Krishna Mohan Tiwari vs State Of Uttarakhand And Others

R. C. Khulbe, J

This petition, under Article 226 of the Constitution of India, has been filed by the petitioner seeking the following reliefs:

(i) "Issue a writ, order or direction in the nature certiorari directing the respondents to issue release order on parole forthwith in favour of Shri Amarmani Tripathi and Smt. Madhumani Tripathi, from District Jail-Gorakhpur, for a period of 30 days, to attend the marriage of their eldest daughter, Ms. Tanushri, whose function is starting from 15.04.2019 onwards; and

(ii) In alternative, a writ, order or direction in the nature of certiorari thereby, granting the short term bail of 30 days to Shri Amarmani Tripathi and Smt. Madhumani Tripathi and, direct the District Jail- Gorakhpur Authority to release them forthwith for a period of 30 days to attend the marriage of their eldest daughter, Ms. Tanushri, whose function is starting from 15.04.2019;

It is argued by learned counsel for the petitioner that since the marriage of the daughter of convicts is scheduled on 15.04.2019, hence, 30 days' parole/short term bail may be granted to both the convicts (Shri Amarmani Tripathi and Smt. Madhumani Tripathi).

On the other hand, learned Government Advocate, appearing for the State, argued that both the convicts are languishing in Gorakhpur Jail which falls within the territories of the State of Uttar Pradesh, and thus, both the convicts have a right to seek their grievance before the State of Uttar Pradesh. Moreover, the State of Uttarakhand Government has framed the Uttarakhand (Suspension of Sentences of Prisoners) Rules, 2017 (hereinafter to be referred as "the Rules of 2017"), under which a convicted prisoner has a right to move an application seeking parole. However, in the case in hand, none of the convicts has filed any application, either before the Commissioner of this State, as per the Rules of 2017 or before the State of Uttar Pradesh.

I have gone through the material available in the file. Petitioner Krishna Mohan Tiwari (nephew of the convicts), has filed the present writ petition on behalf of both the convicts (Shri Amarmani Tripathi and Smt. Madhumani Tripathi).

From a perusal of the file, it appears that the marriage convicts' daughter is going to be solemnized on 20. 04.2019 (Saturday).

The Rules of 2017 have been notified by the State Government vide Notification dated 04th December, 2017. Rule 3 of the Rules of 2017 says that the Commissioner may suspend the sentences of a prisoner upto fifteen days on the grounds mentioned therein. Sub-rule (2) of Rule 3 provides that the State Government, may, on further requirement, extend the period of suspension of sentence, referred to in sub-rule (1) for a period not exceeding two months, in which the accepted period of Rule (3)(1) shall also be included.

Rule 4(1) says that the period of suspension of the sentences specified in sub rule 3(2) can be extended up to three months with the approval of Governor, if required further, in which the period of Rule 3 (1) and 3(2) will also be included.

On a perusal of the record, although an application was moved by Mr. Amanmani Tripathi (son of convicts) to H.E. the Governor of Uttarakhand on 5.04.2019, but no decision appears to have been taken on the same.

As per the Rules of 2017, the concerned Commissioner is vested with the power to grant parole to any convict for an initial period of 15 days, within which the marriage of daughter of convicts is to be solemnized. However, from the record, it does not appear that any such request was made on behalf of the convicts to the concerned Commissioner nor any such request was made by the convicts even to the State Government. The application was directly moved to H.E. the Governor of Uttarakhand, whereas, according to Rule 4(1), H.E. the Governor of Uttarakhand, is bestowed with the power to extend the period of parole, already granted by the State Government.

As per the wedding card available on record, the marriage of daughter of both the convicts is going to be solemnized on 20.04.2019, whereas other marriage functions are to start w.e.f. 15.04.2019.

In view of the aforesaid facts and circumstances of the case, I dispose of the present writ petition with the direction that if an application is duly moved on behalf of the convicts before the Commissioner, Garhwal Division, the same shall be decided at the earliest possible, preferably within two days from the date of its receipt.

A copy of this order shall be supplied to the parties, as per Rules, today itself.

Registry is also directed to forthwith send a copy of this order, by fax, to the Commission, Garhwal Division.