AZIM KHAN vs STATE NCT OF DELHI

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 29.04.2024

+ W.P.(CRL) 858/2024
AZIM KHAN ….. Petitioner
Through: Mr. Chetan Bhardwaj, Ms. Priyal Bhardwaj and Mr. Avanish Prabhat Chandra, Advocates
versus

STATE NCT OF DELHI ….. Respondent
Through: Mr. Sanjeev Bhandari, ASC for the State with Inspector Jaspal Singh, P.S. Burari

CORAM:
HON’BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J. (ORAL)

1. The instant petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) has been filed on behalf of petitioner seeking grant of parole for four weeks.
2. Issue notice. Mr. Sanjeev Bhandari, learned ASC accepts notice on behalf of State.
3. Learned counsel for petitioner argues that the petitioner is in judicial custody for more than 09 years in case arising out of FIR bearing No. 112/2011 for offence punishable under Section 302 of Indian Penal Code, 1860 (‘IPC’) registered at Police Station Burari, Delhi. The petitioner was convicted vide judgment dated 31.10.2014 and order on sentence dated 01.11.2014 passed by learned Additional Sessions Judge, Tis Hazari Courts, Delhi whereby, he was sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- for offence punishable under Section 302 of IPC and in default of payment of fine, to further undergo simple imprisonment for a period of four months. The petitioner had preferred an appeal against the said judgment vide CRL. APPEAL NO. 1667/2014 which was dismissed by this Court on 30.05.2016. Thereafter, the petitioner had preferred a SLP bearing No. SLP (CRL.) No. 7973/2016 against the order of this Court which was dismissed by the Hon’ble Apex Court vide judgment dated 24.10.2016.
4. Learned Counsel for the petitioner further argues that the petitioner’s elder daughter is facing humiliation in her uncle’s family and thereby the petitioner has to make appropriate arrangements for his daughter and shift her with her grandmother at Village Deowaria, Abdullah Ganj, P.S. Nirajganj, District Bareilly, Uttar Pradesh. It is also stated that the daughter of the petitioner has passed her Class 12th examinations and she needs to be admitted in a college of her choice for which the petitioner needs to arrange funds and has to further find an appropriate college for her so that her studies are not affected. It is also stated that this is not the first time when the petitioner is seeking parole but he has been granted the benefit of furlough four times and parole six times and has never misused the liberty granted and always surrendered on time. It is also stated that if petitioner is granted parole, he undertakes to abide by the conditions and to not misuse the liberty granted to him. Therefore, he be granted parole.
5. On the other hand, learned ASC for the State argues that the application of the petitioner for grant of parole was rejected vide order No. F.18/74/2023/HG/391-92 dated 13.02.2024 in light of Rule 1210 (II), (III) and (IV) and Rule 1211 of Delhi Prison Rules, 2018 which is in accordance with law and that the same has been passed by the respondent with due application of mind. Therefore, the present petition be dismissed.
6. This Court has heard arguments on behalf of learned counsel for the petitioner as well as learned ASC for the State and has perused the material on record.
7. This Court has gone through the impugned order dated 13.02.2024 bearing order No. F.18/74/2023/HG/391-92 passed by the respondents and the same is reproduced as under:
?“Sir,
This is with reference to your file CD No. 003755791, whereby proposal regarding grant of parole to the abovesaid convict was sent to this office for consideration. In this regard, I am to inform you that the request in respect of the abovesaid convict for grant of parole has been considered and rejected by the Hon’ble Lt. Governor of Delhi in view of the followings:
1. The convict is not entitled for parole in view of Rule 1210 sub rule (II), (III) and (IV) of Delhi Prison Rules-2018, which states that:
a. Rule 1210 sub rule (II):– “The conduct of the Prisoner who has been awarded major punishment for any prison offence should have been uniformly good for last two years from the date of application and the conduct of Prisoner who has been awarded minor punishment or no punishment for any prison offence in prison should have been uniformly good for last one year from the date of application.” In this case, as per nominal roll, punishment dated 30.11.2022 awarded to the above said convict is the major punishment in view Rule 1271 of Delhi Prison Rules 2018
b. 1210 sub rule (III): – “During the period of release on parole or furlough, if granted earlier, the convict should not have committed any crime.”
c. 1210 sub rule (IV): – “The convict should not have violated any terms and conditions of the parole or furlough granted previously.” In this case, the above said convict was released on emergency parole w.e.f. 14.05.2021 to 12.08.2021 and same was extended time to time but he was re-arrested on 30.11.2022 in case FIR No.168/2021, u/s NDPS Act, PS- Crime Branch.
2. As per Rule 1211 of Delhi Prison Rule-2018, which provide that: – “In the following cases, parole shall not be granted, except if in the discretion of the competent authority special circumstances exist, for grant of parole;

(III). Prisoners who are considered dangerous or have been involved in serious prison violence like assault, outbreak of riot, mutiny or escape, or rearrested who absconded while released on parole or furlough or who have been found to be instigating serious violation of prison discipline as per the reports in his/her annual good conduct report. In this case, the above said convict was re-arrested on 30.11.2022 in case FIR No.168/2021, u/s NDPS Act, PS-Crime Branch.

3. As per recommendations received from the office of DG (Prisons), it is recommended that the request for grant of parole on the ground of take care of his two daughters namely Kehkasha and Khushboo Fatima being generic, does not attract exceptional conditions to qualify relief under rule 1211 of Delhi Prison Rules-2018.

?4. Further, Superintendent jail has also not recommended grant of parole to him. His last one yar jail conduct and overall jail conduct is reported to be unsatisfactory. One other case is also pending against the said convict.
i. The file bearing CD No.003755791 is hereby returned in original.
ii. The convict may be informed accordingly”.

8. This Court notes that the grounds for rejecting the parole application of the petitioner is that the petitioner had been re-arrested while he was on emergency parole in case arising out of FIR bearing No. 168/2021 for offences punishable under Sections 21/29 of the NDPS Act and he had been further awarded with a major punishment in view of Rule 1271 of the Delhi Prison Rules, 2018.
9. In the present case, the nominal roll discloses that the petitioner has undergone about 09 years of actual imprisonment, excluding the remission of two years earned by him. The nominal roll also mentions that the petitioner is on bail in case arising out of FIR bearing No. 168/2021 for offences punishable under Sections 21/29 of the NDPS Act. Further, the petitioner was convicted and sentenced for imprisonment for life in FIR No. 112/2011 under Section 302 IPC.
10. This Court notes that as per nominal roll, his jail conduct for the last one year has been shown to be satisfactory. Though the overall conduct has been mentioned as unsatisfactory due to the punishments awarded to him, this Court however notes that the last punishment awarded to the present petitioner, inside the jail premises, was in the year 2022. Further, the incident of jumping of emergency parole and his re-arrest in another case pertains to the year 2022. After the year 2022, the record does not reflect that he has been released on parole or furlough on any occasion.
11. This Court notes that a Court of law must prioritize the overall well-being of prisoners, recognizing the importance of granting furlough or parole to those who have been continuously incarcerated for extended periods. Such measures serve various purposes crucial for their rehabilitation and eventual reintegration into society. Parole or Furlough enable prisoners to maintain vital connections with their families, address personal and social matters, and foster self-confidence, constructive hope, and a renewed zest for life, all essential for their psychological health and successful re-entry into society. Additionally, these measures offer a temporary relief from the pressures and negative impacts of long-term incarceration, contributing positively to the physical and mental well-being of the prisoners. However, in the present case, the present petitioner has to ensure that his daughter, who has to take admission in a college, is admitted to a college and he has to make arrangement for the funds of the same. Considering that his wife has unfortunately passed away and he also has to make arrangement for the stay of his daughter, and since his elder brother has refused to take care of her, this Court is inclined to grant parole to the petitioner for a period of three (03) weeks on the following terms and conditions:
i. The petitioner shall furnish a personal bond in the sum of Rs.10,000/- with one surety of the like amount, to the satisfaction of the Jail Superintendent.
ii. The petitioner shall report to the SHO of the local area once a week on every Sunday between 10:00 AM to 11:00 AM.
iii. The petitioner shall furnish a telephone/mobile number to the Jail Superintendent as well as SHO of local police station, on which he can he contacted if required. The said telephone number shall be kept active and operational at all the times by the petitioner.
iv. Immediately upon the expiry of period of parole, the petitioner shall surrender before the Jail Superintendent.
v. The period of parole shall be counted from the day when the petitioner is released from jail.
12. In above terms, the present petition stands disposed of.
13. The order be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J

APRIL 29, 2024/ns

W.P.(CRL) 858/2024 Page 1 of 7