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CRL.REF. 5/2019
HIGH COURT OF DELHI
CRL.REF. 5/2019
COURT ON ITS OWN MOTION ..... Petitioner
Through:
HIGH COURT OF DELHI
CRL.REF. 5/2019
COURT ON ITS OWN MOTION ..... Petitioner
Through:
VERSUS
STATE ..... Respondent
Through: Mr. Rahul Mehra, Standing Counsel Criminal with Mr. Chaitanya Gosain, Advocate with Inspector Ritesh, SI
Dheeraj, Crime Branch, Mr. Tariq Salam, Superintendent of Jail, Mr. Prashant Kumar Verma, OIC Legal, PHQ and
Mr.A.C.R. Meena, Assistant Superintendent.
Mr. Chetan Sharma Senior Advocate with Mr. Mayank Tripathi, Advocate
Through: Mr. Rahul Mehra, Standing Counsel Criminal with Mr. Chaitanya Gosain, Advocate with Inspector Ritesh, SI
Dheeraj, Crime Branch, Mr. Tariq Salam, Superintendent of Jail, Mr. Prashant Kumar Verma, OIC Legal, PHQ and
Mr.A.C.R. Meena, Assistant Superintendent.
Mr. Chetan Sharma Senior Advocate with Mr. Mayank Tripathi, Advocate
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL O R D E R
19.12.2019 Present Criminal Reference under Section 395(2) Cr.P.C., has been received from Special Judge, (PC Act) (ACB-01), Rouse Avenue District
Courts, Delhi on the following issues: -
“Q.1 If an accused is in custody in more than one case and the concerned trial courts are more than one, then whether the accused is required to obtain custody parole from each and every concerned court or the accused can move to any one court of his choice for seeking custody parole?
Q.2 Maximum duration in which the custody parole can be granted to an under-trail?
2019:DHC:7112-DB Q.3 In case custody parole application is moved to only one of the concerned court then whether any permission is required from the other concerned courts before sending the under-trial on custody parole?
Q.4 In case, permission is not required from the other concerned courts, then whether the
Jail Superintendent or accused should give intimation to the other concerned courts regarding sending the under-trial on the custody parole?”
The relevant facts of the present reference are that the accused
Sukesh @ Sukash Chandrashekhar is in judicial custody in case FIR
No.186/2017 registered at Police Station Crime Branch and FIR
No.166/2017 registered at Police Station Crime Branch both pending at
Tis Hazari Courts and also in FIR No.56/2017 registered at Police Station
Crime Branch pending at Rouse Avenue District Court.
The accused moved an application seeking custody parole in case
FIR No. 166/2017 before learned Additional Sessions Judge-04, West
District, Tis Hazari Courts, Delhi which was allowed vide order dated
05.07.2019. Since then the accused Sukesh @ Sukash Chandrashekhar is on custody parole which has been extended from time to time i.e. on
17.08.2019, 30.08.2019, 20.09.2019, 10.10.2019, 02.11.2019 and lastly on 22.11.2019 till 14.12.2019.
The custody parole granted to the accused vide last order dated
22.11.2019, came to an end on 14.12.2019. The accused moved a Bail
HIGH COURT OF DELHI of custody parole, which was dismissed as withdrawn on 13.12.2019.
The accused was facing trial in case FIR No. 186/2017 before the court of Ms. Kiran Bansal, Special Judge (PC Act) (ACB-01), Rouse
Avenue District Courts, Delhi and was not produced before her on the date fixed. Ms. Kiran Bansal, learned Special Judge (PC Act) (ACB-01) through present criminal reference, has submitted that the accused was granted custody parole by the order of learned ASJ-04, West District, Tis
Hazari but the accused failed to seek permission from her Court despite a case being pending trial before her Court and proceeded on custody parole. She further added that no such information was received either from the accused or from the concerned Jail Superintendent.
She further brought on record that the custody parole of the accused had been extended from time to time till 14.12.2019 and despite directions to the Jail Superintendent to produce the accused before her court, the Jail Superintendent failed to produce the accused before her
Court.
On inquiry, it had been explained by the Jail Superintendent that the learned Additional Sessions Judge-04, West District, Tihar Jail vide order dated 29.11.2019 had directed that the Jail Superintendent should not produce the accused Sukesh @ Sukash Chandrashekhar anywhere till further directions and to ensure that the purpose of custody parole granted is not defeated.
Being aggrieved by the conduct of the DCP 3rd Battalion for not producing the accused before her Court, she forwarded the present reference which is under consideration.
At the outset, we deem it appropriate to reproduce Rule 1209 of the
Delhi Prison Rules 2018, which reads as under :
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL O R D E R
19.12.2019 Present Criminal Reference under Section 395(2) Cr.P.C., has been received from Special Judge, (PC Act) (ACB-01), Rouse Avenue District
Courts, Delhi on the following issues: -
“Q.1 If an accused is in custody in more than one case and the concerned trial courts are more than one, then whether the accused is required to obtain custody parole from each and every concerned court or the accused can move to any one court of his choice for seeking custody parole?
Q.2 Maximum duration in which the custody parole can be granted to an under-trail?
2019:DHC:7112-DB Q.3 In case custody parole application is moved to only one of the concerned court then whether any permission is required from the other concerned courts before sending the under-trial on custody parole?
Q.4 In case, permission is not required from the other concerned courts, then whether the
Jail Superintendent or accused should give intimation to the other concerned courts regarding sending the under-trial on the custody parole?”
The relevant facts of the present reference are that the accused
Sukesh @ Sukash Chandrashekhar is in judicial custody in case FIR
No.186/2017 registered at Police Station Crime Branch and FIR
No.166/2017 registered at Police Station Crime Branch both pending at
Tis Hazari Courts and also in FIR No.56/2017 registered at Police Station
Crime Branch pending at Rouse Avenue District Court.
The accused moved an application seeking custody parole in case
FIR No. 166/2017 before learned Additional Sessions Judge-04, West
District, Tis Hazari Courts, Delhi which was allowed vide order dated
05.07.2019. Since then the accused Sukesh @ Sukash Chandrashekhar is on custody parole which has been extended from time to time i.e. on
17.08.2019, 30.08.2019, 20.09.2019, 10.10.2019, 02.11.2019 and lastly on 22.11.2019 till 14.12.2019.
The custody parole granted to the accused vide last order dated
22.11.2019, came to an end on 14.12.2019. The accused moved a Bail
HIGH COURT OF DELHI of custody parole, which was dismissed as withdrawn on 13.12.2019.
The accused was facing trial in case FIR No. 186/2017 before the court of Ms. Kiran Bansal, Special Judge (PC Act) (ACB-01), Rouse
Avenue District Courts, Delhi and was not produced before her on the date fixed. Ms. Kiran Bansal, learned Special Judge (PC Act) (ACB-01) through present criminal reference, has submitted that the accused was granted custody parole by the order of learned ASJ-04, West District, Tis
Hazari but the accused failed to seek permission from her Court despite a case being pending trial before her Court and proceeded on custody parole. She further added that no such information was received either from the accused or from the concerned Jail Superintendent.
She further brought on record that the custody parole of the accused had been extended from time to time till 14.12.2019 and despite directions to the Jail Superintendent to produce the accused before her court, the Jail Superintendent failed to produce the accused before her
Court.
On inquiry, it had been explained by the Jail Superintendent that the learned Additional Sessions Judge-04, West District, Tihar Jail vide order dated 29.11.2019 had directed that the Jail Superintendent should not produce the accused Sukesh @ Sukash Chandrashekhar anywhere till further directions and to ensure that the purpose of custody parole granted is not defeated.
Being aggrieved by the conduct of the DCP 3rd Battalion for not producing the accused before her Court, she forwarded the present reference which is under consideration.
At the outset, we deem it appropriate to reproduce Rule 1209 of the
Delhi Prison Rules 2018, which reads as under :
“1209. Under-trial prisoners are not eligible for regular parole and furlough, however, may be released on custody Parole, that too by the order of the concerned trial court. It is clarified that where an appeal of a convict against conviction is pending before the High Court, regular parole will not be granted since the convict can seek appropriate orders from the High Court.”
At the same time, Rule 1203 of the Delhi Prison Rules, 2018 deals with the custody parole, which reads as under:-
“1203. Custody Parole” may be granted to the
convict by an order in writing, issued by the
Superintendent Prison and to the under trial
prisoners by the trial court concerned, for a period
of not more than six hours, excluding the time
taken to reach the destination and return to Prison,
in the following eventualities:
i. Death of a family member; ii. Marriage of a family member; iii. Serious illness of a family member or iv. Any other emergency circumstances with the approval of DIG (Range) of prisons. Note: The prisoners who have been convicted by the trial court may avail custody parole from prison authorities though their appeals are pending before the higher courts.”
Further, in Election Commission of India vs Mukhtar Ansari, reported in 2017 SCC online Del 7199, it has been held that custody parole cannot be a substitute for grant of bail and cannot be extended for long periods or for daily visits. Germane portion of the
JUDGMENT
is extracted below:
“32. After a person is arrested and produced before the Court, thereafter he is in the custody of Court i.e. 'custodia legis'. Even the Superintendent, Jail or the Police Officer taking to and for the prisoner to the Court holds the custody of the prisoner on behalf of the Court. By the impugned order no bail has been granted to the respondent No.1 and the respondent No.1 was directed to be in the custody of the Court to be held by the officers of State as directed. The custody of the prisoner away from the prison or the Court to any other place cannot be shifted except for a short period and only to meet emergent situations like death in the family, or to go to hospital or marriage of a child or sibling etc. The same cannot extend for long periods and for daily visits and cannot be substitute of a grant of bail. By passing the impugned order, the learned Additional Sessions Judge without granting temporary bail has passed an order as effective as that.”
As per Rule 1209 of the Delhi Prison Rules, 2018, an undertrial can be granted custody parole by the concerned trial court. However, if the undertrial is in custody in more than one cases and there are more than one concerned trial courts, then Rule 1209 is silent as to whether the undertrial should obtain custody parole from each and every concerned court or an order from one court would suffice.
As per Rule 1203, it is clear that an undertrial prisoner can be granted custody parole by the trial court concerned in case of an exigency for a period of not more than 6 hours excluding the time taken to reach the destination and return to the prison in the eventualities as mentioned in the rule.
It cannot be lost sight of the fact that the Court where the proceedings of the FIR No. 186/2017 was pending trial, the learned
Presiding Officer ordered the DCP, 3rd Battalion to produce the accused
Sukesh @ Sukash Chandrashekhar before her Court failing which contempt proceedings would be initiated against the Investigating Officer as well as DCP 3rd
Battalion and the matter would be referred to the
Hon'ble High Court.
The accused was facing trial in three different cases before three different courts. One Court having issued an order of custody parole for the eventualities as mentioned in the Rule 1203, it was incumbent on the
Director General Prison / Jail Superintendent to inform the other two
Courts about the absence of the accused, obtain the next date for production of the accused.
The accused in the present case, astonishingly has been on custody parole from 05.07.2019 which was in gross violation of the Delhi Prison
Rules, 2018 and law pertaining to the custody parole.
Mr. Chetan Sharma, learned Senior Counsel for the accused, at the outset, admits that he appeared before the learned Additional Sessions
Judge -04, West District, Tis Hazari Court, Delhi, but he had no knowledge of Delhi Prison Rules, 2018. Learned counsel has made a passing reference to an order dated 15.12.2019 passed by the High Court of Madras in Crl. O.P. No. 33838/2019 and Crl. M.P. No. 18681/2019, according to which his custody parole was extended till 20.12.2019.
However, learned counsel on instructions submits that the accused is voluntarily willing to surrender before the concerned Jail Superintendent, Tihar Jail, forthwith.
The statement of learned Senior Counsel for the accused is contrary to the record as perusal of the order dated 10.10.2019 clearly mentions that the Counsel for the accused had relied upon Rule 1208 and 1209 of the Delhi Prison Rules, 2018.
Strangely enough the State failed to challenge the order dated
05.07.2019 and the subsequent orders dated 17.08.2019, 30.08.2019, 20.09.2019, 10.10.2019, 02.11.2019 and lastly on 22.11.2019 and no action was taken by the concerned authorities. Learned Special Court who was dealing with FIR No. 186/2017 was constrained to issue notice to DCP 3rd
Battalion for not producing the accused before her Court for trial in case bearing FIR No. 186/2017.
Mr. Rahul Mehra, learned Standing Counsel (Crl.) without hesitation admitted that the State has behaved irresponsibly and failed to take any action for the past six months and remained silent spectator for the reasons best known to them and there was inaction on their part, which was in gross violation of Delhi Prison Rules, 2018 as well as settled legal position. He further submitted that he would not stand in the way if the Court ordered a CBI Inquiry against the erring Jail and Police
Officials.
Having scrutinised the entire material available on record, we deem it appropriate to direct the State to take the accused in custody forthwith and sent him to the concerned jail and Central Bureau of Investigation to investigate the present matter and take appropriate action in accordance with law against erring Jail and Police Officials and other concerned to be completed as expeditiously as possible preferably within eight weeks.
Learned Additional Sessions Judge -04, West District, Tis Hazari
Court, Delhi also needs to explain his conduct in granting the custody parole vide order dated 05.07.2019 and extension thereof on various dates.
Registry is directed to place this order before the Hon'ble the Chief
Justice on administrative side for taking action against Shri Virender
Kumar Goyal, Additional Sessions Judge-04, West District, Tis Hazari
Delhi.
List for arguments on 20.01.2020.
Copy of the order be given dasti to the concerned parties, under the signatures of the Court Master.
MANMOHAN, J SANGITA DHINGRA SEHGAL, J DECEMBER 19, 2019 gr
As per Rule 1203, it is clear that an undertrial prisoner can be granted custody parole by the trial court concerned in case of an exigency for a period of not more than 6 hours excluding the time taken to reach the destination and return to the prison in the eventualities as mentioned in the rule.
It cannot be lost sight of the fact that the Court where the proceedings of the FIR No. 186/2017 was pending trial, the learned
Presiding Officer ordered the DCP, 3rd Battalion to produce the accused
Sukesh @ Sukash Chandrashekhar before her Court failing which contempt proceedings would be initiated against the Investigating Officer as well as DCP 3rd
Battalion and the matter would be referred to the
Hon'ble High Court.
The accused was facing trial in three different cases before three different courts. One Court having issued an order of custody parole for the eventualities as mentioned in the Rule 1203, it was incumbent on the
Director General Prison / Jail Superintendent to inform the other two
Courts about the absence of the accused, obtain the next date for production of the accused.
The accused in the present case, astonishingly has been on custody parole from 05.07.2019 which was in gross violation of the Delhi Prison
Rules, 2018 and law pertaining to the custody parole.
Mr. Chetan Sharma, learned Senior Counsel for the accused, at the outset, admits that he appeared before the learned Additional Sessions
Judge -04, West District, Tis Hazari Court, Delhi, but he had no knowledge of Delhi Prison Rules, 2018. Learned counsel has made a passing reference to an order dated 15.12.2019 passed by the High Court of Madras in Crl. O.P. No. 33838/2019 and Crl. M.P. No. 18681/2019, according to which his custody parole was extended till 20.12.2019.
However, learned counsel on instructions submits that the accused is voluntarily willing to surrender before the concerned Jail Superintendent, Tihar Jail, forthwith.
The statement of learned Senior Counsel for the accused is contrary to the record as perusal of the order dated 10.10.2019 clearly mentions that the Counsel for the accused had relied upon Rule 1208 and 1209 of the Delhi Prison Rules, 2018.
Strangely enough the State failed to challenge the order dated
05.07.2019 and the subsequent orders dated 17.08.2019, 30.08.2019, 20.09.2019, 10.10.2019, 02.11.2019 and lastly on 22.11.2019 and no action was taken by the concerned authorities. Learned Special Court who was dealing with FIR No. 186/2017 was constrained to issue notice to DCP 3rd
Battalion for not producing the accused before her Court for trial in case bearing FIR No. 186/2017.
Mr. Rahul Mehra, learned Standing Counsel (Crl.) without hesitation admitted that the State has behaved irresponsibly and failed to take any action for the past six months and remained silent spectator for the reasons best known to them and there was inaction on their part, which was in gross violation of Delhi Prison Rules, 2018 as well as settled legal position. He further submitted that he would not stand in the way if the Court ordered a CBI Inquiry against the erring Jail and Police
Officials.
Having scrutinised the entire material available on record, we deem it appropriate to direct the State to take the accused in custody forthwith and sent him to the concerned jail and Central Bureau of Investigation to investigate the present matter and take appropriate action in accordance with law against erring Jail and Police Officials and other concerned to be completed as expeditiously as possible preferably within eight weeks.
Learned Additional Sessions Judge -04, West District, Tis Hazari
Court, Delhi also needs to explain his conduct in granting the custody parole vide order dated 05.07.2019 and extension thereof on various dates.
Registry is directed to place this order before the Hon'ble the Chief
Justice on administrative side for taking action against Shri Virender
Kumar Goyal, Additional Sessions Judge-04, West District, Tis Hazari
Delhi.
List for arguments on 20.01.2020.
Copy of the order be given dasti to the concerned parties, under the signatures of the Court Master.
MANMOHAN, J SANGITA DHINGRA SEHGAL, J DECEMBER 19, 2019 gr