Raju alias Rajkumar vs State of Uttarakhand and others

V.K. Bist, J.

Petitioner, who is languishing in jail, had been convicted by the Additional District Judge/ F.T.C., Haridwar in S.T. No. 230 of 2005 “State Vs.

Raju alias Rajkumar†under Section of 302/34 of I.P.C. and sentenced life imprisonment with fine of Rs.10,000/- and additional term of one year in

case of non payment of the fine; rigorous imprisonment for a term of three years and fine of Rs.5,000/- under Section 201/34 of I.P.C. and an

additional term of three months in case of non payment of the fine; rigorous imprisonment for a term of five years and fine of Rs.5,000/- under Section

380 I.P.C. and an additional term of three months in case of non payment of fine; rigorous imprisonment for a term of 01 year under Section 411

I.P.C.; rigorous imprisonment for a term of 03 years and fine of Rs.3000/- under Section 471 I.P.C. and an additional term of 02 months in case of

non payment of the fine; rigorous imprisonment for a term of 01 year and fine of Rs.1000/- under Section 404 and additional term of 01 month in case

of non payment of the fine. All the sentences were directed to run concurrently.

Feeling aggrieved, by judgment and order dated 08.2008, petitioner preferred a Criminal Appeal before this Court, which too was dismissed.

When the petitioner was serving the sentence, as awarded to him, unfortunately, his father passed away on 26.09.2016. An application was moved

by him for custody parole before District Magistrate, Haridwar (respondent no. 2) through the Superintendent of District Jail, Haridwar. The said

application was rejected by the then District Magistrate, Haridwar and petitioner was not allowed to attend the last rites of his father.

06.10.2016 was fixed for Terahveen (rsjgoha) of his father. He, being the eldest son had to perform rituals of Terahveen of his father; therefore, he

presented another application for custody parole to attend the Terhaveen of his father on 06.10.2016. This application was also rejected by the then

District Magistrate, Haridwar. When no information was given to him, the petitioner moved another application for 06 hours custody parole to attend

Terahveen and Pagdi rites of his father. On the said application, the then Superintendent of District Jail, Haridwar submitted a report to the District

Magistrate, Haridwar on 03.10.2016 mentioning therein that the appeal against an order of conviction has already been dismissed by the Hon’ble

High Court. The petitioner has already served a sentence of 8 years 6 months and 24 days on 26.09.2016, his behaviour & conduct is good and no any

other case is pending against him.

Despite the report submitted by the Jail Superintendent, District Jail Haridwar dated 03.10.2016, the custody parole of six hours to attend the

Terahveen and perform last rituals of his father was not accepted. The then District Magistrate, Haridwar, the competent authority to grant the

custody parole to the petitioner, did not take decision on the report submitted by the Jail Superintendent, rather he sent the matter to the Commissioner,

Garhwal Region, though the Commissioner, Garhwal had no concern in the matter at all.

After suffering the mental agony due to the action of District Magistrate, Haridwar, the petitioner sent this petition to the High Court for following

direction:

“Thus, it is prayed before this Hon’ble Court that the respondents may be ordered in the interest of justice that on death of parents, siblings,

children and spouse of any prisoner/ detainee, arrangements must be made suo moto for attendance of the prisoner/ detainee in cremation/ burial and

emergency custody parole of fifteen days from the day of last rites to “Terahveen†must be accepted and the officers/ respondents, who rejected

the parole sought by the petitioner to attend cremation and “Terahveen†of his father and deliberately barred the petitioner from attending the

cremation and rites of “Terahveenâ€/ “Pagdiâ€, may be adjudged in the light of the Constitution for violation of fundamental rights of the

petitioner by causing him mental pain and harm and orders may be passed for appropriate departmental action against the officers/ respondents.â€​

Petitioner’s case in nutshell is that the District Magistrate, Haridwar was wrong in rejecting two applications of the petitioner for custody parole

for attending last rites of his father. Even, he did not take decision on his last application for grant of custody parole for 06 hours only to perform the

last rituals/ terahveen/ pagadi of his father and there was a dereliction of duties on the part of the then District Magistrate, Haridwar. It is further case

of the petitioner that the act of the District Magistrate, Haridwar was not only illegal but also inhumane. It is also his case that the mental agony,

which the petitioner has suffered, is irreparable and he will not pardon himself till his last breath as he could not perform his duties as a son towards his

father. It is his further case that his religious sentiments have been hurt, which affected him adversely and it is not a simple hurt to him rather it is

unforgettable sadness to him. Thus, the prayer is made by him is to consider and protect the rights of all detainees, in future, so that no detainee is

debarred from attending the last rites of his parents, siblings, spouse and children and also their ritual functions.

Counter affidavit was called from the respondents. A short counter affidavit has been filed by the present District Magistrate, Haridwar, stating

therein that the application dated 03.10.2016, seeking parole presented by the petitioner was inadvertently forwarded to the then Commissioner,

Garhwal Division, Pauri vide letter dated 04.10.2016, which ought to have been decided by the then District Magistrate. In the short counter affidavit,

the District Magistrate, Haridwar tendered unconditional apology on behalf of the earlier District Magistrate, Haridwar.

I have carefully considered the facts of the case. The petitioner is eldest son of his father. According to Hindu law, it is a pious duty of a son to give

funeral fire to his parents and perform last rituals of his parents. If a son is deprived of this right, the mental agony suffered by him can nowhere be

expressed in words. In Hindu religion, the eldest son is given this right to give funeral fire to his parents. Terahveen ceremony has an important role in

Hindu religion. On that day, the departed soul is remembered by the family members as well as by relatives. The concept of Terhaveen performed on

13th day is based on the concept that the departed soul travel from this world and leave to meet his/ her maker (God) after completing thirteenth

stoppage at different places to complete the journey. After death, rituals are not only done by Hindu relatives but are also performed by all near and

dear of deceased, belonging to all other religions, be it, Muslim, Christian, Sikh & others. Son of a deceased person has a right to perform last rites of

his parents. Hindu religion is not mere a religion but a way of living in a scientific manner.

The mental agony expressed by the petitioner by way of the present writ petition cannot be expressed in words. The petitioner, who has suffered

such a mental agony, cannot be compensated in any manner. The petitioner cannot go back in time and perform the pious duty he was supposed to

perform for his father. The inhumane conduct of the then District Magistrate, Haridwar is condemned.

In such a situation, when a detainee seeks parole or custody parole to perform some rituals to be performed on his part towards his family, the

concerned authority should immediately take appropriate decision for grant of parole/custody parole, depending on the facts of the case. While doing

so the competent authority may impose reasonable restrictions and ensure that the detainee may not flee away from the clutches of the law. But in

such a situation, the parole or custody parole should not be denied. The approach of authority or authority concerned in this regard should be liberal

and akin to the situation and not inhumane and arbitrary. Since, an opportunity to perform the last rituals of the father of the petitioner was not granted

by the respondent no. 2 in time, nothing can be done at this stage. This Court appreciates the petitioner’s concern about other detainees. He has

not come for his personal grievance rather he has approached this Court with a generous prayer that similarly situated person may not suffer in future

and appropriate directions be issued by this Court in this regard.

Having considered the noble idea of the petitioner and taking into consideration, the trauma caused to him, this Court is of the view that the

following directions be issued to the respondents-

(I) Respondents are directed to pay an amount of Rs. 1,00,000/- to the petitioner as compensation.

(II) All the District Magistrates are hereby directed that in case an application comes forward through Jailor or in any other manner to the District

Magistrate for grant of parole or custody parole to a convict, the same shall be decided on priority basis, before it renders infructuous, so the purpose

of application be achieved.

(III) The Chief Secretary, State of Uttarakhand is directed to communicate the directions issued by this Court to all the District Magistrates/ the

Senior Superintendents of Police/ Jail Superintendents.

(IV) The Chief Secretary, State of Uttarakhand is further directed to get the guidelines framed in this regard by considering all pros & cons.

With the aforesaid directions, the writ petition is disposed of.