Mr B a Umesh Vs State of Karnataka - Citation 1235074 - Court Judgment

Judgment:

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2024. KHC:6876 WP No.23950 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE16H DAY OF FEBRUARY, 2024 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.23950 OF2023(GM - POLICE) BETWEEN: MR. B.A.UMESH S/O LATE B.R.AJAPPA REDDY AGED ABOUT48YEARS CTP No.13627, CONVICT PRISONER SECURITY DIVISION-I, CELL No.2 CENTRAL PRISON PARAPPANA AGRAHARA BENGALURU – 560 100. (NOW IN CUSTODY CENTRAL PRISON BENGALURU) ... PETITIONER (BY SRI HASHMATH PASHA, SR.ADVOCATE FOR SRI KARIAPPA N.A., ADVOCATE) AND:

1. . STATE OF KARNATAKA BY ITS ADDL. CHIEF SECRETARY DEPARTMENT OF HOME AND PRISON VIDHANA SOUDHA BENGALURU – 560 001.-. 2 - NC:

2024. KHC:6876 WP No.23950 of 2023 2 . DIRECTOR GENERAL OF POLICE AND INSPECTOR GENERAL OF PRISON AND CORRECTIONAL SERVICES, No.4 SESHADRI ROAD BENGALURU – 560 009. 3 . CHIEF SUPERINTENDENT CENTRAL PRISON PARAPPANA AGRAHARA BENGALURU – 560 100 RESPONDENT No.1 TO3ARE REP. BY LEARNED GOVERNMENT ADVOCATE HIGH COURT OF KARNATAKA BENGALURU – 560 001. ... RESPONDENTS (BY SRI C.S.PRADEEP, AAG A/W SRI MANJUNATH K., HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ENDORSEMENT DTD2309.2023 AS PER ANNX-A AT PAGE11AND12AS ILLEGAL, ARBITRARY AND OPPRESSIVE; DIRECTING THE RESPONDENT TO GRANT30DAYS GENERAL PAROLE TO HIM ON SUCH TERMS AND CONDITIONS. THIS WRIT PETITION COMING ON FOR DICTATING

ORDER

S THIS DAY, THE COURT MADE THE FOLLOWING: - 3 - NC:

2024. KHC:6876 WP No.23950 of 2023

ORDER

The petitioner is before this Court calling in question an endorsement dated 23-09-2023 issued by the 3rd respondent/ Chief Superintendent of Central Prison declining to accede to the request of the petitioner for releasing him on parole.

2. Heard Sri Hashmath Pasha, learned senior counsel appearing for the petitioner and Sri.C.S.Pradeep, learned Additional Advocate General representing the respondents/State.

3. Facts, in brief, germane are as follows:- Owing to several crimes allegedly committed by the petitioner, he comes to be arrested on 02-03-1998 in Crime No.108 of 1998 for offences punishable under Sections 302, 376 and 392 of the IPC. The allegation was that he had raped and murdered a woman, wife of one Maradi Subbaiah. The Police, after investigation, filed a charge sheet and the case was committed to the Court of Sessions, numbered as SC No.725 of 1999. The petitioner was convicted by a judgment - 4 - NC:

2024. KHC:6876 WP No.23950 of 2023 and order dated 26-10-2006 for the aforesaid offences and he was sentenced to death. The petitioner, since the day of his arrest, continues to be in prison and was said to be confined to a solitary cell. The petitioner, then files an appeal against the order of conviction and sentence before this Court, in Criminal Appeal No.2408 of 2006. The opinion of the Division Bench was divergent. Therefore, the matter was referred to a third Hon’ble Judge, who concurred with the order passed by the concerned Court imposing death sentence upon the petitioner in terms of the order dated 18-02-2009. The petitioner, then prefers a criminal appeal before the Apex Court, in Criminal Appeal Nos. 285-286 of 2011, which also come to be dismissed on 01-02-2011.

4. Against the verdict of death sentence, the petitioner prefers a clemency petition before the Governor of Karnataka, as also a review petition seeking review of the order dated 01-02-2011 and later, a mercy petition before the President of India; all of them come to be rejected. Against the order passed by the President rejecting mercy petition, the petitioner prefers a writ petition in W.P.No.52 of 2011 before the Apex - 5 - NC:

2024. KHC:6876 WP No.23950 of 2023 Court. The Apex Court takes up all the writ petitions which were challenging verdicts of death sentence by the respective Courts and collectively disposed of all of them in S.L.P. (Crl.) 890 of 2022. The Apex Court in terms of its order dated 04-11- 2022 converts the death sentence to the sentence of life imprisonment, with a rider that the petitioner would undergo minimum sentence of 30 years and if any application is filed for remission, it would be considered only after he undergoes actual sentence of 30 years. It is averred in the petition that when the death sentence was imposed, the petitioner was detained in the solitary cell of the Central Prison at Hindalga, Belgaum and after the order of the Apex Court, he is now transferred to the Central Prison at Bangalore. The imprisonment certificate is produced along with the petition and the petitioner in terms of the said certificate has undergone 26 years of actual imprisonment.

5. When things stood thus, the petitioner applied for release on parole for 30 days on the ground that he has an ailing mother and wants to be with her during her last days. The application for such parole comes to be rejected by the - 6 - NC:

2024. KHC:6876 WP No.23950 of 2023 impugned endorsement on the score that the Apex Court has directed that no remission can be granted to the petitioner till he completes 30 years imprisonment. It is this that has driven the petitioner to this Court in the subject petition.

6. The learned senior counsel Sri Hashmath Pasha would contend that once the death sentence is converted to imprisonment for life, he becomes a convict like any other convict for the offences punishable under Section 302 or 376 of the IPC. The impugned order misquotes and misinterprets the order of the Apex Court. The Apex Court directed that the petitioner cannot claim remission till he completes 30 years which will not come in his way of seeking parole in justifiable circumstances. He would seek release of the petitioner on parole for a period of 30 days for the reason so rendered that his mother is ailing.

7. Per-contra, the learned Additional Advocate General Sri.C.S.Pradeep would vehemently refute the submissions to contend that every convict cannot be released on parole. Many factors will have to be considered before release of the convict - 7 - NC:

2024. KHC:6876 WP No.23950 of 2023 on parole. It may be a different circumstance that the petitioner is declared that he would not be entitled to remission and when that be so, he should not be released on parole. The learned Additional Advocate General would submit that if he is released on parole, his life itself would be at threat, apart from the fact that the petitioner does not deserve to be released on parole at any cost. He would submit that the petitioner is a dreaded criminal. He was a Police Constable and had committed series of rapes and murders. He is known as a serial killer. Therefore, he should not be released on parole on any ground whatsoever and more so, on the specious plea that the Apex Court has converted his death sentence to imprisonment for life. He would seek dismissal of the petition.

8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

9. The afore-narrated facts are all a matter of record. One Jayashri, wife of Maradi Subbaiah was found raped and murdered in her house on 28-02-1998 which led to registration - 8 - NC:

2024. KHC:6876 WP No.23950 of 2023 of a crime in Crime No.108 of 1998. In that connection, the petitioner comes to be arrested on 02-03-1998 and finally gets convicted for offences punishable under Sections 302, 376 and 392 of the IPC in S.C.No.725 of 1999. The death sentence so awarded to the petitioner was not executed as the petitioner challenged the same before this Court in the aforesaid criminal appeal. The matter then reaches the Apex Court in S.L.P.(Crl.) No.890 of 2022. The order of the Apex Court captures complete gamut of facts and passed the following order: “20. The act on part of the medical officer in checking the health and well-being of the appellant was obviously because of the mandate of Section 29 of the Prisons Act, 1894 which is to the following effect:— “29. Solitary confinement.-. No cell shall be used for solitary confinement unless it is furnished with the means of enabling the prisoner to communicate at any time with an officer of the prison, and every prisoner so confined in a cell for more than twenty-four hours, whether as a punishment or otherwise, shall be visited at least once a day by the Medical Officer or Medical Subordinate.” It must, therefore, be taken to be accepted that from 2006 till 2016, the appellant was kept in solitary confinement in “Andheri Block” and it was only thereafter, some relaxation in the rigours of the solitary confinement was effected and as the record shows, from 2016 onwards the conditions were gradually relaxed.-. 9 - NC:

2024. KHC:6876 WP No.23950 of 2023 21. The law on the point, as declared in Sunil Batra is very clear and as was held by this Court in Ajay Kumar Pal, segregation of a convict from the day when he was awarded death sentence till his mercy petition was disposed of, would be in violation of law laid down by this Court in Sunil Batra. In the instant case, the death sentence was awarded to the appellant in 2006 by the trial Court and the mercy petition was finally disposed of by the Hon'ble President on 12.5.2013, which means that the incarceration of the appellant in solitary confinement and segregation from 2006 to 2013 was without the sanction of law and completely opposed to the principles laid down by this Court in Sunil Batra. 22 . In Ajay Kumar Pal, on the issue of segregation of the convict in violation of the principles laid down in Sunil Batra, this Court observed:— “9. Furthermore, as submitted in the petition, the petitioner has all the while been in solitary confinement i.e. since the day he was awarded death sentence. While dealing with Section 30(2) of the Prisons Act, 1894, which postulates segregation of a person “under sentence of death” Krishna Iyer, J.

in Sunil Batra observed : (SCC p. 563, para 197-A) “197-A. (5) The crucial holding under Section 30(2) is that a person is not ‘under sentence of death’, even if the sessions court has sentenced him to death subject to confirmation by the High Court. He is not ‘under sentence of death’ even if the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court is likely to be or has been moved or is - 10 - NC:

2024. KHC:6876 WP No.23950 of 2023 pending. Even if this Court has awarded capital sentence, Section 30 does not cover him so long as his petition for mercy to the Governor and/or to the President permitted by the Constitution, Code and Prison Rules, has not been disposed. Of course, once rejected by the Governor and the President, and on further application there is no stay of execution by the authorities, he is ‘under sentence of death’, even if he goes on making further mercy petitions. During that interregnum he attracts the custodial segregation specified in Section 30(2), subject to the ameliorative meaning assigned to the provision. To be ‘under sentence of death’ means ‘to be under a finally executable death sentence’.” (emphasis in original) Speaking for the majority in the concurring judgment D.A. Desai, J.

stated thus : (Sunil Batra case5, SCC p. 572, para

223) “223. The expression ‘prisoner under sentence of death’ in the context of sub- section (2) of Section 30 can only mean the prisoner whose sentence of death has become final, conclusive and indefeasible which cannot be annulled or voided by any judicial or constitutional procedure. In other words, it must be a sentence which the authority charged with the duty to execute and carry out must proceed to carry out without intervention from any outside authority.

10. In the light of the enunciation of law by this Court, the petitioner could never have been “segregated” till his mercy petition was disposed of. It is only after such - 11 - NC:

2024. KHC:6876 WP No.23950 of 2023 disposal that he could be said to be under a finally executable death sentence. The law laid down by this Court was not adhered to at all while confining the petitioner in solitary confinement right since the order of death sentence by the first court. In our view, this is complete transgression of the right under Article 21 of the Constitution causing incalculable harm to the petitioner.

11. The combined effect of the inordinate delay in disposal of mercy petition and the solitary confinement for such a long period, in our considered view has caused deprivation of the most cherished right. A case is definitely made out under Article 32 of the Constitution of India and this Court deems it proper to reach out and grant solace to the petitioner for the ends of justice. We, therefore, commute the sentence and substitute the sentence of life imprisonment in place of death sentence awarded to the petitioner. The writ petition thus stands allowed.

23. In its jurisdiction under Article 32 of the Constitution of India, this Court had thus deemed it proper to reach out and grant solace to the petitioner on both grounds, namely, delay in disposal of mercy petition and solitary confinement for a long period. The period of solitary confinement in Ajay Kumar Pal in violation of the law laid down in Sunil Batra was from 2007 till 2014, i.e., for nearly seven years. In the instant case, the period of solitary confinement is for about ten years and has two elements : one, from 2006 till the disposal of mercy petition in 2013; and secondly from the date of such disposal till - 12 - NC:

2024. KHC:6876 WP No.23950 of 2023 2016. The question then arises : whether on this ground alone, the appellant is entitled to have the death sentence commuted?.

24. In Shatrughan Chauhan, solitary confinement was accepted and recognised as one of the grounds on the basis of which death sentence can be commuted. However, in the batch of matters under consideration in Shatrughan Chauhan, no benefit was granted to any of the convicts on this ground. Paragraph 88 onwards, the effect of the law laid down by this Court in Sunil Batra and other cases was noticed and it was concluded as under:— “90. It was, therefore, held in Sunil Batra case, that the solitary confinement, even if mollified and modified marginally, is not sanctioned by Section 30 of the Prisons Act for prisoners “under sentence of death”. The crucial holding under Section 30(2) is that a person is not “under sentence of death”, even if the Sessions Court has sentenced him to death subject to confirmation by the High Court. He is not “under sentence of death” even if the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court is likely to be or has been moved or is pending. Even if this Court has awarded capital sentence, it was held that Section 30 does not cover him so long as his petition for mercy to the Governor and/or to the President permitted by the Constitution, has not been disposed of. Of course, once rejected by the Governor and the President, and on further application, there is no stay of execution by - 13 - NC:

2024. KHC:6876 WP No.23950 of 2023 the authorities, the person is under sentence of death. During that interregnum, he attracts the custodial segregation specified in Section 30(2), subject to the ameliorative meaning assigned to the provision. To be “under sentence of death” means “to be under a finally executable death sentence”.

91. Even in Triveniben v. State of Gujarat, this Court observed that keeping a prisoner in solitary confinement is contrary to the ruling in Sunil Batra5 and would amount to inflicting “additional and separate” punishment not authorised by law. It is completely unfortunate that despite enduring pronouncement on judicial side, the actual implementation of the provisions is far from reality. We take this occasion to urge to the Jail Authorities to comprehend and implement the actual intent of the verdict in Sunil Batra v. Delhi Admn.

25. The benefit of commutation was, however, granted in Ajay Kumar Pal on the ground that the solitary confinement was against the principles laid down in Sunil Batra and also on the ground of delay. Having considered the entirety of matter, in our view, the impact of solitary confinement were obviously evident in the instant case, as would be clear from the letter given by the medical professional on 6.11.2011 and the communication emanating from the jail on 8.11.2011. The incarceration in solitary confinement thus did show ill effects on the well- being of the appellant. In the backdrop of these features of the matter, in our view, the appellant is entitled to have the death sentence imposed - 14 - NC:

2024. KHC:6876 WP No.23950 of 2023 upon him to be commuted to death sentence to life.

26. At this stage, we may refer to a recent decision by a three-Judge Bench in Mohd. Mannan alias Abdul Mannan v. State of Bihar, where while accepting the review petition, the sentence of death was commuted to imprisonment for life. However, it was observed in paragraphs 87 and 88 as under:— “87. Even though life imprisonment means imprisonment for entire life, convicts are often granted reprieve and/or remission of sentence after imprisonment of not less than 14 years. In this case, considering the heinous, revolting, abhorrent and despicable nature of the crime committed by the petitioner, we feel that the petitioner should undergo imprisonment for life, till his natural death and no remission of sentence be granted to him.

88. We, therefore, commute the death sentence imposed on the petitioner to life imprisonment, till his natural death, without reprieve or remission.

27. Considering the entirety of facts and circumstances on record, in our view, ends of justice would be met if while commuting the death sentence awarded to the appellant, we impose upon him sentence of life imprisonment with a rider that he shall undergo minimum sentence of 30 years and if any application for remission is moved on his behalf, the same shall be considered on its own merits only after he has undergone actual sentence of 30 years. If no remission is granted, it goes without saying that as laid down by this Court in Gopal Vinayak Godse v. State of Maharashtra, the sentence of imprisonment for life shall mean till the remainder of his life.-. 15 - NC:

2024. KHC:6876 WP No.23950 of 2023 28. The appeal is allowed accordingly.

29. Before we part, we must observe that the instruction quoted in paragraph 3(f) of this Judgment leads to an incongruous situation. According to it, the mercy petition must be filed within seven days of the disposal of the appeal or dismissal of special leave petition. A convicted accused is entitled to file a review petition within thirty days. An anomalous situation, like the present one, may arise where even before the review is filed, the mercy petition is required to be filed. The concerned instruction requires suitable modification so as to enable the convicted accused to file mercy petition after exhaustion of remedies in Court of law.” (Emphasis supplied) The Apex Court allows the appeal commuting the death sentence awarded to the petitioner and imposed upon him sentence of life imprisonment, with a rider that he shall undergo minimum sentence of 30 years and if an application for remission is moved, the same shall be considered on its merits only after he has undergone actual sentence of 30 years. The Apex Court further observes that if no remission is granted, it would go without saying that the sentence of imprisonment for life would mean imprisonment till the remainder of his life. With these observations the Apex Court - 16 - NC:

2024. KHC:6876 WP No.23950 of 2023 concludes the proceedings of the petitioner. Thus, the petitioner comes out of solitary confinement in Hindalga prison and is brought as a convict to the Central Prison at Bengaluru. Therefore, the imprisonment certificate is issued by the Chief Superintendent at Central Prison, Bengaluru.

10. The petitioner then applies for grant of parole and that comes to be rejected by the impugned endorsement observing that the Apex Court has directed that remission can be considered only after he actually completes 30 years imprisonment and if no remission is granted it would mean that for the remainder of his life he would be undergoing imprisonment for life.

11. The issue now is, whether the petitioner can be released on grant of parole, in the teeth of facts afore- mentioned and vehement opposition by the State. It is germane to notice the law as laid down by the Apex Court concerning grant/rejection of parole in appropriate cases. The - 17 - NC:

2024. KHC:6876 WP No.23950 of 2023 Apex Court in the case of ASFAQ v. STATE OF RAJASTHAN1 has held as follows: “…. …. ….

17. From the aforesaid discussion, it follows that amongst the various grounds on which parole can be granted, the most important ground, which stands out, is that a prisoner should be allowed to maintain family and social ties. For this purpose, he has to come out for some time so that he is able to maintain his family and social contact. This reason finds justification in one of the objectives behind sentence and punishment, namely, reformation of the convict. The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, albeit for (sic short) periods. These gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the good of the society and, therefore, are in public interest.

18. The provisions of parole and furlough, thus, provide for a humanistic approach towards those lodged in jails. Main purpose of such provisions is to afford to them an opportunity to solve their personal and family problems and to enable them to maintain their links with society. Even citizens of this country have a vested interest in preparing offenders for successful re-entry into society. Those who leave prison without strong networks of support, without employment prospects, without a 1 (2017) 15 SCC55- 18 - NC:

2024. KHC:6876 WP No.23950 of 2023 fundamental knowledge of the communities to which they will return, and without resources, stand a significantly higher chance of failure. When offenders revert to criminal activity upon release, they frequently do so because they lack hope of merging into society as accepted citizens. Furloughs or parole can help prepare offenders for success.

19. Having noted the aforesaid public purpose in granting parole or furlough, ingrained in the reformation theory of sentencing, other competing public interest has also to be kept in mind while deciding as to whether in a particular case parole or furlough is to be granted or not. This public interest also demands that those who are habitual offenders and may have the tendency to commit the crime again after their release on parole or have the tendency to become a threat to the law and order of the society, should not be released on parole. This aspect takes care of other objectives of sentencing, namely, deterrence and prevention. This side of the coin is the experience that great number of crimes are committed by the offenders who have been put back in the street after conviction. Therefore, while deciding as to whether a particular prisoner deserves to be released on parole or not, the aforesaid aspects have also to be kept in mind. To put it tersely, the authorities are supposed to address the question as to whether the convict is such a person who has the tendency to commit such a crime or he is showing tendency to reform himself to become a good citizen.

20. Thus, not all people in prison are appropriate for grant of furlough or parole. Obviously, society must isolate those who show patterns of preying upon victims. Yet administrators ought to encourage those offenders who demonstrate a commitment to reconcile with society and whose behaviour shows that they aspire to live as law-abiding citizens. Thus, parole programme should be used as a tool to shape such adjustments.-. 19 - NC:

2024. KHC:6876 WP No.23950 of 2023 21. To sum up, in introducing penal reforms, the State that runs the administration on behalf of the society and for the benefit of the society at large cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty. It is for this reason that in introducing such reforms, the authorities cannot be oblivious of the obligation to the society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty (by a court) of having perpetrated a criminal act. One of the discernible purposes of imposing the penalty of imprisonment is to render the society immune from the criminal for a specified period. It is, therefore, understandable that while meting out humane treatment to the convicts, care has to be taken to ensure that kindness to the convicts does not result in cruelty to the society. Naturally enough, the authorities would be anxious to ensure that the convict who is released on furlough does not seize the opportunity to commit another crime when he is at large for the time being under the furlough leave granted to him by way of a measure of penal reform. ... … … 29. We have gone through the reports of the aforesaid authorities. Reasons given in these reports are to the effect that if the appellant is released on parole, it may lead to untoward incidents in the society or even among unsocial elements and may have adverse effect on the young generation as well. It is also mentioned that there is a possibility that the appellant may threaten those who had deposed against him and may even physically harm them. It is recorded that his release on parole may adversely affect peace in the society. Further, having regard to the nature of the crime he had committed, there may even be a threat to his life as well because of the reason that there is a feeling of anger and annoyance in the society against him and, therefore, possibility of a member of public physically harming the appellant cannot be ruled out. There is even a danger to the appellant's life as well.-. 20 - NC:

2024. KHC:6876 WP No.23950 of 2023 30. Having regard to the aforesaid reports, it cannot be said that the authorities have not taken into account relevant considerations while rejecting the request of parole made by the appellant. We, therefore, are of the opinion that it is not a fit case for grant of parole to the appellant particularly at this stage.

31. The appellant is a life convict. Therefore, he is supposed to remain in jail during his life unless remission is given to him. In such a situation, the appellant can, after some time, renew his request for parole when the present atmosphere prevailing outside undergoes a change for better. Otherwise, his conduct in the jail has been reported as satisfactory. When a request for parole is made after some time, which of course should not be in immediate future, the same can be considered again in the light of the principles laid down by this Court in this judgment.” (Emphasis supplied) The Apex Court holds that, while granting parole or furlough ingrained in the reformation theory of sentencing, other competing public interest has also to be kept in mind, while deciding as to whether in a particular case parole is to be granted or not. The public interest demands that, those who are habitual offenders and may have the tendency to commit the crime again on their parole, or have the tendency to become a threat to the law and order of the society, should not be released on parole. The Apex Court observes on receiving - 21 - NC:

2024. KHC:6876 WP No.23950 of 2023 the report from the prison that there is a danger to the appellant’s life therein and therefore denies parole.

12. Following the judgment of the Apex Court in the case of ASFAQ (supra) the High Court of Bombay in the case of MOHAMMAD RAFIQ USMAN SHAIKH v. STATE OF MAHARASHTRA2 –has held as follows: “….. ….. …..

7. In paragraph 19 of the said decision, the Supreme Court stated that while granting parole, it has to be considered whether the prisoner is a hardened criminal and a threat to society. In this connection, the learned A.P.P. pointed out that the petitioner is involved not only in the bomb-blast case but also in many other cases. In paragraph 19 in the case of Asfaq (supra), it is observed that another vital aspect that needs to be discussed is as to whether there can be any presumption that a person who is convicted of serious or heinous crime is to be, ipso facto, treated as a hardened criminal. Hardened criminal would be a person for whom it has become a habit or way of life and such a person would necessarily tend to commit crimes again and again. Obviously, if a person has committed a serious offence for which he is convicted but at the same time it is also found that it is the only crime he has committed, he cannot be categorized as a hardened criminal. In his case, consideration should be as to whether he is showing the signs to reform himself and become a good citizen or there are circumstances which would indicate that he has a tendency to commit the crime again or that he would be a threat to the society. The present petitioner is not involved in just one offence, but he is involved in more than 2 2017 SCC OnLine Bom 9735 - 22 - NC:

2024. KHC:6876 WP No.23950 of 2023 one offence. Besides the bomb-blast case, he is involved in CR2032009 of Tardeo Police Station and two other cases under Local Act. Moreover, in jail, the conduct of the petitioner is also not satisfactory as he is not doing the work allotted to him in the jail and he is also not following the rules and regulations. Report of the Jailor to the said effect is taken on record and marked “X-1” for identification.

8. The Supreme Court in the case of Asfaq (supra), has made a reference to the police report wherein it is stated that if the petitioner is released on parole, it may lead to untoward incidents in the society. In the present case also, the police report dated 11/12/2017 states that if the petitioner is released on parole, law and order situation will arise. The said police report and other papers are taken on record and marked “X-2” collectively for identification. We also cannot be unmindful of the fact that in the bomb-blast case in which the petitioner has been convicted 188 people died and 828 people were injured.

9. As stated earlier, the petitioner has relied on the medical certificate issued by Dr. Neena S. Nichlani, who is attached to Universal Hospital & Universal Medical Institute at Mumbra, Thane. It is pertinent to note that the sister of wife of petitioner is working in the very same hospital. Thus, the sister is very much available to take care of the wife of petitioner in case she is required to undergo surgery. Thereupon, the learned Counsel for the petitioner submitted that it is a private hospital and the wife of the petitioner may not be able to afford treatment in the said Shridhar Sutar hospital. Assuming this is so, it is seen that the sister of the wife of the petitioner is residing in the same area, as the wife of the petitioner. Therefore, the sister of wife of the petitioner can very well take care of the wife of the petitioner. In view of all the above facts, the petition is dismissed. Rule discharged.” (Emphasis supplied) - 23 - NC:

2024. KHC:6876 WP No.23950 of 2023 Further, the High Court of Delhi in the case of RAVI KAPOOR v. STATE-NCT OF DELHI3 , has held as follows: “…. …. ….

13. In case of Asfaq v. State of Rajasthan, (2017) 15 SCC55 the Hon'ble Apex Court had emphasized the need to maintain such a balance and had also underscored the importance of ensuring that habitual offenders who may demonstrate a propensity to commit offences after being released on parole or those who pose a potential threat to the law and order of society, may not be released on parole. It was also expressed that kindness towards convicts must not result in cruelty towards the society. In this regard, it is crucial to take note of the observations of the Hon'ble Apex Court, which read has under: “19. Having noted the aforesaid public purpose in granting parole or furlough, ingrained in the reformation theory of sentencing, other competing public interest has also to be kept in mind while deciding as to whether in a particular case parole or furlough is to be granted or not. This public interest also demands that those who are habitual offenders and may have the tendency to commit the crime again after their release on parole or have the tendency to become threat to the law and order of the society, should not be released on parole. This aspect takes care of other objectives of sentencing, namely, deterrence and prevention. This side of the coin is the experience that great number of crimes are committed by the offenders who have been put back in the street after conviction. Therefore, while deciding as to whether a particular prisoner deserves to be released on parole or not, the aforesaid aspects have also to be kept in mind. To put it tersely, the authorities are supposed to address the question as to whether the convict is such a person who has the tendency to commit such a crime or he is showing tendency to reform himself to become a good citizen. 3 2024 SCC OnLine Del 203 - 24 - NC:

2024. KHC:6876 WP No.23950 of 2023 20. Thus, not all people in prison are appropriate for grant of furlough or parole. Obviously, society must isolate those who show patterns of preying upon victims. Yet administrators ought to encourage those offenders who demonstrate a commitment to reconcile with society and whose behaviour shows that aspire to live as law-abiding citizens. Thus, parole program should be used as a tool to shape such adjustments.

21. To sum up, in introducing penal reforms, the State that runs the administration on behalf of the society and for the benefit of the society at large cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty. It is for this reason that in introducing such reforms, the authorities cannot be oblivious of the obligation to the society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty (by a Court) of having perpetrated a criminal act. One of the discernible purposes of imposing the penalty of imprisonment is to render the society immune from the criminal for a specified period. It is, therefore, understandable that while meting out humane treatment to the convicts, care has to be taken to ensure that kindness to the convicts does not result in cruelty to the society. Naturally enough, the authorities would be anxious to ensure that the convict who is released on furlough does not seize the opportunity to commit another crime when he is at large for the time-being under the furlough leave granted to him by way of a measure of penal reform.

22. Another vital aspect that needs to be discussed is as to whether there can be any presumption that a person who is convicted of serious or heinous crime is to be, ipso facto, treated as a hardened criminal. Hardened criminal would be a person for whom it has become a habit or way of life and such a person would necessarily tend to commit crimes again and again. Obviously, if a person has committed a serious offence for which he is convicted, but at the same - 25 - NC:

2024. KHC:6876 WP No.23950 of 2023 time it is also found that it is the only crime he has committed, he cannot be categorised as a hardened criminal. In his case consideration should be as to whether he is showing the signs to reform himself and become a good citizen or there are circumstances which would indicate that he has a tendency to commit the crime again or that he would be a threat to the society. Mere nature of the offence committed by him should not be a factor to deny the parole outrightly. Wherever a person convicted has suffered incarceration for a long time, he can be granted temporary parole, irrespective of the nature of offence for which he was sentenced. We may hasten to put a rider here, viz. in those cases where a person has been convicted for committing a serious office, the competent authority, while examining such cases, can be well advised to have stricter standards in mind while judging their cases on the parameters of good conduct, habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquillity etc…

14. The parole in this case has not been sought on grounds of any exigency in the family of petitioner but for the purpose of maintaining social and family ties. Though one of the grounds mentioned in the petition for seeking parole also relates to undergoing a knee surgery, neither any document or material in support of same has been placed on record, nor any arguments in this regard were addressed before this Court.

15. When this Court examines the factual matrix of the present case, on the touchstone of the aforesaid principles laid down and observations made by the Hon'ble Apex Court, this Court notes that the petitioner herein is a habitual offender, who has been involved in about 20 criminal cases between the period 2002 to 2010, and has been convicted in two cases involving commission of offences such as murder and robbery, and the most recent conviction being in October, 2023. Though his conduct inside jail remains satisfactory for last few years, the overall jail conduct has been unsatisfactory owing to as - 26 - NC:

2024. KHC:6876 WP No.23950 of 2023 many as 41 major punishments being awarded to him.

16. Taking into account the criminal history of the petitioner, the facts of the case in which the petitioner has been convicted and the gravity of the offence committed by him, his overall conduct inside the jail premises, this Court is not inclined to grant parole to the petitioner, at this stage.” (Emphasis supplied) 13. The report of the prison authorities on the application filed by the present petitioner seeking grant of parole dated 08.12.2023 reads as follows: “ gÀªÀjUÉ ªÀÄÄRå C¢üÃPÀëPÀgÀÄ PÉÃAzÀæ PÁgÁUÀÈºÀ, ¥ÀgÀ¥Àà£À CUÀæºÁgÀ – ¨ÉAUÀ¼ÀÆgÀÄ 560 100 ªÀiÁ£ÀågÉ, «µÀAiÀÄ: ¥ÀgÀ¥Àà£À CUÀæºÁgÀ PÉÃAzÀæ PÁgÁUÀÈºÀzÀ ²PÁë §A¢ ¸ÀASÉå 13627. ©.J GªÉÄÃ±À vÀAzÉ CdÓ¥Àà gÉrØ gÀªÀgÀ PÀÄlÄA§zÀ §UÉÎ ªÀiÁ»wAiÀÄ£ÀÄß ¸À°èPÉÆ¼ÀÄîwÛgÀÄªÀ §UÉÎ. G¯ÉèÃR: PÉÃAzÀæ PÁgÁUÀÈºÀ, ¥ÀgÀ¥Àà£À CUÀæºÁgÀ J¯ÉPÁÖç¤Pï ¹n CAZÉ ¨ÉAUÀ¼ÀÆgÀÄ 560 100 gÀªÀgÀ F ªÉÄÃ¯ï ¥ÀvÀæ ¸ÀASÉå: PÉÃPÁ¨ÉA/eÉ3/13040/2023 ¢£ÁAPÀ:

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2024. KHC:6876 WP No.23950 of 2023 UË// PÀ£ÁðlPÀ GZÀÑ £ÁåAiÀiÁ®AiÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ gÀªÀjUÉ ¢£ÁAPÀ:

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vÀAzÉ CdÓ¥ÀàgÉrØ gÀªÀgÀ£ÀÄß ¥ÉgÉÆÃ¯ï ªÉÄÃ¯É §AzÀ°è UÁæªÀÄzÀ°è ºÀ¼ÉÃ zÉéÃµÀUÀ½AzÀ UÀ¯ÁmÉUÀ¼ÀÄ DUÀÄªÀ ¸ÁzsÀåvÉ EgÀÄvÀÛzÉ.

3. GªÉÄÃ±ï gÀªÀgÀ vÁ¬Ä UËgÀªÀÄä gÀªÀgÀ DgÉÊPÉUÉ ºÁUÀÄ ªÀÄ£ÉAiÀÄ j¥ÉÃj ªÀiÁr¸À®Ä ªÀÄ£ÉAiÀÄ°è CªÀgÀ vÁ¬ÄAiÀÄ eÉÆvÉAiÀÄ°è E§âgÀÄ UÀAqÀÄ ªÀÄPÀÌ¼ÀÄ EgÀÄvÁÛgÉ.

gÀªÀgÀ fÃªÀPÉÌ C¥ÁAiÀÄ EgÀÄvÀÛzÉ. vÀªÀÄä «zÉsÃAiÀÄ, ¸À»/- Police Sub-Inspector Imangala Police Station Chitradurga.”

(Emphasis added)

The report indicates inter alia that in the event the petitioner is released on parole, the past enmity against the petitioner can become a threat to his life. The report supra is also indicative of the fact that, if the petitioner would be released on parole, reminiscence of old enmity could emerge.-. 29 - NC:

2024. KHC:6876 WP No.23950 of 2023 14. The learned senior counsel for the petitioner projects that his ailing mother has to be taken care of and therefore, the petitioner should be released on parole, to be with his mother.

15. The submission runs counter to the contents of the report. The petitioner has two brothers who would take care of the mother or even the repair of the house, which is said to be in a dilapidated condition. Both the reasons projected by the petitioner suffer from want of tenability. It is not that in every case, one should be granted parole for the asking. Both sides of the coin will have to be considered, one, the necessity for grant of parole ingrained in the reformation theory of sentencing, the other, competing public interest. Particularly in cases where the convicts are undergoing life imprisonment, the other side of the coin cannot be ignored.

16. Therefore, looking at the reasons rendered by the Apex Court in the case of ASFAQ as followed by other High Courts, it cannot be said that the petitioner is now a convict as any other convict and should be released on parole. Though 30 years rider would not be ipso facto applicable for consideration - 30 - NC:

2024. KHC:6876 WP No.23950 of 2023 of application seeking parole, the same would not mean that he becomes entitled to grant of parole, as the circumstances narrated in the case of ASFAQ by the Apex Court would fit into fact situation on all its fours. Therefore, I decline to accede to the request of the petitioner for grant of parole.

17. Accordingly, the petition stands rejected. Sd/- JUDGE bkp CT:SS

Court	Karnataka High Court
Decided On	Feb-16-2024
Case Number	WP 23950/2023
Judge	M.NAGAPRASANNA
Appellant	Mr B A Umesh
Respondent	State Of Karnataka

Mr B A Umesh Vs. State Of Karnataka - Court Judgment