By interim-order the Court has already directed the authorities to release the convict on parole leave for a period of 30 days. The matter was kept today for the reason that Commissioner of Police, Surat City who has given negative opinion in the matter, was asked to explain as to for what reasons the negative opinion is given.
1.1 Learned APP files affidavit-in-reply affirmed by one Mr.B.D.Vaghela, I/C Commissioner of Police, Surat City, wherein it is stated in paragraph No.3 that, 'I further say and submit that the opinion which is given by the office of the Commissioner of Police, Surat City is given after taking into consideration the fact that, the convict prisoner has remained absconding for a period of 1085 days, when he was released on temporary bail by this Hon'ble Court, in the year 1997.
1.2 In paragraph No.4 it is further stated that, 'I further say and submit that, 'negative opinion is given after taking into consideration the fact that, the convict prisoner has remained absconding from the year 1997 to 2000 and he has been sent in judicial custody after being arrested by Police.' It has also been mentioned in the opinion that, 'there is likelihood of the convict being absconding, and therefore, the negative opinion is given.' A copy of the opinion dated 28.04.2012 is annexed herewith and marked as ANNEXURE-R-I to this affidavit. I further say and submit that, the said opinion is given by the Police Inspector, Khatodara Police Station, Surat City which is addressed to the Commissioner of Police, Surat City.'
2. The non-application of mind on the part of the Police Authority is apparent from the fact that it is mentioned in the said opinion that, 'application is made by the convict for grant him ' furlough' leave. It was inquired from learned APP, to in turn inquire from the Police Officer, who is present in the Court as to from where does he get this information about an application filed for grant of ' furlough' leave. Learned APP is told by Mr.B J Damor, PSI, who was entrusted the matter to inquire and to give opinion.
2.1 Mr.B J Damor, PSI, who is present before this Court made available for perusal the statements recorded prior to giving opinion in the matter. Interestingly, the statement of the mother of the convict is recorded and, therein it is recorded by the author of the statement that, ' the mother has no objection, if his son is released on parole '. It is further recorded that, ' the mother is agreeable to the release of her son on parole '.
2.2 This is a glaring example of non-application of mind on the part of the Officer of the rank of PSI, who has put in 37 years of service in the Police Department. He seems to have taken the things so lightly and has incorporated in the statement something which has absolutely no relevance to the question involved. If at all anybody's statement was to be recorded, it could have been the statement of the other side i.e. complainant side. But in the present case, even that was not required, because the convict is in jail for last 15 years, 02 months and 06 days. Still the PSI has recorded a statement of the mother of the convict.
2.3 What follows is more shocking. It is recorded in the statement of mother of the victim that, 'if her son is released on parole, he will not threaten either the Panchas or the witnesses'. The trial is over in the year 1997; applicant is convicted by judgment and order dated 27/01/1997 in Sessions Case of the year 1995. The convict has completed more than 15 years in jail. Still the PSI is writing that, 'if the son is released on parole, he will not threaten Panchas or the witnesses'. This shows the indifferent approach on the part of the Police Officer.
3. What is painful is that what is written by the Constable or Head Constable is signed by PSI, what is signed by PSI is further signed by PI and what is signed by PI is further signed by the Commissioner of Police and relying on such writing the District Magistrate rejects the application. This whole system / procedure is required to be corrected. In the present case, it is specifically mentioned in the police opinion that the matter was entrusted to PSI, Mr.B J Damor. The Commissioner of Police, Surat City is directed to take necessary action to provide a better system / procedure to avoid such lapse. Besides, he should provide for fixing the accountability for taking action against the person defaulting. The action taken in the matter be reported to this Court on the next date of hearing.
4. Learned APP places on record a communication dated 10/05/2012 from the Home Department, Government of Gujarat addressed to Central Jail, Vadodara which is received in jail on 15/05/2012 whereby the convict is granted the benefit of premature release (early release) under the provisions of Section 433 (A) of the Code of Criminal Procedure. Of course, the said order is subject to certain conditions.
5. Learned Advocate appearing for the mother of the convict in another petition being Special Criminal Application No.1536 of 2012 requested that the parole for 30 days granted by this Court by interim order be continued so that the conditions which are mentioned in the said order can be fulfilled by the convict in the meanwhile to avail the benefit of that order. The Jail Authorities are directed to act on the order and enable the convict to fulfill the conditions / formalities mentioned in the said order.
6. Matter to come up for compliance report on 18/06/2012.
(RAVI R TRIPATHI, J.) sompura Top