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Judgment
M.Nagaprasanna, J
The petitioner is before this Court seeking a direction by issuance of a writ in the nature of mandamus to respondent No.2 to release her son - convict (CTP No.4193) – Naveen @ RX on general parole for a period of 90 days in terms of the Prison Manual.
Heard Sri Sirajuddin Ahmed, learned counsel for the petitioner and Sri K.P.Yoganna, learned Additional Government Advocate for the respondents – State.
A crime comes to be registered against the son of the petitioner in crime No.26/2016 for offences punishable under Sections 143, 147, 148, 302 r/w. 149 of the IPC. The police after investigation file a charge sheet and the case is registered as Spl.C.No.302/2016. The son of the petitioner gets convicted for the offences in terms of the judgment of the Court of Sessions dated 07.03.2022. The petitioner, the mother of the convict is before this Court in the subject petition on the score that she is suffering from Spondylitis and other ailments. She desires that her son to be with her as she had already admitted to the hospital for 23 days and is bed ridden on the advise of the doctor.
Learned counsel for the petitioner submits that the petitioner has been in prison for the last 7 years 6 months as on 20.01.2024. It is her submission that the petitioner is suffering from ailments and wants her son to be with her.
Learned High Court Government Pleader would put up objection to the grant of any parole on the score that out of three cases, the son of the petitioner is not granted bail in one case.
I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the material on record.
The afore-quoted facts are not in dispute and therefore, requires no reiteration. The issue lies in a narrow compass. The only issue that falls for consideration is, whether the son of the petitioner would be entitled to the relief that is sought in terms of the prayer made in the writ petition.
The petitioner is seeking enlargement of her son on general parole for the first time in the last 7 years and 6 months for him being imprisoned for the offences under Sections 143, 147, 148 302 r/w. 149 of the IPC.
A co-ordinate bench of this Court in an identical circumstance in W.P.No.201808/2023, disposed on 26.07.2023, has held as follows:
“7. The short question that arises for determination in the present matter is whether an application for Parole can be rejected merely because an Appeal has been filed or a bail application is pending consideration?
Clause (j) of sub-rule (2) of Rule 191 of Rules, 1974 prior to the amendment is reproduced hereunder:
"191. Release under Section 56.-
(2) (a) to (i) xxxx
(j) The following shall be the eligibility conditions for release of prisoners on ordinary parole:-
i) A prisoner who has been classified as habitual criminal for the purpose of these rules and who has had more than three convictions or against whom cases are pending before courts (for offences punishable with death or imprisonment for more than 7 years) shall not be eligible for parole.
(ii) At the time of release the prisoner must have served on half of his sentence including remission, or a period of not less than two years of sentence including remission, whichever is less and there should be a gap of six months between two paroles.
(iii) His conduct in prison has been good."
The amendment carried out to sub-clause (i) of Clause (j) of sub-rule (2) of Rule 191, is as under:
"in clause (j)
a. in sub clause (i) after the words "against whom cases" the words "or bail applications" shall be inserted and
b. the words and brackets "(for offences punishable with death or imprisonment for more than 7 years)" shall be omitted."
By virtue of both the rule and the amended rule, an application for parole filed by a convict in custody can be rejected initially when the cases are pending, subsequently, by way of amendment where the bail applications are pending. In my considered opinion, a case pending would not take into consideration an appeal, because an appeal is filed in furtherance of a conviction. It is on such conviction and being in custody, that a parole application is filed, the cases which are pending mentioned in Clause (j) has to be read ejusdem generis in association and conjunction with the earlier words which relate to a prisoner who has been classified as habitual criminal and had more than three convictions or against whom cases are pending, that would only mean cases other than the case in which the accused has been convicted are pending.
In the event of there being any other criminal cases against the accused, the same could be taken into consideration by the prison authorities for rejection of the parole application. The word "cases" as afore observed in my opinion, cannot include an appeal filed from an order of conviction. This I say so for the reason that if such an interpretation as contended by learned Additional Government Advocate is accepted, then it would result in a situation where a person convicted of an offence if files an application for parole without filing appeal, his application would be considered. But, merely because, a convict has filed an appeal, his application would stand rejected due to the filing of an appeal.
This would amount to a fetter being imposed by the executive under a subordinate legislation on a right to file an appeal by a convict which can never be the case, more so, when the right to file an appeal in terms of conviction is a right guaranteed under Article 21 of the Constitution of India. The Apex Court as also this Court provides legal aid and legal assistance to a convict to file an appeal under the aegis of the Legal Service Authority, be it either the National Legal Service Authority or the Concerned State Legal Service Authority. On the one hand, when filing an appeal on a conviction being recognized to be a right guaranteed under the Article 21 of the Constitution of India which is supported by the Courts, on the other hand, the executive seeking to restrict the exercise of such right by imposing a fetter of not considering an application for parole, if an appeal is filed would act contrary to and is an antithesis to Article 21 of the Constitution.
Thus, for both the above reasons, I am of the considered opinion that the word "cases" which is used in sub-clause (i) of clause (j) of sub-rule (2) of Rule 191 of Rules 1974, can only mean cases other than the case where the accused has been convicted and would not include an appeal from the case where an order of conviction is passed.
Insofar as the further contention that the parole application has been rejected on account of pendency of a bail application, there may be some substance, in considering the pendency of a bail application while considering an application for parole, inasmuch as, if a bail application were to be allowed, the question of grant of parole would not arise. It is only when a bail application is rejected, the question of considering a parole application would arise. Thus, even where a bail application is rejected, the application for parole would have to be considered in terms of the applicable law and if no grounds are made out entitling the applicant to be released on parole, the said application could be rejected, otherwise, the same would have to be allowed.
In that view of the matter, I pass the following:
ORDER
i. The Writ Petition is partly allowed.
ii. The relief sought for is moulded, the endorsement issued by the fourth respondent dated 15.03.2023 at Annexure- F, is hereby quashed. The matter is remitted to the fourth respondent to reconsider the application for parole in terms of the above observation and in accordance with law, within fifteen days from the date of receipt of a certified copy of this order.
iii. It is made clear that this Court has not made any observation as regards the entitlement or not of the petitioner for parole. This Court has only made observation on the eligibility of the petitioner to file an application for parole.
iv. The learned Additional Registrar (General) is directed to forward a copy of this order to the Director General of Police, Bengaluru, for onward distribution to the concerned authorities. A translated copy of the above order in Kannada shall also be so forwarded.”
Therefore, as the bail application in one of the cases is pending before the concerned Court and in the light of the afore-quoted order of the co-ordinate bench, which covers the issue in all its fours, the second respondent is directed to reconsider the application for general parole.
For the aforesaid reasons, the following:
ORDER
(i) The Writ Petition is allowed in part.
(ii) The endorsement dated 16.01.2024, rejecting the application dated 10.01.2024, stands quashed.
(iii) Mandamus issues to respondent No.2 to reconsider the representation of the petitioner for general parole for a period of 30 days, in terms of the observation made in W.P.No.201808/2023, in accordance with law, within a period of 15 days from the date of receipt of a certified copy of this order.
(iv) It is made clear that the entitlement of the petitioner for general parole is not considered in the subject petition.
(v) The learned Additional Registrar (General) is directed to forward a copy of this order to the Director General of Police, Bengaluru, for onward distribution to the concerned authorities. A translated copy of the above order in Kannada shall also be so forwarded.”