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Date or Order: 19th January 2010 ! RAJENDER @ RAJESH @ RAJU ..... Petitioner
Through: Mr. Anish Dhingra, Adv.
Through: Mr. Pawan Sharma, Standing Counsel with Mr. Praveen Nagar, Adv.
JUDGMENT
1. Whether the Reporters of local papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in the Digest? No: V.K. JAIN, J. (Oral)
1. This is a petition under Article 226/227 of the Constitution challenging the order of the respondent dated 9th December, 2009 whereby the request of the petitioner for grant of parole was rejected on the following grounds:- “1 Adverse police report that he may jump the parole.
2. The petitioner was convicted under Sections 364/302/201/120-B of IPC vide judgment dated 21st December, 2006 and was sentenced vide Order on Sentence dated 22nd December, 2006. The appeal filed by him was dismissed by this Court vide judgment dated 27th August, 2009. The petitioner, vide his application sent to the Government on 14th September, 2009, sought grant of parole on the ground that he wanted to file a Special Petition before the Hon’ble Supreme Court against the judgment of this Court.
3. Admittedly, co-accused of the appellant has been granted parole by the Government for the purpose of enabling him to file a Special Leave Petition before the Hon’ble Supreme Court. In the absence of facts and circumstances distinguishing to case of the petitioner from that of his co-accused, there can be no justification for denying parole to the petitioner while granting it to his coaccused, when both of them had sought parole on the same ground. No such distinguishing features has been shown to exist.
4. Though primarily it is the function of the executive to consider a request for grant of parole and take appropriate decision on it, it is open to this Court in exercise of its writ jurisdiction under Article 226 of the Constitution to set aside an order refusing parole, if it is shown that the order passed by the Government is based upon irrelevant considerations or is otherwise unsustainable in law.
5. The appeal filed by the petitioner having been dismissed by this Court Special Leave Petition before the Hon’ble Supreme Court is his last resort and the only remedy available to him in law to prove his innocence. Therefore, his anxiety to engage the best lawyer he can and to brief him adequately to present his case before the Hon’ble Supreme Court cannot be disputed and needs to be appreciated and recognized by the Government. In fact I presume that recognizing the genuineness of the ground on which parole has been sought, the Government has decided to grant parole to his co-accused.
6. The Status Report filed by the respondent does not disclose what was the material before the respondent, from which it be inferred that the petitioner was likely to jump parole. Mere reference to Police Report, without informing the Court as to on what grounds such an apprehension was expressed by the police is not sufficient to deny parole, particularly when the co-accused has already been granted that benefit. No doubt, there will always be a possibility of a convict jumping to parole. But, then, this is also a possibility in every case not only of grant of parole but, also of grant of bail. Unless some material is placed before the Court, which would justify drawing such an inference, it is not open to the Court to deny parole merely on the ground of possibility of the convict jumping the parole. If this is done, it will not be possible to grant parole, or even bail, in any case.
7. For the reasons given in the above mentioned paragraphs the order passed by the Government declining the parole to the petitioner cannot be sustained and is hereby quashed. The petitioner is directed to be released on bail for one month from date of his release, subject to the following conditions:-