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1999 (1) Crimes 354
GUJARAT HIGH COURT
N.N. Mathur, J.
Kishor Kanji Patel - Applicant
versus
State of Gujarat & Ors. - Respondents
Special Criminal Application No. 1159 of 1992
Decided on 15-6-1998
Counsel for the parties:
For the Petitioner: Ms. Jayshree C. Bhatt, Advocate.
For the Respondent: P.P.
Headnote:Constitution of India, 1950 - Article 226 - Criminal Procedure Code, 1973 - Section 392 - Gujarat High Court Rules, 1983 - Rules 186 Petition under Article 226 - Petitioner undergoing sentence of the life imprisonment - Sought his release on parol - Both the judges agreed that petition deserves to be dismissed - But they differed on the point whether the Minister or secretary can exercise powers of release of a prisoner on parol without complying with due procedure laid down under Parol Rules 1959 - Matter referred to 3rd judge for his opinion Reference returned as being incompetent in the absence of point of difference formulated by the differing Judges.
Held: At the outset, it must be pointed out that Sec. 392 of the Cr. P.C. as referred by the Joint Registrar is not attracted in the present case. Provisions of Sec. 392 is attracted in cases of criminal appeal heard by a Division Bench. The present application is a Special Criminal Application under Art, 226 of the constitution. The relevant provision, therefore, is Rule 186 of the Gujarat High Court Rules, 1993 which provides that in the case of difference of opinion between the Judges composing the Division Bench, the point of difference shall be decided in accordance with the procedure referred under Sec. 98 of the Civil Procedure Code. (Para 6)
Further held: A reading of the judgment of Panchal, J. shows that there is disagreement between the Hon'ble Judges with respect to the question raised in the first paragraph of the judgment. The learned Judges have also disagreed with respect to castigation of the alleged act and commissions and omissions of the then Addl. Chief Secretary and the two Ministers. There is also disagreement on the question with respect to giving direction to the effect that the Home Department should placed before the Legislative Assembly in its every sessions, the particulars of prisoners released on parole and/or furlough. Admittedly, no points have been stated by the differing Judges. In absence of points formulated on which both the learned Judges have equally divided, in my view, the Reference is incompetent. The question that whether such question can now be formulated is to be considered by the concerned Division Bench. Since one of the Hon'ble Judge K.J. Vaidya, J. has retired, whether the entire matter requires re-hearing is also a matter which requires to be considered by the Division Bench to which this matter is as signed by the Hon'ble Acting Chief Justice. The Reference is accordingly returned being incompetent. (Para 7)
Result: Reference returned for being placed before the Acting Chief Justice for direction.
JUDGMENT
N.N. Mathur, J. - 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 K.J. 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 & I Parole) Rules, 1959, (hereinafter referred to as "the Rules of 1959").
2. The petitioner has been convicted for offence under Sec. 302 of I.P.C. 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 of 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 Ranyi v. State of Gujarat1. 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 15-5-1990 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, C 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 J 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 orde
