Mohinder Bhatti vs State of the NCT of Delhi

Hima Kohli, J.—The matter was passed over on the first call as none was present on behalf of the petitioner. Same is the position even on the second call. Pertinently, the petitioner is in jail and is being represented by a Counsel engaged by the Delhi High Court Legal Services Committee.

This is a petition filed by the petitioner under Article 226 of the Constitution of India praying inter alia for his release on parole for a period of three months, to engage a Senior Advocate for filing a SLP before the Supreme Court; for arranging funds for the medical treatment for his mother and for renewing social ties with the members of his family and the society.

The petitioner, who was convicted in a case, registered as FIR No. 37/2007 with Police Station: Khajuri Khas, u/s 376/506 IPC, preferred an appeal before this Court, registered as Crl. Appeal No. 71/2009, which was dismissed vide judgment dated 11.08.2009. Since the petitioner wanted to file a SLP before the Supreme Court and also wanted to arrange for the medical treatment of his mother and renew social ties with the members of his family and the society, he applied to the Government for grant of parole. The said request of the petitioner was however turned down by the respondent on the ground that his conduct in the jail was unsatisfactory and that the police report was adverse to him. Hence, the present petition.

Ordinarily, grant of parole is an administrative function of the Government and the Courts do not entertain such a request, if made directly. However, in case, the request made by a convict for parole is turned down by the Government and the said order appears to be based on extraneous and/or irrelevant consideration, the Courts can exercise their discretion under Article 226 of the Constitution of India and direct grant of parole to a convict.

In the present case, the State has filed a reply to the notice to show cause stating inter alia that the application of the petitioner for parole was forwarded by the Superintendent Jail, Tihar New Delhi to the State under the cover of letter dated 09.09.2009. Further, vide letter dated 24.09.2009, the DCP, North-East District forwarded the report of the SHO, Police Station: Khajuri Khas to the Dy. Secretary (Home) Jail, NCT Delhi, wherein it was reported that the family of the petitioner was residing at the given address, but his parole was opposed. It was further stated that the nominal roll of the petitioner dated 08.09.2009 reflected that his jail conduct was unsatisfactory.

Although the request for grant of parole to file a SLP before the Supreme Court against the conviction and sentence for a serious offence is a relevant consideration, considering the fact that the present petition has been filed through the Delhi High Court Legal Services Committee, the said ground itself cannot be considered sufficient for grant of parole. However, the petitioner has also expressed a desire to arrange funds for the medical treatment of his mother and to establish social ties with his family members and the society. Such a request is not unreasonable unless the circumstances of the case warrant that the Court takes a different view.

In the present case, the latest nominal roll of the petitioner, as submitted on 31.03.2010 shows that against the quantum of sentence of seven years� rigorous imprisonment and fine of Rs. 5,500/- and in default thereof, simple imprisonment of 9 months, as on 15.03.2010, the petitioner had already undergone a sentence of 2 years, 11 months and 23 days. If the period of remission earned by him is added, the unexpired period of sentence as on the said date, was 3 years, 8 months and 27 days. Considering the fact that three and a half months have expired ever since the submission of the said nominal roll, the remaining unexpired period of sentence reduces to about 3 years and 5 months. In other words, the petitioner has already undergone conviction of almost half of the period of sentence. The current nominal roll also shows that the jail conduct of the petitioner for the past one year, i.e., for the year 2009, is satisfactory. A perusal of the police report does not reflect anything adverse to the petitioner.

In these circumstances, where there is no serious apprehension of breach of law and order and there is no other pending case against the petitioner and nor is there any complaint as to his past conduct, such as jumping of bail or parole granted to him earlier, it is directed that the petitioner be granted parole for a period of six weeks, subject to his furnishing a personal bond in the sum of Rs. 20,000/- with one surety of the like amount to the satisfaction of the trial court.

The aforesaid grant of parole is subject to the condition that the petitioner shall mark his attendance before the SHO of the concerned Police Station on every Monday at 10:00 AM. Further, the petitioner shall not visit the locality where the victim resides or the surrounding area thereof. He shall remain in the territorial jurisdiction of Delhi during the period of parole. Immediately after the period of parole is over, the petitioner shall surrender before the jail authorities.

A copy of this order be sent directly to the Jail Superintendent for perusal and compliance. Another copy of the order be forwarded to the Delhi High Court Legal Services Committee, for it to note the absence of the Counsel to whom the brief was assigned, and to ensure that default of appearance in cases does not occur in the future.