IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 453 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ ANIRUDDHSINH MAHIPATSINH JADEJA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Criminal Application No. 453 of 2001 MR TUSHAR MEHTA for Petitioner No. 1 MR AD OZA PUBLIC PROSECUTOR for Respondent No. 1 and Respondent No. 2-3 with Mr.HL JANI APP -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 14/08/2001 ORAL JUDGEMENT Heard Mr.Tushar Mehta, learned advocate appearing on behalf of the petitioner and Mr.A.D.Oza, learned Public Prosecutor with Mr.H.L.Jani, learned APP on behalf of the respondents. RULE. Mr.A.D.Oza, learned PP waives service of rule on behalf of the respondents. #. Before passing the order in the present matter, it is necessary to note the relevant observations made by the Apex Court in case of SUNIL BATRA V. DELHI ADMINISTRATION reported in AIR 1980 Supreme Court 1579, the relevant observations are quoted as under :- [D] Constitution of India, Article 19, 32, 226 - Prison excesses - Rights of Prisoner and Duties of the Court. Where the rights of a prisoner either under the Constitution or under other law, are violated the writ power of the court can and should run to his rescue. There is a warrant for this vigil. The Court process casts the convict into the prison system and the deprivation of his freedom is not a blind penitentiary affliction but a belighted institutionalisation geared to a social good. The Court has a continuing responsibility to ensure that constitutional purpose of the deprivation is not defeated by the prison administrative. AIR 1978 1675, Reiterated. [Para 30] Whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods `right, just and fair' AIR 1978 SC 597, Ref [Para 30] A prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through `writ' aid. The Indian human has a constant companion - the Court armed with the Constitution. The weapon is `babeas', the power is Part III and the projectile is Batra [AIR 1978 SC 1675 ]. It is therefore, the court's concern, implicit in the power to deprive the sentence of his personal liberty, to ensure that no more and no less than is warranted by the sentence happens. If the prisoner breaks down because of mental torture, psychic pressure or physical infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess. On the contrary, if an influential convict is able to buy advantages and liberties to avoid or water down the deprivation implied in the sentence the Prison Establishment will be called to order for such adulteration or dilution of court sentences by executive palliation, if unwarranted by law." `Prisons are built with stones of law' and so it behoves the court to insist that, in the eye of law, prisoners are persons, not animals, and punish the deviant 'guardians' of the prison system where they go berserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials 'dressed ill a little, brief authority', when Part III is invoked by a convict. For when a prisoner is traumatized, the Constitution suffers a shock. And when the Court takes cognizance of such violence and violation, it does, like the. Hound of Heaven, 'But with unhurrying chase, And unperturbed pace, Deliberate speed, and Majestic instancy' follow the official offender and frown down the outlaw adventure. #. The brief facts giving rise to the present petition are as under :- The petitioner - Aniruddhsinh M. Jadeja is charged with an offence interalia under Section 302 of IPC and the provisions of TADA Act. The petitioner was convicted and sentenced to suffer RI for life by the Hon'ble Apex Court under Section 302 of IPC and the provisions of the TADA Act by the order dated 10th July, 1997. Initially, according to the petitioner, he was apprehending that he will be killed in an encounter and therefore was fearing surrendering before the police authorities. Thereafter, the petitioner surrendered to the custody of the learned Sessions Judge, Rajkot by filing a pursish to that effect and the Sessions Judge was pleased to take the petitioner in the judicial custody and was subsequently handed over to the police custody. The Special Inspector General of Police, Rajkot range also assured in writing about the safety of the petitioner. The petitioner applied for his parole leave to the Inspector General of Police [Prinsons] on 19th May, 2000. However, no reply was received by the petitioner. The petitioner had to apply for the same as the petitioner's real brother Ramdevsinh Mahipatsinh Jadeja passed away in an accident on 18th May, 2001. Therefore, according to the petitioner, presence of the petitioner was necessary at the time of death ceremony and other rituals of his brother. However, as no reply was filed, the petitioner was constrained to file Special Criminal Application No.362/ 2001 before this Court but as the petition was filed at a stage when the petitioner's application was still pending, the petitioner withdrew the said petition but this Court has specifically granted liberty to file a petition after the State Government decides the application preferred by the petitioner. It is case of the petitioner that though substantial period has passed, the respondents have neglected to decide the said application and each day which the petitioner passes in the jail is unbearable without meeting the family members as the petitioner would like to be with his family members when such unfortunate incident has taken place. The petitioner is passing through a mental trauma as his real elder brother has passed away. It is also case of the petitioner that the wife of the brother of the petitioner is also suffering from ill health which also requires the presence of the petitioner and solace and therefore an application dated 9th May, 2001 was also made on behalf of the petitioner prior to the application dated 19th May, 2001. In light of this fact, according to the petitioner, on account of the negligence in deciding the application of the petitioner, the petitioner is constrained to move this petition before this Court invoking extra ordinary constitutional jurisdiction of this Court even while the application / representation of the petitioner is pending with the respondents which in fact has remained undecided for no fault on the part of the petitioner. On the record of this petition, the petitioner has also produced death certificate of elder brother of the petitioner and also the certificate of cause of death of the elder brother given by the medical officer of General Hospital, Rajkot. The respondents have filed affidavit in reply through one Ms.R.B.Bara, Deputy Secretary, Home Department, Sachivalaya Gandhinagar dated 4th July, 2001 along with Annexure-1 which is letter dated 20th October, 2000 written by the Police Commissioner, Rajkot addressed to the Additional Chief Secretary, Home Department. A newspaper cutting is also placed on record along with Annexure-2 which is the order passed by the State Government on 25th October, 2000 under Section 268 [1] of the CrPC, which is also produced on record. A letter dated 20th May, 2001 received from the Superintendent of Police, Rajkot Rural addressed to the Additional Chief Secretary of Home Department is also placed on record so also the letter of the Police Sub Inspector, Taluka Police Station Gondal dated 20th May, 2001 addressed to the DSP, Rajkot Rural is also placed on record along with the statement of one Balvirsinh Dilipsinh Gohel dated 19th May, 2001 who happens to be a brother in law of the petitioner is also placed on record. The jail report is also placed on record and copy of the earlier order dated 28th May, 2001 passed by this Court [ Coram : R.R.Tripathi, J.] in Special Criminal Application No.362 / 2001 is also placed on record. The copy of the order dated 26th June, 2001 rejecting the parole application of the petitioner is also placed on record along with newspaper cutting. Again jail report dated 27th June, 2001 is also placed on record by the respondents. #. In the present petition, this Court has passed order on 22nd June, 2001 with a direction to the respondent No.1 - State Government to consider and decide the application submitted by the petitioner before 19th May, 2001 in accordance with law on or before 27th June, 2001 and place copy of the said order that may be passed on the said application on the record of this petition on the returnable date. Pursuant to the order passed by this Court, the State Government has placed on record the order dated 26th June, 2001, wherein the application of the parole submitted by the brother of the petitioner has been rejected, is placed on record, wherein it is mentioned that the State Government has rejected the parole application in the public interest by order dated 29th May, 2001. The petitioner subsequently has placed on record the draft amendment which was granted by this Court and accordingly the petition has been amended by the petitioner. In light of this fact, the petitioner now challenges the order of rejection of the parole application submitted by the brother of the petitioner dated 29th May, 2001 which has been communicated to the petitioner through the Court on 26th June, 2001. Therefore, in the present petition, this Court is now required to examine the legality and validity of the order of rejecting parole application submitted by the brother of the petitioner on 29th May, 2001 through communication dated 26th June, 2001. #. I have heard learned advocates Mr.Tushar Mehta for the petitioner and Mr.A.D.Oza, learned Public Prosecutor with Mr.H.L.Jani, learned APP on behalf of the respondents. Mr.Tushar Mehta has submitted that the order under Section 268 [1] has been passed by the State Government on 25th October, 2000 which is challenged by the petitioner in Special Criminal Application No.503 / 2001. Mr.Mehta has further submitted that the conditions incorporated under Section 268 [2] has not been satisfied and all the conditions are required to be satisfied prior to passing of the order under Section 268 [1] of the CrPC. Mr.Mehta has also submitted that condition [b] under Section 268 [2] of CrPC is missing and therefore, under the guise of the order passed by the State Government under Section 268 [1], parole application has been rejected, is illegal and contrary to the settled law. Mr.Mehta has also submitted that parole application has been rejected wherein, the ground made out for rejection of such application is public interest and accordingly, said application has been rejected. What was the public interest has not been specifically mentioned by the State Government and therefore, the order is also bad in law. He also submitted that the relevant provisions of Section 268 [1] will not apply to the convict unless the petitioner is in custody in respect of criminal proceedings pending against the petitioner. Mr.Mehta has also pointed out that in all the pending criminal cases, wherein the petitioner has been enlarged on bail and therefore, there was no need to pass such order under Section 268 [1] of CrPC. Mr.Mehta has also pointed out that newspaper cutting has been relied on and letter or proposal dated 20th October, 2000 received from the Police Commissioner, Rajkot and a letter dated 24th October, 2000 written by the DSP, Rajkot Rural are taken into account while passing the order under Section 268 [1] but according to Mr.Mehta, considering these two letters, there was no compelling circumstances which justify the order under Section 268 [1] of the CrPC. He also submitted that mobile chapter, when the petitioner was produced before the CJM at Rajkot has been highlighted by the State Government for passing the orders under Section 268 [1] but no private complaint has been filed by any person alleging that any such threat has been given by the petitioner on mobile phone. Mr.Mehta has also submitted that said demise of the elder brother of the petitioner, requires immediate presence of the petitioner with his family members and some family matters are required to be discussed with the petitioner and therefore, parole application has been submitted which ultimately came to be rejected without application of mind and the order which has been passed by the State Government on 29th May, 2001 which has not been communicated to the petitioner till communication dated 26th June, 2001 for the first time produced by the respondents - State Government before the Court and on no such previous occasion, any such communication has been given to the petitioner for rejecting parole application submitted by the brother of the petitioner. Mr.Mehta has also relied upon relevant provisions of The Prison [Bombay Furlough and Parole ] Rules, 1959 and he pointed out that as per Rule 18 [2], the petitioner is entitled to parole in case of death of his nearest relative, like father, mother, brother, sister, spouse or child of the petitioner. The cause behind such application is genuine and real and same has not been disputed by the respondents - State Government and therefore, learned advocate Mr.Mehta has submitted that in light of undisputed fact and considering the veracity of the genuine cause, the application for parole ought to have been granted but rejecting the application is clear arbitrariness and non application of mind on the part of the respondent authorities. Mr.Mehta has also submitted that though time has been elapsed but fact remains that the elder brother of the petitioner has died on 18th May, 2001 and in no time, in other words, immediately on the next date on 19th May, 2001 the brother of the petitioner has submitted application to release the petitioner on parole which remained pending before the State Government upto 29th May, 2001 and no such decision has been communicated to the petitioner immediately and since the same is communicated on 26th June, 2001, that order is under challenge before this Court. Therefore, time consumed in the proceedings for arriving at decision by the State Government can be considered as delay not on the part of the petitioner but it is a failure on the part of the respondents and as such there is no fault on the part of the petitioner for preferring parole application on account of sad demise of the elder brother of the petitioner. Mr.Mehta has also pointed out that after tendering of the parole application by the brother of the petitioner, many political leaders representing the nearby locality adjoining districts in Saurashtra requested the State Government with their recommendations to grant parole in favour of the petitioner but despite this the State Government has not considered said request and recommendation is made by the eminent political leaders and ultimately rejected the parole application submitted by the brother of the petitioner. Mr.Mehta has also pointed out that the family of the petitioner is still passing through mental agony and trauma on account of sad demise of the brother of the petitioner and on such unfortunate occasion of sad demise in the family, presence of the petitioner is badly needed by the family members to share feelings of the family members on untimely sad demise of elder brother of the petitioner. It is also submitted that whatever time has been consumed in taking decision by the State Government and even the time consumed in deciding the matter before this Court, may not adversely affect the legal right of the petitioner to have parole for genuine cause on account of death of his elder brother of the petitioner. Therefore, he submitted that the order of rejecting the parole application is required to be quashed and set aside and considering all the facts and circumstances of the case, the petitioner may be granted parole for some days on any conditions as may be deemed fit by this Court. It is also submitted that the petitioner is prepared and willing to accept any condition as may be imposed by this Court for granting parole. #. Mr.A.D.Oza, learned Public Prosecutor appearing on behalf of the respondents - State Government has first raised contention that the real time for the occasion is now over and by now sufficient time has passed and therefore there is no need for grant of parole in favour of the petitioner. He also pointed out that two letters from the concerned Police Authorities dated 20th October, 2000 and 24th October, 2000 are received by the concerned authorities, wherein reasonable apprehension has been pointed out to the effect that in case of grant of parole in favour of the petitioner and once the petitioner is taken out of the custody of the concerned jail authority, then the convict may run away. It is also apprehended that after conviction by the Apex Court, the petitioner was absconding for nearly three years and ultimately, pursuant to the order passed by the Apex Court, the petitioner has surrendered before the District Judge, Rajkot and therefore, Mr.Oza, learned PP has pointed out that looking to the nature of offence committed by the petitioner and looking to history of absconding period of three years even after conviction, the petitioner did not surrender before the concerned police authority so also the recent incident of administering threat on mobile phone when he was produced before the CJM, Rajkot and thus, all these aspects are required to be taken into consideration because on grant of parole in favour of the petitioner, there are all possibility and likelihood of disturbance of public order and public safety and security and hence, the present petition seeking parole cannot be granted by this Court and same should be rejected accordingly. It is also pointed out that the petitioner is very influential and high handed person and therefore, it is very much difficult to have control over the petitioner if he granted parole by the State Government. He also pointed out that there is reasonable apprehension that in case if the petitioner is released on parole, even the life of the petitioner would be endanger and therefore considering the safety of the petitioner's life also, for which the father of the petitioner before the District Judge, Rajkot had also requested in writing, may also be taken into consideration, otherwise, if some untoward incident takes place, which can adversely affect the life of the petitioner. In short, on analysis of the vehement submission at length by Mr.Oza, learned PP, the prayer of granting parole application deserves to be rejected. Mr.Oza, learned PP in support of his submissions has also relied upon affidavit filed by one Ms.R.B.Bara, Deputy Secretary, Home Department, Sachivalaya, Gandhinagar, wherein also emphasis is made on para-3 of the reply to the effect that history of the petitioner are that the petitioner is convicted for the offences punishable under Section 302 read with section 114 of IPC and under Section 3[2] of the TADA and under Section 25 [1][c] of the Arms Act in Sessions Case No.23/89. After the trial the petitioner is sentenced to suffer life imprisonment against which he had preferred SLP before the Hon'ble Apex Court confirmed the conviction on 10th July, 1997. The petitioner has surrendered before the District Judge, Rajkot on 28th April, 2000 that too after long period of about two years and since then the petitioner is in District Jail and thereafter he has been transferred to Central Jail, Sabarmati at Ahmedabad. In the reply, it is further pointed out that a report was received from the Commissioner of Police, Rajkot City vide his fax message dated 20th October, 2000 that the Commissioner of Police has received complaints from the people on phone that they are threatened by the petitioner and this report has been annexed to this reply as Annexure-1. It is also pointed out in the reply that in view of the reply and proposal dated 24th October, 2000 received from the Superintendent, Central Prison, Ahmedabad, the Government has issued order dated 25th October, 2000 to place the petitioner under Section 268 [1] of the CrPC and that order is annexed as Annexure-II to the affidavit in reply. It is also pointed out in the reply that application of the petitioner dated 19th May, 2001 for granting parole to attend funeral ceremony of the elder brother of the petitioner, was forwarded to the Jail Authority and the Head of the Department submitted a proposal to the concerned authority with regard to parole application dated 19th May, 2001 for appropriate decision to revoke temporarily the order of Section 268 [1] of CrPC. Pursuant to the said proposal, the Home Department of the State of Gujarat called for the opinion and police report of the Commissioner of Police, Rajkot City and District Superintendent of Police, Rajkot Rural vide fax message dated 19th May, 2001. Therefore, according to the deponent, considering the past criminal history of the petitioner, the Commissioner of Police Rajkot City reported and opined to release the petitioner with strict conditions at his costs. However, the DSP, Rajkot [Rural] has reported by fax message dated 20th May, 2001 that the petitioner should not be released on parole in view of the past criminal history and record of the petitioner and said letter has been placed on record as ANNEXURE-III along with reply. The proposal was again submitted to the State Government on 21-5-2001 along with the police report and past criminal history of the petitioner and after careful consideration the proposal in consultation with the high level officers of the police and jail department, the Government decided on 29th May, 2001 not to revoke order passed under Section 268 [1] of the CrPC and release the petitioner on occasion of the death of his elder brother. It is also pointed out in the reply by the deponent to the effect that some leaders of political parties and social organisations have also represented to the Government for granting parole to the petitioner and therefore, before coming to the conclusion on the parole application, the Government has taken into consideration all the representations made by various political parties, persons and social organisations at the highest level and ultimately on 15th June, 2001 decided and upheld the earlier decision taken by the State Government. Therefore, rejection of the parole application of the petitioner was conveyed to the petitioner through jail vide Fax message dated 26th June, 2001 and thus, the delay caused in communicating the decision is attempted to justify in a manner that the representations made by the various organisations and political parties and persons were considered in the interest of justice by the authority before taking final decision and in such process, time is consumed on the part of the State Government. It is also admitted by the deponent that the brother of the petitioner had died in an unfortunate and tragic incident and looking to the past criminal history as referred to earlier in the reply and considering the fact that the petitioner was absconding for long period of two years, the Government has taken negative decision. #. In light of reply of the respondent as discussed above, Mr.A.D.Oza, learned PP has submitted that this is the real cause and reason as to why the parole application has been rejected by the State Government and accordingly tried to