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2015 DIGILAW 99 (JK)

Mohd. Amin Dar v. State of J&K

2015-03-13

B.L.BHAT

body2015
JUDGMENT : Bansi Lal Bhat, J.:- 1. Learned counsel for the petitioner has filed two writ petitions for passing appropriate directions. First of all, I would like to deal with the writ petition bearing OWP No. 1662/2014. The brief material facts of the case are that the petitioner was convicted under Section 302 RPC and Section 27 of the Arms Act by the learned Additional Sessions Judge, Ramban, and was sentenced to undergo life imprisonment under Section 302 RPC and 7 years rigorous imprisonment under Section 27 of the Arms Act in terms of judgment dated 20.08.2002. It is stated that this Court vide judgment dated 02.03.2011 acquitted the petitioner under Section 27 of the Arms Act, but upheld his conviction and sentence under Section 302 RPC. It is further stated that while the petitioner was serving the sentence, he got seriously ill and is receiving treatment in the various Government Hospitals of the State for various types of ailments he is suffering. It is further stated that after evaluating the petitioner in the Cardiology Department of SKIMS, he was declared as a case of Old IWMI, a triple vessel disease. The case of the petitioner is that due to the ailment he is suffering, he requested the respondents to release him on parole. His case was referred to the Superintendent of Police, Ramban, which is his actual place of lodgment, who in turn informed the respondent No. 4, the Superintendent, Central Jail, Srinagar, where he is presently lodged that his office shall have no objection if the petitioner is released on the eve of Independence Day of 2014. It is contended that after getting necessary inputs from respondents 3 to 5, respondent No. 2, the Director General of Prisons, Jammu & Kashmir, authorized temporary release of the petitioner from custody in terms of order dated 04.10.2014 for a period of six weeks subject to certain conditions in the order itself. 2. It appears that pursuant to order dated 04.10.2014, the petitioner was released by respondent No. 4 on 16.10.2014, with a direction to the petitioner to surrender back in the Central Jail, Srinagar. It is stated that thereafter the petitioner went to the SKIMS Hospital, Srinagar, and got himself examined. 2. It appears that pursuant to order dated 04.10.2014, the petitioner was released by respondent No. 4 on 16.10.2014, with a direction to the petitioner to surrender back in the Central Jail, Srinagar. It is stated that thereafter the petitioner went to the SKIMS Hospital, Srinagar, and got himself examined. He has appended a photocopy of the opinion of the doctor concerned which reveals that since the petitioner suffers from heart disease, therefore, he should remain in homely atmosphere as there are chances of second impact in stressful situation. It is contended that in view of this situation, the petitioner submitted an application on 18.11.2014 to the respondent No. 2 requesting therein to extend his period of parole which was expiring on 28.11.2014 for some more months, so as to enable him to have day today checkups done in SKIMS Hospital, Srinagar. 3. Having had no response from the respondents on the application of the petitioner, he was under these circumstances left with no option but to seek indulgence of this Court for directing the respondents to grant extension in his period of parole. 4. Upon consideration of the matter, one of the coordinate Benches of this Court, directed the respondent No. 2 to consider the grant in extension of parole of the petitioner on the strength of the pleas taken in the representation and pass orders within ten days and the matter was directed to be listed on 08th December, 2014; till then it was provided that the petitioner shall not surrender. It is seen from the record that the respondent No. 2 after considering the matter in the light of the representation made by the petitioner read with the ad interim direction passed by this Court in the aforementioned writ petition, passed an Order No. 149 of 2014 dated 03.12.2014, which has the effect of rejecting the case of the petitioner for extension of the period of parole. 5. It is this order which is impugned in the second writ petition bearing OWP No. 1744/2014. Now so far as the first writ petition bearing OWP No. 1662/2014 is concerned, it has become infructuous. It shall stand disposed of alongwith CMP. 6. 5. It is this order which is impugned in the second writ petition bearing OWP No. 1744/2014. Now so far as the first writ petition bearing OWP No. 1662/2014 is concerned, it has become infructuous. It shall stand disposed of alongwith CMP. 6. Now coming to the second writ petition of the petitioner, he is seeking a writ of certiorari for quashing the impugned order bearing No. 149 of 2014 dated 03.12.2014 and a writ of mandamus commanding the respondents to extend the period of parole of the petitioner from 28.11.2014 to six months so as to enable him to get himself treated at SKIMS Hospital, Srinagar. Learned counsel for the petitioner has challenged the impugned order on so many grounds but the main ground of challenge is on the deteriorating health condition of the petitioner. 7. Notice was issued to the respondents for filing their reply. They have filed the reply and contested the averments made in the writ petition. It is pleaded that the case of the petitioner was examined in the light of the rules governing the Jammu & Kashmir Jail Manual, and the application for extension of the period of parole was rejected as being contrary to the rule 52.23 and 52.24 of the Jammu & Kashmir Jail Manual. It would be fruitful to reproduce the paragraphs 7 and 8 of the reply, which reads hereunder: "7. In reply to Para 21(b), it is submitted that regarding the leave and emergency release as mentioned in the writ petition the maximum period is upto 14 days. Section 52.9 of the J & K Jail Manual reads as under: 'Leave should not be granted to a prisoner within a period of six months from the date of his surrender after the expiry of emergency release.' The Section 52.37 of J & K Jail Manual reads as under: 'If a prisoner released on emergency grounds, wants extension of the period, he may apply for the same to the Government in goodtime. If orders authorizing the extension are not received before the expiry of his emergency release period, the prisoner shall report back to the prison. As soon as a prisoner released on emergency grounds surrenders to the prison authorities, his original order of release and the bond executed by him will become inoperative. If orders authorizing the extension are not received before the expiry of his emergency release period, the prisoner shall report back to the prison. As soon as a prisoner released on emergency grounds surrenders to the prison authorities, his original order of release and the bond executed by him will become inoperative. Where therefore, a prisoner who is released on emergency grounds has applied for extension of the period of emergency release and before his application has been sanctioned, surrenders to the prison authorities, he shall not be released after such surrender without obtaining a fresh release order from Government.' The Section 52.37 does not permit to the said petitioner for extension on parole. However, it is clarified that the petitioner was released under Good Conduct Temporary Release Act, 1978 for a period of six weeks on medical grounds. There is no provision for extension of parole period. The Section 52.23 and 52.24 reads as under: 52.23 The period stated the release order cannot be extended. 52.24 Prisoners are not allowed to apply for extension of leave period. 8. In reply to Para 21(c) and (d), it is submitted that the Hon'ble Supreme Court has issued an order in the writ petition No. (Crl.) 48 of 2014 titled Union of India v. Sriharan alias Murugan and others which read as under: 'Having regard to the observations made in para 49 of the referral order, we are of the view that notice may be issued to all the State Government. Let notice be issued to all the State Government through their standing counsel representing them in the Supreme Court. Notice is made returnable on 18.2014. In the meanwhile, the State Governments are restrained for exercising power of remission to life convicts.' As and when the decision of the Hon'ble Supreme Court comes, the cases of all life convicted prisoners including the petitioner shall be accordingly decided." 8. I have heard learned counsel for the parties and considered the matter. 9. Before proceeding further in the matter, it would be appropriate to have a look on some of the provisions of the Jammu & Kashmir Manual for the Superintendence and Management of Jails. Leave and Emergency Release of prisoners are regulated by provisions enshrined in Chapter LII. It provides for leave or special leave for prisoners during the period of imprisonment in the form of parole, ticket leave, furlough etc. Leave and Emergency Release of prisoners are regulated by provisions enshrined in Chapter LII. It provides for leave or special leave for prisoners during the period of imprisonment in the form of parole, ticket leave, furlough etc. The object of releasing a prisoner on leave is, inter alia, to enable the prisoner to maintain continuity with his family life and deal with family matters. Certain categories of prisoners considered dangerous or prosecuted for serious offences involving risk to public peace or serious prison violation are not eligible for being released on leave which is only a concession. Rule 52.22 provides for period of release on leave which shall count towards sentence. Rule 52.23 provides that period stated in the release order cannot be extended. Rule 52.30, however, provides for emergency release. Under this provision, the State Government may release a prisoner on grounds of emergency categorized as follows: (i) to facilitate the inmate's presence in his family during a period of grave emergency like death or serious illness of father/mother/brother/sister/spouse/children; and (ii) to facilitate the inmate in specialized treatment for diseases like tuberculoses, cancer etc., in accordance with the opinion of the Civil Surgeon (Chief Medical Officer) and of the Prison Medical Officer." Prisoner eligible for release on leave is ordinarily entitled to be considered for emergency release. Rule 52.32 engrafts the procedure governing the applications seeking emergency release. A prisoner released on emergent grounds is required to surrender before the Superintendent of Prison on expiry of the period of emergency release. The period of release on emergency grounds does not count towards sentence. Rule 52.37 provides for extension of period of release on emergency grounds. The prisoner is required to apply to the Government for extension of period of release in goodtime. If he does not do so, he has to report back to the prison. Once he surrenders to prison authorities, his original order of release and the bond executed by him becomes inoperative. Once he surrenders he shall not be released after such surrender without obtaining a fresh release order from the Government. 10. In the case at hand, the petitioner was released from the custody in terms of order dated 04.10.2014 for a period of six weeks. Admittedly, the petitioner was released for a period of six weeks on medical grounds. He overstayed his release under orders of this Court dated 27.11.2014. 10. In the case at hand, the petitioner was released from the custody in terms of order dated 04.10.2014 for a period of six weeks. Admittedly, the petitioner was released for a period of six weeks on medical grounds. He overstayed his release under orders of this Court dated 27.11.2014. He did not claim remission in sentence. He has sought extension of period of release, as he suffered from heart ailment, a triple vessel disease, and in the opinion of doctors he was required to remain in homely atmosphere as there were chances of 2nd impact (attack) in stressful situation. 11. It is abundantly clear that the case of the petitioner was regulated by the provision engrafted in rule 52.30, and, he was entitled to apply for extension before expiry of period of emergency release. Admittedly, he had applied in goodtime. However, his plea appears to have been turned down on the ground that there was no provision for extension of parole period and the period stated in the release order could not be extended. It is manifestly clear that the respondent No. 2 has erred in holding that the period of release on emergent ground was not extendable beyond six weeks period and that there was no provision for extension of parole period. 12. Viewed so, the impugned order No. 149 of 2014 dated 03.12.2014 cannot be sustained in law and same is liable to be quashed. However, since the petitioner has surrendered back to the custody of jail, quashment of the said order though being unsustainable, would not serve any purpose. Nonetheless, in view of the fact that the petitioner had been released on parole by the respondents in terms of order dated 04.10.2014, on the health grounds and although as per opinion of the doctors of the SKIMS Hospital, Srinagar, the health ground still persists, the petitioner is entitled to a direction for reconsideration of his emergency release on fresh parole on health grounds. 13. In the aforementioned backdrop, this writ petition is accordingly disposed of with a direction to the respondents to consider the case of the petitioner for grant of parole in the same manner and on the same analogy as it was considered at the time of grant of his first parole in his favour notwithstanding the impugned order dated 03.12.2014. 13. In the aforementioned backdrop, this writ petition is accordingly disposed of with a direction to the respondents to consider the case of the petitioner for grant of parole in the same manner and on the same analogy as it was considered at the time of grant of his first parole in his favour notwithstanding the impugned order dated 03.12.2014. The consideration as aforesaid shall be accorded within two weeks, which period shall begin from the date copy of this order is made available to the respondents. 14. Disposed of alongwith CMPs.