Partly allowed

Mr Shashikumar v. State of Karnataka

Karnataka HC9 Nov 2023WP/22480/2023

Case brief

AI extract

What is this about?

Petitioner, a convict facing offences under IPC 302 and POTA, sought emergency parole to visit his ailing mother. The High Court quashed the rejection order, distinguishing prior precedents, and directed the prison authority to grant emergency parole for 15 days instead of general parole.

What did the court decide?

The impugned endorsement denying parole was quashed. The prison authority was directed to grant emergency parole for 15 days from 16.11.2023 to 30.11.2023.

Mr Shashikumar Vs State of Karnataka — Bail and Remand | Karnataka HC (2023)

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NC: 2023:KHC:40078 WP No. 22480 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 22480 OF 2023 (GM-POLICE)

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BETWEEN:

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MR. SHASHIKUMAR, AGED 24 YEARS, S/O NARAYANSWAMY, CONVICT PRISONER NO. 13442, PRESENTLY AT CENTRAL PRISON, BENGALURU.

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PERMANENT RESIDENT OF UGANAVADI VILLAGE, KASABA HOBLI, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT, BENGALURU - 562 110.

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…PETITIONER

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(BY SRI. LAKSHMIKANTH G, ADVOCATE)

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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AND:

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STATE OF KARNATAKA, BY ITS ADDL. CHIEF SECRETARY, HOME DEPARTMENT, VIKASA OSUDHA, AMBEDKAR VEEDHI, BANGALORE - 560 001.

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THE DIRECTOR GENERAL AND INSPECTOR GENERAL OF PRISONS, NO.4, SESHADRI ROAD,

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NC: 2023:KHC:40078 WP No. 22480 of 2023

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BANGALORE - 560 009.

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THE SUPERINTENDENT, CENTRAL PRISON, PARAPPANA ARGAHARA, ELECTRONIC CITY, BANGALORE - 560 100.

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…RESPONDENTS

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(BY SRI. MANJUNATH K, HCGP)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INIDA PRAYING TO QUASH THE IMPUGNED ENDORSEMENT DATED 04.09.2023 BCP/J3/637/2023-24 VIDE ANNEXURE-A AND CONSEQUENTLY DIRECT THE R3 TO RELEASE THE PETITIONER ON EMERGENCY PAROLE FOR A PERIOD OF 15 DAYS.

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

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ORDER

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The petitioner is before this Court seeking the following prayers:

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"a) Appropriate writ, order or direction for quashing the impugned Endorsement dated 04/09/2023 BCP/J3/637/2023-24 vide ANNEXURE-"A" and consequently direct the Respondent No.3 to release the Petitioner on Parole for a period of 15 days;

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b) Issue other directions and orders to the respondents within the facts and circumstances of this case in the interests of justice and equity."

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3 - NC: 2023:KHC:40078 WP No. 22480 of 2023

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The petitioner is the convict in special case No.220/2016, long prior to that, the petitioner had taken into custody on 28.02.2023 for an offence punishable under Section 302 of the Indian Penal Code, 1860 and Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

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The petitioner submits a representation before the prison authorities for his release on grant of parole for a period of 15 days to see his ailing mother, who had undergone surgery for her left tibia and to see his seven year old daughter. It is turned down on the ground that the offences on which the petitioner is convicted are grave and there is no provision in law to permit parole of a person, who is convicted of the aforesaid offences and the bar operating under Section 641 of the Karnataka Prison Rules, 1974 is coming in the way of permitting the petitioner on parole.

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The reasons so rendered by the concerned authorities run counter to law and plethora of judgments rendered by this Court granting parole in the teeth of the very same offences against the convicts. The latest is the one that

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NC: 2023:KHC:40078 WP No. 22480 of 2023

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is in W.P.No.105750/2023 disposed on 06.10.2023, wherein this Court has held as follows:

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"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 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 jurisdictional Police by the Jail Authorities. The report ostensibly is against the petitioner and is therefore for this Court seeking his release on parole.

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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.

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5. The afore-narrated facts are not in dispute. The petitioner makes an application for general parole after seven (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

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NC: 2023:KHC:40078 WP No. 22480 of 2023

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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.

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6. The Co-ordinate Bench in W.P. No.100831/2023 has held as follows:

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

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

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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.

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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.

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NC: 2023:KHC:40078 WP No. 22480 of 2023

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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.

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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.

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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

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7 - NC: 2023:KHC:40078 WP No. 22480 of 2023

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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.

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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.

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

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7. In the light of the reasons rendered by the Coordinate Bench of this Court for grant of parole in the identical circumstances of the offences against the State,

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NC: 2023:KHC:40078 WP No. 22480 of 2023

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I deem it appropriate to permit the petitioner on parole for two months.

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8. Therefore, the following:

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ORDER

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(i) Writ Petition is allowed in part.

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(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.

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(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.

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

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In the light of the aforesaid order, which in itself follows several judgments rendered by the Co-ordinate Benches, the petitioner becomes entitled to a grant of parole initially for a period of 15 days, reserving liberty to seek extension on looking at the conduct of the petitioner during the time when he is out on parole.

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For the aforesaid reasons, the following:

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NC: 2023:KHC:40078 WP No. 22480 of 2023

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ORDER

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(i) Writ Petition is allowed in part.

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(ii) The impugned endorsement bearing No.BCP/J3/637/2023-24 dated 04.09.2023 issued by respondent No.3 stands quashed.

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(iii) 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 orders within a period of one week from the date of receipt of a copy of this order.

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(iv) Respondent No.3 to consider the release of the petitioner on general parole for a period of 15 days from 16.11.2023 to 30.11.2023.

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

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JY List No.: 1 Sl No.: 20 CT: BHK

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Sd/JUDGE

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10 - NC: 2023:KHC:40078 WP No. 22480 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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[MR SHASHIKUMAR VS. STATE OF KARNATAKA AND OTHERS]

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MNPJ

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31.01.2024

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(VIDEO CONFERENCING / PHYSICAL HEARING)

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ORDER ON 'BEING SPOKEN TO'

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The petition was heard and disposed on 09.11.2023. The observations in the operative portion - Clause (iv) is indicative of the fact that the petitioner was granted general parole, but the convict was in fact granted emergency parole and not a general parole.

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If it is general parole, it would cause prejudice to the convict in seeking another parole, as two general paroles are not permitted in quick succession.

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Therefore, the words 'general parole' shall be replaced with 'emergency parole' in Clause (iv).

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This order shall be read as part and parcel of the order dated 09.11.2023.

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Sd/JUDGE

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SJK List No.: 2 Sl No.: 1

Mr Shashikumar v. State of Karnataka

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Mr Shashikumar v. State of Karnataka

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