Jagjit Kaur vs State of Haryana

P.K. Jain, J.

In this petition filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') read with Articles 226 and 227 of the Constitution of India, Smt. Jagjit Kaur has thrown a challenge to the purported exercise of the executive/statutory powers by respondents Nos. 1 to 3 in an unusual and unprecedented manner while releasing respondent No. 4 on parole under the provisions of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (hereinafter referred to as ''the Act'') in utter defiance of the judicial indictment.

The facts necessary for the disposal of this petition are that Dheeraj Pahwa, respondent No. 4 herein, was convicted by the Sessions Judge, Ambala, by judgment dated 9.2.1995 for committing the murder of Tejinder Pal Singh, the son of the petitioner herein, and sentenced to undergo life imprisonment. The convict was lodged in Central Jail, Ambala. He was released on emergency parole for a period of one week with effect from 1.3.1995 to 9.3.1995 to attend to his ailing mother, which period was extended by two weeks by order dated 7.3.1995 and further for a period of two weeks by order dated 21.3.1995. This period was again extended upto 4.5.1995 by order dated 5.4.1995 by the Additional Director General of Prisons, Haryana, to enable the convict of appear in B.A. Part II examination.

From the record, it appears that the convict was shifted to District Jail, Kurukshetra. He was granted emergency parole for a period of three weeks from 29.7.1995 to 20.8.1995 by order dated 28.7.1995 to attend his ailing mother. He was released on emergency parole on the same ground for two weeks from 7.12.1995 to 21.12.1995, which period was extended for one week by order dated 18.12.1995 and again for four days by order dated 29.12.1995. The convict did not surrender and remained absent from 2.1.1996 to 5.1.1996. Again on an application dated 10.7.1996, moved by the father of the convict, he was granted three weeks emergency parole by order dated 10.7.1996 and he surrendered on 2.8.1996.

The petitioner, who happens to be an unfortunate mother of the deceased said to have been murdered by respondent No. 4, has moved this petition that respondent No. 4 is obtaining his release on parole from time to time on fake grounds in collusion with the authorities. It has been further stated that during a raid conducted by the police of Shahabad, the mother of the convict was not found admitted in the hospital and the parole was obtained on false representation by forging record, and a case FIR No. 213 dated 12.7.1996 has been registered at Police Station Shahabad, for the offences under section 420, 467, 471 and 218, Indian Penal Code, against Dr. Bhaskar Gupta, in this respect. It has also been alleged that the appeal of the convict is pending disposal in this Court and bail has already been declined to him, but the convict is getting his release from the jail from the Executive Authorities for extraneous reasons, and has also been extending threats to the petitioner and his family members and the complaints made by the petitioner and her husband to the Authorities are of no effect.

Notice was issued to the respondents. In reply, the fact that respondent No. 4 has been convicted for committing the murder of Tejinder Pal Singh son of the petitioner and sentenced to undergo life imprisonment by Sessions Judge, Ambala, by judgment dated 9.2.1995, has been admitted. It has also been admitted by the respondents that the said convict has been released on emergency parole or other paroles as enumerated above by the competent authorities under the relevant provisions of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988. It has been further stated that the parole has been granted to the convict by the competent authority after satisfying itself about the existence of the statutory ground for such release and the allegations made by the petitioner in the petition are false and frivolous. The locus standi of the petitioner to file the present petitioner has also been challenged.

I have heard the learned counsel for the parties and have gone through the record.

It is no doubt true that the power of suspension, remission and commutation of sentences, as contained in Chapter XXXII(E) of the Code, and Articles 72 and 161 of the Constitution of India, is essentially executive in nature and is in the domain of the authorities who have been clothed with the said powers, and the Courts are not required to look into adequacy or inadequacy of the reasons which led to the exercise of the said powers. But, at the same time, it cannot be held that an order passed in exercise of the said powers cannot be looked into by the Court on any of the grounds. The Courts have jurisdiction to investigate if the said powers have been exercised mala fide. In my opinion, mala fide exercise of a power is species of fraud and a power which is mala fide exercised so as to say that the same is exercised for extraneous considerations, which are not germane to the exercise of the powers in question, is ultra vires. It is well settled that even the executive orders, if passed mala fide, are ultra vires and are vitiated. Therefore, the question of the mala fide exercise of the power is a question which Courts will always have jurisdiction to examine when a proper case is made but for the same. In the present case, allegations of mala fide have been levelled against the authorities in exercising the power to release the convict on parole on fake grounds and forged documents. Therefore, it cannot be said that the present petition is not maintainable.

As regards the locus standi of the petitioner to file the present petition, it is not disputed that she is the mother of Tejinder Pal Singh, for whose murder respondent No. 4 has been convicted and sentenced. Once it is held that an order can be challenged on certain grounds, some person must have a locus standi to challenge the same. It is completely a different matter that a petitioner may fail as he may be unable to prove any of the grounds on which an executive order can be assailed, but to say that no person has a locus standi to challenge such an order will not be correct position of law. The petitioner, being the mother of the deceased, is definitely an aggrieved person by the offence stated to have been committed by respondent No. 4. No doubt, in our criminal jurisdiction, in cognizable offences, the State steps in as the prosecutor. But at the same time if the order of pardon and clemency or parole can be challenged on any of the grounds, there must be some person who will have locus standi to challenge the same. If there can be any such person, there cannot be a better person than the petitioner in the present case.

In Gadde Vantakeswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828, the Apex Court enunciated the law on the point as under :

"A petitioner who seeks to file an application under Article 226 of the Constitution should ''ordinarily'' be one who has a personal or individual right in the subjectmatter of the petition. A personal right need not be in respect of a proprietary interest; it can also relate to an interest of a trustee. That apart in exceptional cases, as the expression ''ordinarily'' indicates, a person who has been prejudicially affected by an act of omission of an authority can file a writ even though be has no proprietary or even fiduciary interest in the subject matter thereof."

Though the petitioner may not have any legal right as such to have been infringed by the grant of parole to respondent No. 4, but she certainly has got a personal or individual right as she is the real person who felt aggrieved because of criminal acts done by respondent No. 4. Therefore she has got a locus standi to file this petition.

Now the crucial question arises as to whether the release of the convict on parole just within a short period of his conviction which was extended from time to time from Central Jail, Ambala, and thereafter grant of parole on the same ground and extension thereof from time to time from District Jail, Kurukshetra, is mala fide and for extraneous reasons, as alleged by the petitioner. From a bare reading of the reply filed on behalf of the Superintendent, Central Jail, Ambala, and the Superintendent, District Jail, Kurukshetra, it is evident that the petitioner is being released on parole on applications being made by his father to attend to his ailing mother. On an information, the hospital at Shahabad was raided and the mother of the petitioner was not found to be admitted there and the record of the said hospital was found to have been manipulated and forged by the concerned doctor, on the basis of which parole was granted to respondent No. 4. It may be noted that the request of respondent No. 4 for grant of bail on the same ground during the pendency of the trial was rejected even by this Court. Thereafter, the said convict had not been released on bail even in the appeal against his conviction and sentence. Therefore, there are reasonable grounds to believe that the paroles granted to respondent No. 4 may be the result of fraud or misrepresentation of facts by him, or may be the result of some extraneous or mala fide action of misuse of powers by the Authorities. But the same requires determination and no definite opinion can be expressed on the basis of the material available on this record. It is not disputed that an Executive Authority cannot scuttle an order of conviction and sentence passed by a Court of competent jurisdiction by misusing its statutory or constitutional powers.

As a result of the above discussion, the Sessions, Judge, Karnal, is directed to hold an enquiry into the existence or otherwise of the grounds for the release of the petitioner on parole from time to time, as detailed above. The Registry is directed to immediately send a photostat copy of the complete paper book along with the original record of the Central Jail, Ambala, and District Jail, Kurukshetra, (two files retained in this Court), and a copy of this order to the said Sessions Judge for his information and compliance. The Sessions Judge shall submit his report within a period of four months from the date of receipt of this order. To repeat the order dated September 13, 1996, respondent Nos. 1 to 3 are hereby directed not to release the convict respondent No. 4 on parole/furlough without the express approval of this Court till further orders.