KISHOR KANJI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Special Criminal Application under Art. 226 of the Constitution of India has been placed before me by the order of the Hon'ble Chief Justice as there is difference of opinion between KJ, Vaidya, J. and J.M. Panchal, J. On 26.6.1992, the petitioner Kishore Kanji Patel filed this Special Criminal Application seeking directions to release him on parole leave for a period of one month under the provisions of Prisons (Bombay Furlough & Parole) Rules, 1959, (hereinafter referred to as "the Rules of 1959").

(2.) The petitioner has been convicted for offence under Sec. 302 of IPC and sentenced to imprisonment for life by judgment dated 20.5.1983 passed by the Addl. Sessions Judge, Gondal at Rajkot which has been was confirmed by this Court in appeal. At the relevant time, he was undergoing life sentence in the Central Jail, Sabarmati. His application for parole was rejected by the impugned order dated 17,6.1992 passed by the Inspector General (Prison), Ahmedabad. The petitioner sought parole for a period of 30 days on the alleged ground of sickness of his wife Pushpaben. In support of the said ground, the petitioner produced a medical certificate to the effect that she was suffering from bronchial asthama. It appears that the matter first came up for admission before the Division Bench on 29.6.1992. The Court directed the Police Inspector of the concerned area to record the statement of the doctor who issued the medical certificate in question and submit a report on the enquiry made by him on the line suggested by this Court in the decision rendered in the case of Ala Ramji vs. State of Gujarat, reported in 1991 (1) GLR 722. The matter was adjourned to 7.7.1992. On the said date, the Addl, Public Prosecutor submitted remark sheet. It revealed from the remark sheet that when the petitioner was released on parole for 15 days on the earlier occasion, he did not surrender in time and remained absconding for a period of 1411 days. He was arrested by the police and sent to jail. It also revealed that during this period, the petitioner was found involved in several criminal cases including the one namely; Unja State Bank of India dacoity case, Still, he was released on parole on 2.3.1990 and thereafter, for the period from 15.51990 to 25.5.1990, by the order of the State Government on the ground of partition of family property. Noticing these facts, the Court directed the Addl. Public Prosecutor to apprise the Court under what provisions of law, the State Government exercised the power to order release of the petitioner on parole? The case was adjourned to 13.7.1997. On 14.7.1997, Mr. M.G. Chauhan, Under Secretary, Home Department filed affidavit stating inter alia, that at no point of time, the Government exercised power under Rule 18(1) of the Rules of 1959 for the release of the petitioner on parole. It was also stated that the Government also did not recommend to the I.G. (Prison) to grant parole or furlough to the petitioner considering the facts and circumstances. Since the affidavit did not satisfy the Court, the Public Prosecutor was directed to produce the concerned file, a perusal of the file, the Court noticed that the first round of parole leave started when Pushpaben, wife of the petitioner Kishore Kanji submitted application dated nil to the then Home Minister praying for release of her husband on parole on the ground that his presence was necessary during partition of family property. The Court noticed an endorsement on the margin of the application showing that the same was received by the department on 19.2.1990 along with certificate dated 2.1.1990 issued by the Sarpanch, Chordi Gram Panchayat. Without collecting the necessary information, particularly with respect to his conduct in jail, the Hon'ble Minister directed the Addl. Secretary, Home Department on the same day, to grant parole to the present petitioner on special ground. The Court noticed the endorsement on the file "given parole for 15 days as ordered by the Minister". The Court also noticed that the endorsement is neither signed by the concerned Minister, nor by the Addl. Chief Secretary. However, a wireless message was sent to the I.G. (Prison), Ahmedabad conveying the decision of the Government to release the petitioner on parole for a period of 15 days. The I.G. (Prisons), by wireless message dated 22.2.1990 requested for reconsideration of the decision inviting the glaring facts that the petitioner enjoyed 5 times parole in all for 1435 days including 1141 days absconding period. During the said period, he indulged himself in a number of cases including the Unja Bank robbery case. However, the State Government by wireless communication dated 1.3.1990 directed the I.G. (Prison), to release the petitioner on parole. The Home Secretary also directed the I.G. (Prison) on phone to release the petitioner on parole. Still the I.G. (Prison), by wireless message dated 3.3.1990, again requested the State Government to-reconsider its decision, as release of the petitioner will be hazardous. On the second request of the I.G. (Prison), the Government took a decision not to release the petitioner on parole. The things did not stop here and the second round of parole came to be initiated by Pushpaben when she made an oral representation to the Minister concerned for release of her husband petitioner on parole repeating the same ground i.e., requirement of presence of the petitioner while distribution of family property. The concerned Hon'ble Minister recommended that the petitioner Kishore Kanji Patel be released on parole on the ground that if there were any difficulties, he may be released with police escort. The Court noticed that on the left hand side of the margin the date given is 8.3.1990. The concerned Secretary has noted "please put up the papers on 12.3.1990." The Court also noticed that the Home Department, by communication dated 16.3.1990, directed the IG (Prison) to release the petitioner on parole for 15 days. Howeyer, as the petitioner was involved in dacoity ease, while he was on parole, he had simultaneously filed an application for hail before the Addl. Sessions Judge, Mehsana, who granted him bail. The said order was challenged by the State Government before this Court. The High Court, initially Stayed the Order releasing the petitioner on bail. On hearing the parties, by order dated 8.3.1990, the High Court set aside the order of the Addl. Sessions Judge, Mehsana granting regular bail to the petitioner. However, the Court directed to release the petitioner on temporary bail for a period of" 10 days. In view of this, the Secretary (Home), under communication dated 11.4.1990, recalled the order of parole and directed the I.G. (Prison), to release the petitioner on bail as directed by the High Court.

(3.) K.J. Vaidya, J. by oral judgment dated 14.7.1997, considering the various provisions of Rules of 1959, came to the conclusion that the Minister or the Secretary is not competent authority to direct release of a prisoner on parole. The learned Judge, further held that even if the power vests in the Minister or Secretary, the power cannot be exercised arbitrarily without making preliminary enquiries regarding the truthfulness and genuineness of the ground pleaded for parole. On facts, the learned Judge arrived at the conclusion that the petitioner does not deserve to be released on parole as to show mercy on him will be uncharitable to the society and permitting him to commit further crime prejudicial to the social justice. The learned Judge severely criticised the Hon'ble Minister for abusing the power in a most arbitrary and illegal manner. The learned Judge further stated that the Court was not aware whether the arbitrariness and illegality noticed in the instant case is merely a tip of the ice-berg or not. The learned Judge also severely critised the Addl. Chief Secretary describing such officers as spineless and indiscreet. In view of this, the learned Judge though it desirable to direct the Home department to place on the floor of the Legislative Assembly in its every session particulars of the prisoners released on parole and/or furlough so as to provide necessary opportunity to its Members as well as Press and the citizen thereby, the method and manner in which the power to release the prisoner on parole/furlough came to be exercised. The learned Judge also enumerated the items which can be specifically mentioned from the statements of facts to be placed before the Legislative Assembly. In the opinion of the learned Judge, it is only on the basis of such record, the Members of the Legislative Assembly and the public can have an opportunity to know whether the powers of parole/furlough are exercised legally or not. The learned Judge also expressed that the said information in his view is absolute and inalienable right of each and every citizen. The learned Judge further felt desirable if the observations made in the judgment are usefully incorporated by making special provision about the same in the Prisons (Bombay Furlough & Parole) Rules, 1959. While rejecting the Special Criminal Application the learned Judge directed the Registrar to immediately forward a copy of the judgment to the Chief Minister of State of Gujarat, the Chief Secretary and the Secretary, Legal Department, State of Gujarat.