1 - Siddharth Yadav @ Jimmy S/o Late Rakesh Yadav Aged About 35 Years v. 1 - State Of Chhattisgarh Through - Secretary, Department Of Home Affairs, Mahanadi Bhawan
Case Details
1 2025:CGHC:6454-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPCR No. 77 of 2025 1 - Siddharth Yadav @ Jimmy S/o Late Rakesh Yadav Aged About 35 Years R/o Vivekanand Nagar, Dhamtari, P.S. City Kotwali, District Dhamtari Chhattisgarh, Presently Lodged In Durg Central Jail, Durg, District Durg Chhattisgarh (On Parole At The Time Of Execution Of Affidavit) ... Petitioner(s) versus 1 - State Of Chhattisgarh Through - Secretary, Department Of Home Affairs, Mahanadi Bhawan, Atal Nagar, Naya Raipur Chhattisgarh 2 - Superintendent Of Jail Central Jail, Durg, District Durg Chhattisgarh 3 - Collector District Dhamtari Chhattisgarh 4 - Superintendent Of Police District Dhamtari Chhattisgarh 5 - Station House Officer P.S. Gurur, District Balod Chhattisgarh ... Respondent(s) For Petitioner(s) For Respondent(s) : :
Legal Reasoning
Ms. Aditi Singhvi, Advocate Mr. S.S. Baghel, G. A. Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 05.02.2025 2 1. Heard Ms. Aditi Singhavi learned counsel for the petitioner. Also heard Mr. S. S. Baghel, learned Govt. Advocate, appearing for the State/respondents. 2. The present writ petition has been filed by the petitioner with the following prayers: “10.1 That, this Hon'ble Court may kindly be pleased to grant the special emergency leave to the petitioner for a period of 30 days. 10.2 Any other relief, which this Hon’ble Court deems, fit in the facts and circumstances may also be granted in favour of the petitioner.” 3. The petitioner is a convicted prisoner who has been convicted for the offence under Section 302/34 of IPC by the learned First Addl. Sessions Judge, Balod, Dist- Balod in Sessions Case No. 30/2019 vide its judgment of conviction and sentence dated 06/07/2022. He has been sentenced to under go life imprisonment with fine of Rs. 500/- in default of payment of fine, further RI for 15 days and R.I. for 3 years with fine of Rs. 500/- in default of payment of fine, further undergo R.I for 15 days. The appeal filed by the petitioner has also been dismissed by this Court vide judgment dated 02/08/2023 passed in CRA No. 1382/2022, thereafter, the petitioner has also challenged his conviction and sentence before the Hon’ble Supreme Court by filing the Special Leave Petition (Crl), Diary No. 48547/2023 which was also dismissed by the Hon’ble Supreme Court vide order dated 08/12/2023. 4. The petitioner was remain in jail from 31/03/2019 to 23/07/2020 and presently from the date of judgment by the learned trial Court i.e. 06/07/2022 till date. He was released on parole (temporary leave) 3 under C.G. Prisoners Leave Rules, 1989 and he lastly released in the month of January, 2025 and had surrendered on 25.01.2025. 5. It is the claim of the petitioner in the petition that his mother is a widowed lady and residing alone in her house. There is no other family members resided along with her. She is aged about 60 years and suffering from ailment. Recently, she underwent a surgery for Hemiarthoplasty (surgical process related to replacing of femoral bone with the prosthesis) and advised for bed rest for two months from 23.12.2024 to 23.02.2025. The petitioner alone was alone available to take care of his mother who is completely on bed and need support for her daily routine work. The Prisoners Leave Rules provides only for leave of 14 days in every three months but does not provide any leave for medical exigency in the family except the emergency leave of the death of family members, therefore, the petitioner prayed for grant of special emergency leave in exercising its extraordinary powers of Article 226 of Constitution of India. 6. Learned counsel for the petitioner would submit that since no one is there in his family to take care of his mother, the presence of the petitioner along with his mother is necessary. He recently avail the remedy of parole and surrendered on 25.01.2025 and as per the prisoners leave rules, he can repeat his prayer for parole only after three months of earlier release, therefore, the case of the petitioner may be considered as an special case of emergency leave in the aforesaid extraordinary circumstances may be considered and he may be granted special emergency leave for 30 days. 7. On the other hand, learned counsel for the State opposes and has submitted that the petitioner is a convicted prisoner, his SLP has also 4 been dismissed by the Hon’ble Supreme Court. He already availled the remedy of parole recently and as per the prisoners leave rule, he cannot be released before completion of the further period of three months from the date of his earlier release and there is no provision in the prisoners leave rules to grant special emergency leave to the prisoner, therefore, the petition is having no merits and liable to be dismissed. 8. We have heard learned counsel for the parties and perused the material annexed with the petition. 9. The Prisoners Act, 1900 was enacted to consolidate the law relating to prisoners confined by oder of a Court. Section 31 of the Act relates to grant of leave to the prisoners. Sections 31-A to 31-E of the Act have been inserted by the M.P. Amendment Act by the erstwhile State of Madhya Pradesh which are still applicable in the State of Chhattisgarh and which state as under:- "31-A. Grant of leave to Prisoners-- (1) Subject to the provisions to this part and to such conditions as may be prescribed, the State Government or any authority to which the State Government may delegate its powers in this behalf may grant leave to any prisoner who has been sentenced to a term of imprisonment of not less than three years, for a period not exceeding twenty one days in a year, excluding the time required for journeys to the first place of his visit immediately after departure from the prison and from the place of last visit to the person (sic prison) back. (2) The provisions of sub-section (1) shall not apply to a prisoner who has been classified as a habitual criminal for the purpose of the rules for the time being in force made under the Prisons Act, 1894 (IX of 1894) and who has more than three previous convictions. (3) Leave shall not be admissible to a prisoner during a year under sub-section (1):-- 5 (i) for more than two occasions; (ii) for a period of less than ten days; and (iii) unless a period of three months has elapsed since the expiration of leave last availed of during the year and the commencement of the leave applied for. (4) No prisoner shall be granted leave under sub-section (1), unless,-- (a) he has at the time of grant of leave served one-half of his sentence including remission, or a period of not less than two years of his sentence, including remission, whichever is less; (b) he has not been punished for a prison offence under Section 46 of the Prisons Act, 1894 (IX of 1894) during twelve months preceding the date of commencement of the leave applied for. (5) The period of leave of a prisoner under sub-section (1) shall count towards the total period of his sentence (6) The authority directing the grant of leave to any prisoner under sub-section (1) may require him to enter into a bond with or without sureties for due observance of conditions specified in the direction. (7) If any prisoner granted leave under sub-section (1) fails to fulfill any of the conditions imposed upon him under the said sub-section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to penalty thereof. (8) If a prisoner has violated the conditions of leave or bond, he shall not be entitled to leave under sub-section (1) during the remaining period of his sentence. 31-B. Power to grant leave to prisoners on grounds of emergency.-- (1) Notwithstanding anything to the contrary contained in Section 31-A or in any other law for the time being in force, the State Government or any authority to which the 6 State Government may delegate its powers in this behalf, may sanction emergency leave to a prisoner who is entitled to grant of leave under Section 31-A for a period not exceeding fifteen days, excluding the time required for journey to the first place of his visit immediately after departure from the prison and from the place of last visit to the prison back, subject to such conditions as may be prescribed and may, at any time cancel the leave. (2) Emergency leave under sub-section (1) may be granted to a prisoner in case of death of his or her spouse, son, daughter, father, mother, brother, sister, paternal or maternal grand father or grand mother or in case of his or her own marriage or the marriage of his or her son, daughter, brother and sister. (3) The authority directing the grant of emergency leave to any prisoner under sub-section (1) may require him to enter into a bond with or without sureties for due observance of conditions specified in the direction. (4) If any prisoner granted emergency leave under sub- section (1) fails to fulfill any of the conditions imposed upon him under the said sub-section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to penalty thereof. (5) No prisoner shall be granted emergency leave under sub-section (1) if he has been punished for a prison offence under Section 46 of the Prisons Act, 1894 (IX of 1894), during twelve months proceeding the date of commencement of the leave applied for. (6) The leave under sub-section (1) cannot be claimed as a matter of right. (7) The period of leave under sub-section (1) shall not count towards the total period of his sentence. 31-C. Surrender by prisoner after the leave period.-- (1) On the expiry of the period for which a prisoner was released on leave under sub-section (1) of Section 31 A or 7 an emergency leave under sub-section (1) of Section 31- B, he shall surrender himself to the officer-in-charge of the prison from which he was released (2) If a prisoner does not surrender himself as required by sub-section (1), he may be arrested by any police officer without a warrant and shall be Temanded to undergo the unexpired portion of his sentence 31-D. Penalty-Any prisoner who does not surrender himself as required by sub-section (1) of Section 31-C shall be liable upon conviction to be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both. 31-E. Power to make rule--- (1) The State Government may make rules for carrying out the purposes of this part. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- (a) procedure to be followed in respect of the proceedings for grant of leave of emergency leave to prisoners; (b) the conditions for grant of leave or emergency leave to prisoners under sub-section (1) of Section 31-A, or under sub-section (1) of Section 31-B, respectively, including conditions for the supervision during the period of such leave; (c) travelling allowances for prisoners during the period of leave; (d) restrictions on the movement of prisoners during the period of leave, and (e) cancellation of leave any emergency leave or forfeiture of bond in case of violation of conditions of leave." Section 31-E of the Prisoners Act is the power of the State Government to make rules for carrying out the purposes of the Prisoners Act, as power to consider and grant parole to convicted prisoner is essentially the function of executive. 10.In exercise of the power conferred by Section 31-E of the Prisoners Act 8 the erstwhile State of Madhya Pradesh had enacted the Madhya Pradesh Prisoner’s Leave Rules, 1989 which is also applicable in the State of Chhattisgarh as duly adopted. Rule 4 A of the C.G. Prisoner's Leave Rules, 1989 provides the eligibility of leave and Rule 4C provides the duration of general leave and Rule 4D provides the duration of emergency leave which is relevant in the facts of the present case for its consideration which are reproduced hereinbelow:- 4A. Eligibility for Leave. - Notwithstanding anything contained in Sections 31-A and 31-B of the Prisoners Act, 1900, eligibility criteria for leave for prisoners, undergoing sentences in the prisons of the State shall be as follows :- (1) Prisoner who has undergone at least 6 months of actual sentence out of total sentences (excluding undertrial period and remission) shall be eligible for general leave, but for emergency leave, eligibility for leave shall be calculated from the date of admission into prison. (2) Prisoner has shown good conduct in Jail during the period of his undertrial confinement and has not been punished for any other Jail offence or punishable offence. (3) Prisoner has shown good conduct during the period of the year in which prisoner submits his application for leave. 4C. Duration of general leave. - Eligibility criteria for leave for prisoners as per Rules 4-A and 4-B shall be as follows ;-During the year (agriculture year from month June to May) prisoner shall be eligible for maximum leave of 60 days, which shall be sanctioned in four parts of not more than 15 days in the following duration :- (1)For sowing the Kharib Crop - from the month of June to month of August - 15 days. (2)For harvesting the Kharib Crop - from the month of September to month of November - 15 days. (3)For sowing the Rabi Crop - From the month of December to month of February - 15 days. (4)For harvesting the Rabi Crop - from the month of Mach to month of May - 15 days. 9 Note :- (1) It shall be compulsory to keep an interval of at least 01 month between two general leaves. (2)The duration of leave shall include the expected time to travel and days of departure from and arrival to the prison. (3)The duration of leave shall be included while calculating the duration of the prisoner's total sentence. 4D. Duration of emergency leave. - Apart from general leave, convicted prisoner shall he eligible for emergency leave from the date of his admission into prison as follows :- (1)Emergency Leave for Marriage. - Prisoner shall be eligible for leave for a period of 15 days for the marriage of himself, his/her daughter/son, sister and brother (2)Emergency leave in case of death. - Prisoner shall be eligible for leave for a period of 15 days in the event of death of his/her son/daughter, his/her mother/father as well as mother or father of his/her wife/husband. Note :- (1) The duration of emergency leave shall not be included while calculating the duration of the prisoner's total sentence. (2)No prisoner shall lie sanctioned more than one emergency leave for marriage in a year.] 11. From perusal of the provisions of the Rule 4 C of the Rules 1989, it is quite vivid that the prisoners are entitled for leave of total period of 42 days in one year started from first of January up to 31 December of that year which are to be granted in 3 part with the interval of every three months and there should be interval of minimum three months in two leaves. Rule 4 D provides for emergency leave of the prisoner only on the ground of marriage of himself, his/her daughter/son, sister and brother or in case of death of his/her daughter/son, mother/ father as well as mother of, father of his/her wife/ husband. The ground of the 10 claim of the claim of the petitioner i.e. his mother is suffering from ailment and she underwent of surgery and he has to take care of his mother is not covered under any clause of Rule 4 of Rules, 1989. 12.Since, there is no provision for any emergency medical leave to take care of the mother of the petitioner and therefore he cannot be released on parole as the three months period has not been lapsed from his earlier leave as he himself has stated that he has surrendered on 25.01.2025 and without the interval of three months period of his earlier leave, he cannot be released on leave. 13.Therefore, considering the facts and circumstances of the case further considering the Prisoner’s Act, 1900 and C.G. Prisoner Leave Rules, 1989 and further in absence of any provisions for grant of emergency medical leave to the prisoners, he cannot be directed to be released for the period of 30 days on special emergency leave. We do no find any ground to grant any relief to the petitioner in the petition, accordingly, the petition is liable to be and is hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge Sd/- (Ramesh Sinha) Chief Justice sagrika SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.02.17 10:20:21 +0530