Shiv Kumar vs State of Haryana

A. S. Nehra, J.

Shiv Kumar has filed this petition under Section 482 of the Code of Criminal Procedure read with Article 226/227 of the Constitution of India for quashing jail punishments dated 15.6.89, 12.3.90 and 15.11.90 awarded by the Superintendent, District Jail, Rohtak.

The petitioner was convicted under Section 302 IPC and was sentenced to undergo life imprisonment on 30.3.1988 by the Additional Sessions Judge, Rohtak. The petitioner remained as undertrial prisoner from 4.7.1987 to 29.3.1988 and thereafter he is undergoing life imprisonment and on 9.12.1990 he was transferred from District Jail, Rohtak to Central Jail, Hissar.

The petitioner has stated in his petition that he has been denied the concession of parole and furlough by the jail authorities on the ground that he has committed three jail offences although the petitioner has enjoyed two weeks parole from 16.2.90 to 3.3.90 one week parole from 16.6.1990 to 24.6.90 and thereafter he was released on parole on 28.6.1990 for six weeks. It was further alleged in the petition that he was implicated in a false case by the jail authorities on 15.6.1989 on the ground that he had a quarrel with another prisoner Bijender and that Bijender got an injury on his nose. It is further stated in the petition that in consequence of the alleged incident, he was kept in a separate cell and a cut of seven days was imposed by respondent No. 2 in the remission. It is further alleged that he was not given any opportunity whatsoever to defend himself nor he was allowed to crossexamine the witnesses examined by respondent No. 2 meaning thereby that the punishment dated 15.6.1989 was awarded without affording him any opportunity to cross examine the witnesses or to defend himself. It is further alleged by the petitioner that the alleged confession made by him has been made the sole basis for the punishment.

It is further alleged by the petitioner that similarly on 12.3.1990, the petitioner was implicated in another false case on the allegation that he had sent a false certificate with regard to his sister''s marriage. In this case, the petitioner was awarded punishment and a cut of four days was imposed in his remissions. It has been further alleged by the petitioner that neither the said false certificate was ever shown to him nor its contents were put to him. The petitioner never submitted such an affidavit as is alleged nor he was ever afforded any opportunity to defend himself or to crossexamine the witnesses examined by respondent No. 2.

It is further alleged by the petitioner that again on 15.11.1990, the petitioner was implicated in a false case and the punishment awarded to the petitioner was a major punishment and he was kept in a separate cell for 30 days and a 30 days'' cut was imposed by respondent No. 2 on his remissions.

The petitioner has further alleged that the three jail punishment cases were not sent to the concerned learned Sessions Judge for judicial appraisal and, therefore, the jail punishments are liable to be quashed because no judicial appraisal was obtained by respondent No. 2. Notice of this petition was given to the respondents.

Written statement on behalf of Shri C. S. Yadav, Officiating Superintendent, District Jail, Rohtak has been filed by the respondents. In para 2 of the written statement, it has been contended that the petitioner has four jail offences to his discredit and not three as mentioned in the petition and that he has committed last offence on 13.7.1992 in the Central Jail, Hissar for which punishment of separate confinement for 1 month 15 days was awarded to the petitioner. It has been mentioned in the written statement that the parole mentioned in the petition by the petitioner was granted by this court in Criminal Writ Petitions No. 227 of 1990, 1656 of 1990 and 1517 of 1990 filed by the petitioner.

In reply to para 3 of the petition, it has been submitted that an attack on another convict Bijender s/o Hari Singh was made in jail factory by the petitioner in the presence of Deputy Superintendent (Factory) and Bijender received an injury on his nose. It is further submitted that due enquiry was held by the Superintendent Jail in this regard and full opportunity was given to the petitioner to refute the allegation against him but the petitioner had nothing to say in contradiction thereof and that thereafter the petitioner was punished under the rules. It has been further stated that the petitioner was produced before the learned District and Sessions Judge, Rohtak at the time of his jail inspection on 29.6.1989 in connection with the approval and judicial appraisal of the punishment awarded to the petitioner and the punishment was duly appraised judicially by the District and Sessions Judge, Rohtak after hearing the petitioner and after going into all pros and cons of the case. The copy of order of punishment dated 15.6.1989 and of judicial appraisal are attached as Annexure R.1 and R.2 respectively.

In reply to the contents of para 4 of the petition, it has been submitted by respondent No. 2 in his written statement that the petitioner applied for release on parole for the marriage of his sister fixed for 10.2.1990 which was found false on verification that the petitioner filed a Criminal Writ Petition No. 227 of 1990 for grant of parole on the same ground of marriage of his sister fixed for 10.2.1990 and availed two weeks'' parole from 16.2.1990 to 2.3.1990 by producing false and fabricated documents in this court and that the said parole was allowed by this court on 7.2.1990. It has been further submitted in the written statement that on filing of reply by the respondents the said writ petition was dismissed by this court on 21.2.1990. Copy of the writ petition filed by the petitioner and the reply filed by the respondents to the writ petition are attached with the written statement as Annexures R.4 and R.5 respectively. It has been submitted that due enquiry was held by the Superintendent Jail in this regard and full opportunity was given to the petitioner to refute the allegation against him but the petitioner had nothing to say in contradiction thereof and that thereafter the petitioner was punished under the rules. It is further stated in the written statement that the District and Sessions Judge, Rohtak duly appraised the punishment after perusing the whole case. A copy of judicial appraisal of the punishment is attached as Annexure R.6.

In reply to para 5 of the petition, it has been submitted in the written statement that the petitioner has made false allegations against the administration. It is further stated that due enquiry was held by the Superintendent Jail in this regard, in presence of all prisoners of the Jail and full opportunity was given to the petitioner had nothing to say in contradiction thereof and only thereafter the petitioner was punished under the rules. It is further stated that the petitioner was produced before the learned District and Sessions Judge, Rohtak at the time of his jail inspection on 30.11.1990 in connection with the approval and judicial appraisal of the punishment awarded to the petitioner and the punishment was duly appraised judicially by the District and Sessions Judge, Rohtak after hearing the petitioner and after going into all pros and cons of the case. The copy of judicial appraisal is attached as Annexure R.7.

Mr. Sunil Chadha, Advocate, for the petitioner has contended that the order of judicial appraisal is quasijudicial in nature. The District and Sessions Judge is expected that while appraising the order of jail punishment he should issue a notice to the convict so that the convict can point out any legality or illegality which may have been committed by the jail authorities. The simple and cursory look at the order of the jail authorities awarding the punishment cannot be described as judicial appraisal. In support of his argument, he has relied upon Tej Ram v. State of Haryana, 1993(1) Recent Criminal Reports 412 and Leelu Ram v. State of Haryana, 1991(3) Recent Criminal Reports 125 .

Mr. K. S. Godara, Assistant Advocate General, Haryana has contended that the petitioner filed Criminal Writ Petition No. 227 of 1990 vide Annexure R. 4 under Section 482 of the Code of Criminal Procedure read with Article 226/227 of the Constitution of India for issuing a direction to the jail authorities to release the petitioner on emergency parole under Section 3(1)(a) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 for the solemnisation of the marriage of his sister stating that the marriage of his sister Sunita Rani has been fixed with Mahabir son of Godu Ram resident of village Bahu Akbarpur, District Rohtak for 10.2.1990. Along with the petition, the petitioner filed affidavits of would be motherinlaw of his sister. The petitioner was granted two weeks'' parole on 7.2.1990 by this Court and the petition filed by the petitioner was adjourned to 21.2.1990.

Shri L. C. Dalal, Superintendent, District Jail, Rohtak filed written statement on behalf of the respondents in Criminal Writ Petition No. 227 of 1990 (Shiv Kumar v. State of Haryana).

In the written statement it was stated in para 3 that the contents of para 3 of the petition are wrong being false and fabricated. It is further stated that there was no marriage of the sister of the petitioner as stated in the petition and all the certificates attached with the petition are false and fabricated, which fact is revealed by Annexure R1 attached with the written statement. In para 4 of the written statement, it was submitted that the very purpose of release applied for by the petitioner is false and as such there is no question to release him on parole. In para 6 of the written statement it was submitted that the contents of para 6 of the petition are correct to the extent that the petitioner applied for release on parole for marriage of his sister which was found false. The report of the Enquiry Officer in this regard was attached as Annexure R.1. It was further stated that all the certificates mentioned in the petition were false and fabricated. Criminal Writ Petition No. 227 of 1990 was dismissed as infructuous on 21.2.1990.

Mr. K. S. Godara has further contended that the petitioner has mis stated the facts in this petition and he has not disclosed that he obtained parole from this court by making false averments in Criminal Writ Petition No. 227 of 1990. It has been further contended by Mr. Godara that the petitioner has abused the process of the court and he was granted parole by this court because he filed false certificates from Sarpanch and Member Panchayat, Bahu Akbarpur, therefore, he is not entitled to invoke the extraordinary jurisdiction of this court under Section 482 of the Code of Criminal Procedure.

After hearing the counsel for the parties, I find force in the contention raised by Mr. N. S. Godara and hold that the petitioner obtained parole for two weeks from this court on February 7, 1990 by making false averments in the petition. Along with the petition, the petitioner filed false and fabricated certificates. There was no marriage of the sister of the petitioner fixed for February 10, 1990. Since the petitioner has abused the process of the court and obtained two weeks'' parole on February 7, 1990 by making false averments in the writ petition, therefore, the petitioner is not entitled to invoke the extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for quashing the jail punishments. In view of the above discussion, this petition is dismissed.