NEERAJ BHATT Vs STATE NCT OF DELHI
- Neutral2023:DHC:000034
Ratio decidendi
The rule this decision rests on
Where a statute or prison rule establishes a discretionary bar to parole—providing that parole shall not be granted except in the discretion of the competent authority if special circumstances exist—the competent authority, in exercise of that discretion, must consider and articulate whether special circumstances are present; a bare rejection on grounds unrelated to the question of special circumstances, such as poor conduct or the availability of legal aid from jail, discharges neither the discretionary obligation nor the requirement to apply the statutory exception. A prisoner's right to pursue legal remedies before the final court of justice through counsel of his own choice constitutes a special circumstance sufficient to warrant exercise of the competent authority's discretion to grant parole notwithstanding a statutory bar, and such right cannot be withheld or rendered ineffectual merely on the basis of prior conduct in custody or the theoretical availability of state-funded legal aid from within prison.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
of India read with Section 482 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”) has been filed by petitioner for issuance of writ in the nature of Certiorari for quashing of the order dated 03.11.2022 passed by the respondent rejecting the application of the petitioner seeking parole and also for issuance of writ in the nature of
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Mandamus, directing the respondent to release the petitioner on parole for a period of four (04) weeks on the ground of filing Special Leave Petition (“SLP”) before the Hon’ble Supreme Court of India against the judgment dated 04.07.2022 passed by this Court in Criminal Appeal No. 391/2021 whereby the conviction and order on sentence was passed by learned Additional Sessions Judge, Saket Courts, New Delhi. 2.
In the present case, the petitioner was arrested in FIR bearing
No. 60/2014 registered at Police station Ambedkar Nagar, Delhi and vide judgment dated 05.12.2019, he was convicted under Sections 363/376(2) of Indian Penal Code, 1860 read with Section 6 of POCSO Act by learned ASJ-05, Special Court (POCSO), Saket Court, New Delhi and vide order on sentence dated 19.12.2019, the petitioner was sentenced to undergo rigorous imprisonment for ten years alongwith fine of Rs.5,000/- and in default, further rigorous imprisonment for 30 days under Section 376(2) of IPC, and to undergo rigorous imprisonment for seven years and fine of Rs.5,000/and in default, further rigorous imprisonment for 30 days. 3.
Learned Counsel for the petitioner states that the petitioner is
presently confined in Central Jail No. 14, Mandoli, New Delhi and has already undergone incarceration of about 8 years and 6 months (excluding remission) out of R.I. for ten (10) years and fine. It is stated by learned counsel for the petitioner that petitioner desires to file an SLP for which he has sought parole. It is further stated that an application dated 23.09.2022 was filed before the Home Department, Government of NCT of Delhi and the same was dismissed by
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respondent vide letter dated 03.11.2022, observing that there were no special circumstances that existed for grant of parole and the convict could file SLP from the jail itself where free legal aid is available to all prisoners. 4.
On the other hand, learned APP for the State submits that
considering his conduct in the jail as per Rules, parole cannot be granted to the petitioner. 5.
Attention of this Court has been drawn by learned APP for the
State to the fact that the present applicant is not entitled to parole in view of Rule 1210 sub rule (II) and Rule 1211 of Delhi Prison Rule, 2018. It is stated that as per the nominal roll, the present applicant has been awarded multiple punishments on 09.10.2021, 15.02.2022 and 07.06.2022. He therefore states that there is no illegality in the order passed by the competent authority i.e. Deputy Secretary, Home, NCT of Delhi and, therefore, the petition be rejected. 6.
It would be useful to reproduce Rule 1211 for ready reference,
as below:“ 1211. In the following cases, parole shall not be granted, except, if in the discretion of the competent authority special circumstances exist for grant of parole; I. to VI.
xxx
xxx
VII. If the prisoner is convicted under POCSO.” 7.
The bar in the said rule is not absolute since the competent
authority has the discretion, even in such cases, to grant parole, provided there exist special circumstances. Though the special circumstances were to be considered by the competent authority, the impugned order does not refer to the special circumstances and that Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:05.01.2023 18:47:41
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they were found insufficient for grant of parole, rather it only mentions that the SLP can be filed from the jail itself and that the conduct of the applicant was not satisfactory. 8.
In this Court’s opinion, the right of a citizen to avail a legal
remedy in the final court of country, which may often be the last ray of hope, cannot be denied on such ground. 9.
As per Rule 1211 of Delhi Prison Rule, 2018, it clearly
mentions that parole in the circumstances mentioned in the said Rule can be granted in the discretion of the competent authority if special circumstances exist for grant of parole. The ground taken by the petitioner for grant of parole in the present case is filing of SLP against the judgment of the High Court in Criminal Appeal No. 391/2020 which was decided on 04.07.2022 whereby the judgment of conviction dated 05.12.2019 and order on sentence dated 19.12.2019 were upheld. It is the right of a citizen to effectively pursue his legal remedy in the last court of justice in the county by filing SLP through a counsel of his own choice which is a valuable right. This cannot be withheld merely on the basis of his past conduct or on the ground that free legal aid is available and that SLP can be filed from the jail itself. Needless to say, availing his legal remedy in the Apex Court of the country is the right of the petitioner and this Court is not inclined to withdraw the same. 10.
While passing this order, this Court also remains conscious
of the fact that the present accused/applicant has remained in
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judicial custody since the day of arrest i.e. 11.05.2014 and is continuously in the jail for around eight years and six months, excluding remission. 11.
In this view of the matter, the present petition is allowed. The
petitioner is granted parole for a period of four weeks, subject to the following conditions:i. The petitioner shall furnish a personal bond in the sum of Rs.20,000/- with one surety of the like amount, who shall be a family member of the petitioner, to the satisfaction of the trial court. ii. The petitioner shall report to the SHO of the local area, once a week on every Sunday at 10:00 AM and shall not leave the National Capital Territory of Delhi during the period of parole. iii.
The petitioner shall furnish a telephone number to the Jail Superintendent on which he can he contacted, if required. After his release, he shall also inform his telephone number to the SHO of the police station concerned.
iv. Immediately upon the expiry of period of parole, the petitioner shall surrender before the Jail Superintendent. v. The petitioner shall furnish a copy of the SLP filed in the Supreme Court to the Superintendent Jail at the time of surrendering. A copy of the SLP shall also be placed on record in court. vi. The period of parole shall be counted from the day when the petitioner is released from jail.
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12.
In the above terms, the present writ petition alongwith pending
application stands disposed of. 13.
A copy of this order be sent by the Registry to the Jail
Superintendent.
SWARANA KANTA SHARMA, J JANUARY 05, 2023/ns
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