Abdul Samad, S/o. Abdul Ajeej Sab v. State of Karnataka by SHO, Ramanagara Town Police Station
2020-05-11
K.N.PHANEENDRA, SURAJ GOVINDARAJ
body2020
DigiLaw.ai
ORDER : IA NO.I/2020 Heard the learned counsel appearing for Appellant Nos. 1 & 5 (A1 & A5) and the learned Special PP on IA No.1/2020 filed under Section 482 of Cr.PC. in Crl.A. No.277/2018, praying for release of the said appellants/accused on parole for 15 days or on adinterim bail by suspending the sentence dated 12.12.2017 in SC No.35/2015 passed by the I Additional District and Sessions Judge, Ramanagara, for the offence punishable under Sections 120(B), 506, 302 r/w 149 of IPC and Section 25(1B) of Indian Arms Act. We have perused the said application. 2. In the said application, the appellant Nos. 1 & 5 (A1 & A5) have sought for their release on parole by directing the competent authority to release them on parole for 15 days in order to look after their bedridden father and to meet the medical expenses of their father and also to have conjugal relationship with their wife and also to take care of their children etc.. 3. We have carefully perused the entire order sheet in this particular case. Earlier a detailed order has been passed by this Court on 19.12.2018 dismissing the application filed for suspension of sentence and for grant of bail on merits. Subsequently, on 24.10.2019 another order has been passed by this Court on IA No.1/2019 dismissing similar application filed under Section 482 of Cr.P.C. seeking grant of parole for 15 days. This Court has considered the grounds on which the said application was filed and also the prevailing circumstances, in order to reject the said application. Further on 19.11.2019, one more similar application was filed for grant of parole for a period of 30 days. Again the said application came to be rejected by this Court by assigning reasons. It appears, none of the said orders have been subjected to challenge. Again on similar grounds, this application has been filed. 4. Sri. Sirajuddin Ahmed, learned counsel for Appellant Nos. 1 & 2 (A1 & A5) submitted that, the applicants have made an application before the competent Jail Authorities seeking their release on parole and the said application has been rejected. It appears, neither the said order is shown to have been challenged nor the said order is produced before this Court. 5. In the above said background, this application is directly filed before us for grant of parole.
It appears, neither the said order is shown to have been challenged nor the said order is produced before this Court. 5. In the above said background, this application is directly filed before us for grant of parole. Therefore, we are of the considered opinion that, this Court has no jurisdiction to entertain such application for release of the said appellants/accused on parole by stepping into the shoes of the appropriate authorities, who are entrusted with such power under the Karnataka Prisons Act, 1963 and the Karnataka Prisons Rules, 1974. 6. In the above backdrop, it is just and necessary for us to go through the relevant provision ie., Section 56 of the Karnataka Prisons Act, 1963. Section 56 of the said Act deals with the release of convicts on parole, which reads as under: “56.Releaseonparole,(1) The State Government or any authority to which the State Government may delegate its power in this behalf, may subject to such conditions as may be prescribed, release on parole for such period as it may deem necessary, any prisoner in case of any serious illness or death of any member of the prisoner’s family or of any of his nearest relatives or for any other sufficient cause. (2) The period of release of a prisoner under sub-Section (1) shall not count towards the total period of his sentence.” 7. The above said provision empowers the State Government or any Authority to which the State Government delegates the power in this behalf, has to entertain such application for parole by considering the various guidelines noted in the said provision and also the various grounds urged in the application, and to consider the parole of the convicts. 8. The amended provision under Section 191 of the Karnataka Prisons Rules 1974 in fact, prescribes the procedure to be followed by the competent authorities before passing such orders for releasing the convict on parole. There are various safeguards, which are enumerated under the above said Rule to be adhered to by the competent authorities before releasing the convict/s on parole. We gainfully extract the same for easy understanding of the object of the said Rule, which reads as under: “191.ReleaseunderSection56:(1) A prisoner may be released under Section 56, either on ordinary parole or emergency parole, subject to the conditions specified below for such period as the authority releasing him may deem necessary.
We gainfully extract the same for easy understanding of the object of the said Rule, which reads as under: “191.ReleaseunderSection56:(1) A prisoner may be released under Section 56, either on ordinary parole or emergency parole, subject to the conditions specified below for such period as the authority releasing him may deem necessary. (2)(a).The Inspector General of Prisons may release any prisoner on ordinary parole under this Rule initially for a period not exceeding thirty days which may be extended for such period not exceeding thirty days at a time as the Inspector General deems fit. Provided that the total period of release at a stretch shall not exceed ninety days. (b) A prisoner who desire to be released on ordinary parole shall submit his application in Triplicate in Form No.IX to the Superintendent, who shall forward the same along with his remarks to the Inspector General along with nominal roll of the prisoner and such other information as may be required. (c) The prisoner shall execute before the Superintendent a bond for Rupees Three Thousand in Form No.X with two satisfactory sureties for a sum of rupees three thousand each or in lieu of such sureties he shall deposit an amount of rupees three thousand in cash giving an undertaking that he will return to the prison before the expiry of the period of his temporary release and that he will maintain good conduct during the period and that he shall not associate with bad elements or commit any offence punishable by any law. He shall also notify the place where he intends to reside during the period of temporary release. (d) The superintendent shall ascertain from the Executive Magistrate of the concerned Taluk and the Police concerned particulars of the sureties before accepting them and the genuineness or otherwise of the purpose for which the prisoner has applied for grant of ordinary parole. The Executive Magistrate and the police concerned shall within fifteen days after the receipt of such reference, forward their report to the Superintendent without fail. If no adverse report is received within such period, it shall be presumed that the concerned police or the Taluk Executive Magistrate have nothing adverse to report against the prisoner regarding the request made by the prisoner.
If no adverse report is received within such period, it shall be presumed that the concerned police or the Taluk Executive Magistrate have nothing adverse to report against the prisoner regarding the request made by the prisoner. The Superintendent shall thereafter make his recommendation to the Inspector General of Prisons, who shall examine and pass suitable orders for release of prisoner on such parole subject to the conditions specified in clause (c). (e) The expenses of the journey to and fro shall be borne by the prisoner concerned. (f) If a prisoner fails to surrender within the stipulated period of ordinary parole or fails to abide by the conditions laid down in the bond executed by him, proceedings may be initiated against the prisoner and also against his sureties under Sections 446 and 447 of the Code of Criminal Procedure 1973, as if it is a bond executed by the said prisoner and sureties before a court under the said Code. (g) The release and surrender reports shall at once be submitted by the Superintendent to the Inspector General and a copy thereof sent to the District Magistrate and the Superintendent of Police concerned. (h) The period spent on ordinary or emergency parole shall not count towards sentence undergone as it is a temporary suspension of sentence. (i) Both ordinary and emergency parole cannot be claimed as a right, but it is concession granted to the convicts sentenced to long term imprisonment. This concession is subject to cancellation by the authority competent to grant parole. (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 one 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.
(ii) At the time of release, the prisoner must have served one 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. (3)(a) A prisoner may be released on emergency parole for such period not exceeding fifteen days, at a time as the authority releasing him deems fit for attending the last rites in case of death or in the event of terminal illness of father, mother, spouse, son, daughter, own brother and own sister of such prisoner or for attending the marriage of own son or own daughter or own brother or own sister. (b) Emergency parole may be granted to a prisoner subject to the following conditions namely, (i) he has been sentenced by a Court to imprisonment for a term or imprisonment for life for an offence under any law other than a law relating to matter to which executive power of the Union Government extends; (ii) his conduct in prison has been satisfactory; (iii) If the prisoner in question is a habitual criminal or if he was convicted for an offence of dacoity, robbery, rape or for offences under Chapters-VI, VII or XV of the Indian Penal Code, the Superintendent may release him from prison under adequate escort to attend to the emergencies cited at clause 3(a) subject to the condition that such release is limited to the barest minimum period; (iv) The number of releases allowed for visiting an ailing next of kin shall be limited to one in respect of the same next of kin. (c) Every application for grant of emergency parole shall be submitted in Form No.XI to the Superintendent by the Prisoner. (d) Every such application shall be accompanied by a certificate issued by the Station House Officer of the concerned jurisdictional police station or the concerned village accountant or the Head Master or teacher of the local Government School or any elected representative of the Grama Panchayat concerned, confirming the death or terminal illness or marriage and the type of relationship of the deceased with the prisoner. (e) The Superintendent of Prison shall grant emergency parole to a prisoner subject to other conditions laid down in clause (c) of subrule (2) of Rule 191.
(e) The Superintendent of Prison shall grant emergency parole to a prisoner subject to other conditions laid down in clause (c) of subrule (2) of Rule 191. (f) The Superintendent of prison may, at his discretion, verify the genuineness of the certificates produced by the prisoner by contacting the Station House Officer of the concerned Police Station by wireless or phone or by any other means, in order to satisfy himself regarding the truth or otherwise of the grounds made out by a prisoner for his release on emergency parole. (g) Expenses of the journey to and fro shall be borne by the prisoner”. 9. In view of the above said Rule, it is crystal clear that the Court cannot usurp the power of competent authority to directly entertain such application for parole without the competent authority applying their mind to the facts and circumstances and the procedures contemplated under the above said Rule. The Court may not be in a position to ascertain genuineness of the grounds urged in the application without following the procedure under Rule 191 as noted above. A separate authority is contemplated to ascertain the reality and genuinity of the circumstances pleaded by the convict. Therefore, the competent authority has to exercise the powers under Section 56 of the Act after following the procedure under Rule 191 of Rules noted supra. 10. Of Course, any such order passed by the competent authority requires to be communicated to the person, who sought for such parole, so as to enable him to question the same before the Competent Court. 11. Learned counsel for the appellants/accused1 & 5 submitted that the authorities have not actually given a copy of the rejection order on his application so as to enable him to file appropriate petition. Therefore, we feel it just and proper to direct the competent Jail Authorities, who are authorized to pass appropriate orders under Section 56 of the Karnataka Prisons Act, to provide a copy of the order passed by them on the application filed by Appellant Nos. 1 & 5 (A2 & A5) for releasing them on parole, so as to enable them to question the same in accordance with law.
1 & 5 (A2 & A5) for releasing them on parole, so as to enable them to question the same in accordance with law. We also make it clear that such applications for parole are not directly be entertained by the Courts even by exercising powers under Section 482 of Cr.P.C., as a separate alternative efficacious remedy is available under the Karnataka Prisons Act and Rules. Therefore, we are of the opinion that the application itself is not maintainable before this Court in view of the above facts and circumstances and the legal aspects noted above. Hence, the application-IA No.1/2020 is devoid of merit and the same is liable to be dismissed. 12. Accordingly, the application-IA No.1/2020 is dismissed. However, liberty is given to the Appellant Nos. 1 & 5 (A1 & A5) to approach the Competent Authorities if need arises in future and if such application is filed, the Competent/Appropriate Authorities are directed to consider the same and pass appropriate orders on their applications, depending upon the changed circumstances, if any, in accordance with law.