Submissions: -

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Mr. Rishi Rahul Soni, learned counsel appearing for the petitioner, would submit that the learned District Magistrate has rejected the application of the petitioner for grant of leave on parole without recording any specific finding as required under Rule 6 of the Rules of 1989 that grant of leave to the petitioner is detriment to the public interest and further, the District Magistrate did not record finding that grant of leave to the petitioner is undesirable in public interest and only on the basis of the apprehension expressed by the Superintendent of Police, the recommendation of the Superintendent of Police has been accepted as it is without noticing the binding provisions contained in the Rules of 1989 which fully take care of the apprehension of breach of parole conditions and commission of offence by the petitioner if any and as such, the impugned order is liable to be set aside and the petitioner be directed to be released on parole.

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Mr. Avinash Singh, learned State counsel, would submit that the District Magistrate is absolutely justified in rejecting the petitioner’s application for grant of leave on parole, as the petitioner has failed to furnish surety as required and has specifically recorded a specific finding that the petitioner is habitual offender and the Superintendent of Police has also not recommended the petitioner to be released on parole, as such, the writ petition deserves to be dismissed.

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

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In order to consider the plea raised at the Bar, it would be appropriate to notice the object of granting parole to a convict.

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Object of Parole: -

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The object of granting parole is to make necessary efforts to rehabilitate a convict prisoner in the main stream of society based on "Karuna" (compassion) as well as on human consideration.

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10. His Lordship A.P. Sen, J, speaking for the Supreme Court, while highlighting the object of parole in the matter of Poonam Lata v. M.L. Wadhawan and others 1, observed in no uncertain terms that "release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty or lessening of restrictions to a convict prisoner".

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1 (1987) 3 SCC 347

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11. The concept of "Karuna" with reference to right of a prisoner who stand convicted for a criminal offence has been highlighted by His Lordship V.R. Krishna Iyer, J, speaking for the Supreme Court, in the matter of Inder Singh and another v. State (Delhi Administration) 2 as under: -

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"... parole will be allowed to them so that their family ties may be maintained and inner tensions may not further build up. ..."

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12. Not only this, His Lordship further emphasized the object of parole and quoted a passage from Lewis Moore with approval. The said passage reads as under: -

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"You cannot rehabilitate a man through brutality and disrespect. Regardless of the crime a man may commit, he still is a human being and has feelings. And the main reason most inmates in prison today disrespect their keepers, is because they themselves (the inmates) are disrespected and are not treated like human beings. Does this type of treatment bring about respect and rehabilitation? No! It only instills hostility and causes alienation toward the prison officials from the inmate or inmates involved.

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If you treat a man like an animal, then you must expect him to act like one. For every action, there is a reaction. This is only human nature. And in order for an inmate to act like a human being, you must treat him as such. Treating him like an animal will only get negative results from him. Lewis Moore (71 pg. 72)"

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13. Recently, in the matter of Asfaq v. State of Rajasthan and others 3, their Lordships of the Supreme Court while highlighting the object of leave of the convicted prisoner held that a prisoner should

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3 (2017) 15 SCC 55

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2 AIR 1978 SC 1091

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be allowed to maintain family and social ties, and pertinently observed as under: -

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“17. From the aforesaid discussion, it follows that amongst the various grounds on which parole can be granted, the most important ground, which stands out, is that a prisoner should be allowed to maintain family and social ties. For this purpose, he has to come out for some time so that he is able to maintain his family and social contact. This reason finds justification in one of the objectives behind sentence and punishment, namely, reformation of the convict. The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, albeit for ( sic such) periods. These gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the good of the society and, therefore, are in public interest.

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The provisions of parole and furlough, thus, provide for a humanistic approach towards those lodged in jails. Main purpose of such provisions is to afford to them an opportunity to solve their personal and family problems and to enable them to maintain their links with society. Even citizens of this country have a vested interest in preparing offenders for successful re-entry into society. Those who leave prison without strong networks of support, without employment prospects, without a fundamental knowledge of the communities to which they will return, and without resources, stand a significantly higher chance of failure. When offenders revert to criminal activity upon release, they frequently do so because they lack hope of merging into society as accepted citizens. Furloughs or parole can help prepare offenders for success.”

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14. The object of granting parole laid down in Asfaq (supra) has been followed by the Supreme Court in the matter of Mohammed Shamsuddin v. State of Rajasthan and others 4 and thereafter, in the matter of State of Gujarat and another v. Narayan @ Narayan Sai 5, their Lordships of the Supreme Court have held that the grant of furlough must be balanced against the public interest and can be refused to certain categories of prisoners.

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15. With the aforesaid note on the object of grant of parole, it would be appropriate to notice the provisions of parole in the Prisoners Act, 1900.

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Scheme of the Act and the Rules relating to parole: -

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16. The Prisoners Act, 1900 is an act to consolidate the law relating to prisoners confined by order of a Court which came into force with effect from 2^nd February, 1900. By the Prisoners (Madhya Pradesh Amendment) Act, 1985, Section 31-A was incorporated in the Prisoners Act, 1900 under Part VI-A which deals with Leave and Emergency Leave to Prisoners. Section 31-A provides grant of leave to prisoners; Section 31-B provides power to grant leave to prisoners as ground of emergency; Section 31-C provides surrender by the prisoner after leave period; Section 31-D provides penalty stating that any prisoner who does not surrender himself as required by sub-section (1) of Section 31-C shall be liable upon conviction to be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both; Section 31-E confers power to the State Government to make rules

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4 (2019) 14 SCC 333

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5 2022 SCC OnLine SC 949

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for carrying out the purposes of Part VI-A inserted by the Prisoners (Madhya Pradesh) Amendment Act, 1985 which came into force on 26^th May, 1985.

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17. Thereafter, in exercise of the powers conferred under Section 31E(2) of the Prisoners Act, 1900, the Madhya Pradesh (Chhattisgarh) Prisoner’s Leave Rules, 1989 have been made which clearly provide conditions of leave, eligibility for leave, duration of general leave, duration of emergency leave, application for grant of leave, sanctioning authority for first leave, sanctioning authority for subsequent leaves, conditions for release on leave, procedure for release on leave, arrest of a prisoner in event of breach of conditions, penalty for overstay, removal of doubt, etc.. Rule 4 of the Rules of 1989 provides for Conditions of Leave which states as under : -

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“ 4. Conditions of Leave.— The prisoners shall be granted leave under sub-section (1) of Section 31-A of the Act on the following conditions, namely:--

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(a) He fulfills the conditions laid down in Section 31-A of the Act;

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(b) He has not committed any offences in jail between the date of application for leave and receipt of the order of such leave;

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(d) He gives in writing to the Releasing Authority the place or places which he intends to visit during the period of his leave and undertake not to visit any other place during such period without obtaining prior permission of the Releasing Authority in that behalf; and

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(e) He should furnish security to the satisfaction of the Releasing Authority if such security is demanded by the Releasing Authority.”

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18. Similarly, Rule 9 of the Rules of 1989 provides for Conditions for

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release on leave which states as under: -

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“ 9. Conditions for release on leave .— After satisfaction regarding prisoner’s eligibility for leave, Competent Authority shall release such prisoner on leave on the following conditions: —

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(1) During the period of his leave, he shall not go to any place other than those places which have been mentioned in his leave application.

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(2) During his leave he shall neither commit any crime nor involve in any such act that may have its bearing on public interest.

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(3) After spending his leave he shall present himself at the Jail from where he was released, but in the event of accident, disease, natural calamity, such prisoner can surrender himself at any other nearest Police Station with proper ground.

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Note :— Provided that no prisoner shall claim leave as a right for leave granted under these rules.”

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19. Rule 10 of the Rules of 1989 provides, Procedure for release on

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leave. Rule 10(a) states as under: -

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“ 10. Procedure for release on leave .— (a) On receipt of the Warrant/Order for grant of leave from the District Magistrate or the Inspector General, the Superintendent shall fix in consultation with the prisoner, the date of his release which shall not be later than 10 days from the date of receipt of the Warrant/Order. In the case of a female prisoner the date of release shall be so fixed as to allow time for her transfer to the jail from which she is to be released. If a prisoner who has been granted leave is ill, the Superintendent may postpone the date of his/her release for such time as he consider to be necessary till the prisoner's recovery from his/her illness :

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Provided that in case of guarantors inability to present himself taking the prisoner of his/her custody within 10 days, Jail Superintendent shall be able to extend the duration for further period of upto 10 days to release the prisoner on the security of guarantor.”

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20. Rule 11 of the Rules of 1989 provides, Arrest of a prisoner in event

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of breach of conditions. Rule 11(1) states as under: -

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“ 11. Arrest of a prisoner in event of breach of conditions .— (1) If any prisoner does not present himself on the evening of fixed date of his return, he shall be treated as prisoner at large and an FIR shall be registered against him at the Police Station in whose jurisdiction concerning jail (where prisoner was expected to surrender) is situated, and concerned Station House Officer shall put up challan against escaped prisoner. Station House Officer shall initiate necessary actions as per provisions contained in Sections 82 and 83 of Criminal Procedure Code and information regarding such actions shall be sent to Jail Superintendent by him.”

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21. Rule 12 of the Rules of 1989 provides, Penalty for overstay which

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states as under: -

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“ 12. Penalty for overstay .—If the prisoner returns to the jail of his own accord after the date fixed for his return he shall be admitted to the jail and the prisoner’s return and the reason for the delay shall be reported immediately to the District Magistrate of the district in which the jail is situated, for his orders where the prisoner should be prosecuted. If it is not considered to prosecute, the Superintendent should hold an enquiry and may for good and sufficient reasons, award one of the following punishments :—

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(a) Formal Warning.

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(b) Forfeiture for a period not exceeding 3 months privileges of interview, receiving and sending letters.

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(d) Forfeiture of 5 days remission for each day’s overstayal on leave which shall not exceed total period of his sentence inclusive of unexpired period of sentence.”

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22. A careful perusal of the Rules of 1989 qua the grant of leave on parole would show that it is a complete code in itself providing to consider the application for grant of leave on parole, as Rule 4 of the Rules of 1989 provides that the prisoners shall be granted leave under sub-section (1) of Section 31-A of the Prisoners Act, 1900 subject to the conditions mentioned therein and leave / parole can be granted without detriment to public interest. Eligibility for Leave has been provided in Rule 4-A of the Rules of 1989. Ineligibility for leave has been provided in Rule 4-B. Duration of general leave has been provided in Rule 4-C. Rule 5 provides, Application for Grant of Leave. Rule 6 provides, Sanctioning Authority for first leave which categorically provides that the District Magistrate is required to hold enquiry on the application filed by the convict for grant of leave which can be granted on being satisfied and without detriment to public interest and the District Magistrate is also required to consult the District Superintendent of Police on the advisability of granting the leave to the convict and the Superintendent of Police while advising the District Magistrate can also obtain the opinion of the Gram Panchayat of the village, where the prisoner resided before conviction and send to the District Magistrate along with his report and on his report the District Magistrate is required to consider the issue of granting parole to the convict, but it is only the consultation of the District Superintendent of Police which the District Magistrate is required to consult,

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however, concurrence of the District Superintendent of Police is not required, as the Note appended to Rule 6 clearly provides recommendation and leave should be refused only in cases in which the District Magistrate is satisfied that release is fraught with danger to the public safety and grant of leave to the prisoner is undesirable in public interest. The Note appended to Rule 6 further provides that Security should be demanded only when it is really necessary, for example, when there is reasonable apprehension that the prisoner will break leave. As such, sufficient safeguard has been provided in the Rules of 1989 itself in shape of security being demanded by the District Magistrate while granting parole so that the prisoner may not break leave. Similarly, Conditions for grant of leave incorporated in Rule 9 of the Rules of 1989 also take care of the apprehension, if any, in the mind of the District Magistrate as he has to grant leave subject to conditions No.(1), (2) & (3) which clearly provide that (1) during leave period, the prisoner shall not go to any place other than those places which have been mentioned in his leave application; (2) during his leave, he shall neither commit any crime nor involve in any such act that may have its bearing on public interest; and (3) he will surrender himself immediately after completing leave. Procedure for release on leave has been prescribed in Rule 10 of the Rules of 1989 and similarly, Rule 11 provides for Arrest of a prisoner in event of breach of conditions. Rule 11(1) provides for treating the prisoner as prisoner at large if he does not present himself on the evening of fixed date of his return and for registration of FIR against him. Sub-rule (3) of Rule

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11 provides for registration of case against the guarantor for abetment in the event of escape of prisoner during the leave period and sub-rule (4) provides that in the event of escape of prisoner during leave, Jail Superintendent will submit application for initiating actions regarding forfeiture of his security as well as attachment of guarantor’s assets. Rule 12 provides, Penalty for overstay in shape of formal warning; forfeiture for a period of not exceeding 3 months privileges of interview, receiving and sending letters; degradation from higher to lower grade; and forfeiture of 5 days remission for each day's overstayal on leave. As such, sufficient safeguard has been provided in the Rules of 1989 itself while granting leave by the District Magistrate under Rule 6.

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Discussion and Analysis: -

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23. Reverting to the facts of the case in light of the object of parole and in light of the scheme of the Rules governing parole, it is quite vivid that in the instant case, the petitioner made application for grant of leave on parole to the Superintendent of Jail, Central Jail, Raipur which was forwarded to the District Magistrate, Korba on 19-5-2021 with recommendation that he is entitled for grant of leave on parole and in his application, the petitioner has also named two sureties including his father as surety and the application was sought to be enquired by the District Magistrate and in course of enquiry, he consulted the Superintendent of Police, who gave his recommendation to the District Magistrate on 17-6-2021, which states as under: -

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Fax No 07759-224031 Email [email protected]

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24. Similarly, it appears from the record that the opinion of the petitioner’s father was taken vide Annexure R-4 in which he expressed his inability to take the responsibility of his son i.e. the petitioner herein and the Gram Panchayat has also informed to the Superintendent of Police that considering the nature of offence, the petitioner being habitual criminal has been convicted, therefore, he

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should not be released on parole. The District Magistrate by its impugned order dated 23-7-2021 (Annexure P-1) rejected the application by holding as under: -

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25. A focused glance of the order of the District Magistrate would show that the petitioner’s application has been rejected stating that he is habitual criminal and his father has refused to stand as surety for him and he is also the person having criminal antecedents and furthermore, the Superintendent of Police has also not recommended for grant of parole to the petitioner and accordingly, the District Magistrate has rejected the application agreeing with the recommendations of the Superintendent of Police. It is appropriate to notice here that though the District Magistrate has recorded finding that the petitioner is habitual offender and having criminal antecedents, but no document has been brought on record to demonstrate that he is having criminal antecedents or he has been convicted in any other offence for which he is undergoing sentence, as such, these two reasons of the District Magistrate are not based on record. Furthermore, from amongst the petitioner’s two sureties mentioned in the application, the petitioner’s father has now given his consent which has also been reiterated in the rejoinder filed by the petitioner that his father is ready to take the responsibility of his son i.e. the petitioner herein. Moreover, the learned District Magistrate agreeing with the recommendation of the Superintendent of Police has not exercised his discretion and no finding has been recorded that grant of leave to the petitioner is undesirable in public interest which is sine qua non for rejecting the application as required under Rule 6(a) & (b) of the Rules of 1989. Furthermore, if any apprehension is there in the report of the Superintendent of Police with regard to the petitioner’s conduct,

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{W.P.(Cr.)No.85/2022}

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same is very well taken care of by way of security to be furnished in terms of the note appended to Rule 6 and further, Rule 9 is clear that parole has to be granted subject to the conditions incorporated in sub-rules (1) to (3) of Rule 9 that during the leave period, he shall not go to any place other than those places mentioned in his leave application, he shall neither commit any crime nor involve in any such act that may have its bearing on public interest and after spending leave he shall present himself at the jail from where he was released. In the event of breach of conditions, Rule 11 comes into force and FIR is required to be registered and forfeiture of his security as well as attachment of guarantor’s assets is also provided in sub-rule (4). Overstay of the prisoner has been taken care of by Rule 12 and penalty has been provided for the same. Moreover, recommendation of the Superintendent of Police is to be considered and to be taken by the District Magistrate as consultation, in other words, it should not be taken as no concurrence, as only consultation of the Superintendent of Police is required, concurrence is not required and mandated in the Rules of 1989.

¶148

26. Consequently, the order impugned passed by the learned District Magistrate dated 23-7-2021 is hereby set-aside. The petitioner is directed to be released on leave on parole subject to conditions including the conditions mentioned in Rule 9 of the Rules of 1989. Such order will be passed by the competent authority within 10 days from the date of receipt of a copy of this order.

¶149

Page 18 of 18

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{W.P.(Cr.)No.85/2022}

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27. The writ petition is allowed. No order as to cost(s).

¶152

Sd/Sd/(Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge

¶153

Soma

Gourishankar Chouhan @ Bhakud v. State of Chhattisgarh

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Gourishankar Chouhan @ Bhakud v. State of Chhattisgarh

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