R.P.Raj v. The Andaman And Nicobar Administraton And ORS.

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE RAI CHATTOPADHYAY WPA/257/2022 Shri R. P. Raj ... Petitioner

Versus

The Andaman and Nicobar Administration and others ... Respondents For the petitioner :

Mr. Rajinder Singh Ms. Gloria Mary For the Respondents :

Mr. Sumit Karmakar Heard on :

27th September, 2023 Judgment on :

27th September, 2023 RAI CHATTOPADHYAY, J.

1.

The writ petitioner is the father of a convict, who was initially sentenced to death. His sentence has subsequently been converted to a sentence for life imprisonment. The son of the present writ petitioner has been in custody for about fourteen years, while serving the said sentence.

2.

The writ petitioner is aggrieved that the Correctional Home authorities have not acted upon or taken any steps as regards his application dated January 7, 2022. By dint of the said application dated January 7, 2022 the writ petitioner has requested leave

(furlough) to the said convict (No. 145977), at District Jail, Paharpur. The writ petitioner has relied therein, on the ground of his wife i.e. the mother of the convict being an elderly and seriously ill person having lost her mobility and now being unable to visit her son would desire her son to be before her eyes, in her final days. It has also been stated that the mother of the convict is at a risk of having life threatening deceases.

3.

Mr. Singh who is representing the petitioner has sought intervention of the Court into the stumbling silence of the respondent authorities on the ground that after serving the sentence for about fourteen years, the convict may be considered for stray departures from his regular jail life by allowing furlough for a limited period. 4.

Mr. Sumit Karmakar is representing the respondent authorities. The first contention of Mr. Sumit Karmakar is that the furlough is not a right but a concession or liberty allowed to a convict by the authorities. By referring to the provisions of Correctional Home manuals he has submitted that the Correctional Home authority is the sole competent body empowered under the statute to decide about eligibility of a convict for availing such a concession. 5.

By referring to certain documents annexed with the affidavit-inopposition filed by the respondent authorities it has further been submitted that even though the respondent authorities had earlier proceeded for considering granting such a concession to the said

convict, the inquiry at the relevant point of time revealed that the conduct of the convict has not been conducive for such a benefit to be allowed to him. It has further been submitted that the concerned authority has duly exercised its discretionary power in rejecting petitioner's prayer as above on the ground of the reasons being not sufficient and compelling enough to allow such prayer, particularly when the unbecoming conduct of the convict has been surfaced and staring at the face.

6.

The issue involved in this writ petition is summarized in the following manner that whether the writ petitioner would be successfully able to maintain the present case under Article 226 of the Constitution of India and get a redress of his grievance of the respondent authority not having answered his prayer for release of his son, who is a convict and sentenced to suffer life imprisonment, for release on furlough.

7.

The prerogative equitable remedy of a writ is available to a person who has come before the Court assailing infringement of any of his legal rights as enshrined in the Constitution of India. Infringement of the legal right of a citizen by the authority who has been assigned with the duty to protect the same is the foundational ground upon which an equitable remedy would be allowed by a Court of Law. It is a law well settled that a Writ Court would always be very slow and act

with circumspection while interfering into the field of exercise of discretionary power by an authority.

8.

As it has been held in the case of State of Karnataka vs. All India Manufactures Organisation reported in (2006) 4 SCC 683, every action of State or its instrumentality, which is illegal, in contravention of the prescribed procedure, unreasonable, irrational or malafide is open to judicial review. Enforcement of any legal right and performance of any legal duty, is the moto to issue a prerogative relief like issuance of writ. 9.

In this regard one can have a look to the principle iterated by the Hon'ble Supreme Court in the case of Muni Suvrat-Swami Jain S.M.P. Sangh vs. Arun Nathuram Gaikwad and others reported in (2006) 8 SCC 590. Though the Hon'ble Supreme Court was dealing with a matter involving interpretation of the provisions under the Bombay Municipal Corporation Act-1888, while doing so, it has based its decision on the proposition that the High Court cannot impede the exercise of the discretionary power by the authority, by issuance of a mandatory order. The said principle squarely applies to the facts of the instant case too. An administrative act or decision of the respondent authority, unless suffers from manifest error or if is allowed to stand would amount to perpetuation of grave injustice, is not a subject matter of casual interference as the writ court is to keep in mind the salutary principle, that in a case of like nature, the same is not an appellate Court.

10.

In the particular facts and circumstances of the instant case wherein the respondent authorities are the stake holder for custody, welfare and reformation of a convict, no doubt in presence of sufficient reasons, they are empowered under the statute to exercise their discretion to go beyond the order of the Court as regards the sentence and allow concession/liberty to a convict from the brassbound and rigorous life in captivity, to some limited liberty. However, one cannot say that non consideration of the respondent authority in case of any of the convicts for granting such a concession would amount to infringement of any of the legal rights as such. The power of the respondent authority is only discretionary and his decision should be based on objective considerations particularly regarding the conduct of the convict within the Correctional Home. A properly exercised discretionary power, in discharge of the administrative function, does not warrant interference in any manner.

11.

There is no challenge in this case to the unbecoming conduct of the convict in the Correctional Home as the inquiry report envisaged. Mr. Singh, in support of his client the writ petitioner, has only emphasized that previously in a writ appeal, in an order dated March 2, 2020 the Hon'ble Division Bench has stated that the petitioner's scope for applying for parole/furlough at any future point of time would be unfettered in view of the new materials based on future conduct and behaviour of the convict in prison. The same order of the

Hon'ble Division Bench has been relied on the respondents also who submit that the writ petitioner's prayer for release of the said convict on parole has been rejected by the Court on the ground that such a release of the convict was not a right but only a concession allowed to him under the law.

12.

Rule 17.03 and 17.04 of the Prison Rules of the Union Territory/Government would reveal that the respondent authority would reserve the right to debar/withdraw any prisoner from the concession of leave in an appropriate case. The legislative intend would reveal from Rule 17.01 in Chapter XVII of the Prison Manuals which may be extracted as follows :

"17.01. Leave and special leave to inmates are progressive measures of correctional services. The release of a prisoner on leave not only saves him from the evils of incarceration but also enables him to maintain social relations with his family and the community. It also helps him maintain and develop a sense of self-confidence. Continue contacts with family and the community sustain in him a hope for life. The provisions for grant of leave should be liberalized to help a prisoner maintain a harmonious relationship with his family. The privilege of leave should, of course, be allowed to selective prisoners on the basis of well-defined norms of eligibility and propriety."

13.

Coming back to the fact of the present case, it can be stated that the son of the petitioner is serving sentence in the Correctional Home at present. So far as ailment of his mother is concerned, in reply to the query raised by the respondents, the writ petitioner has submitted

certain medical documents including prescriptions and doctor's certificate. It is submitted before the Court that even then the concerned authority has not recommended for leave of the said convict for certain specific reason as envisaged in the report of the Superintendent of Police, South Andaman District dated December 3, 2019. The said report has revealed that the police has decided not to recommend the said convict for grant of parole for the reason that his release may have dangerous threat to the life of the victim's family as well as witnesses of the case, as his conduct within the premises of the Correctional Home has been unbecoming, indisciplined, unruly and endangering. This decision has been taken by the authority on the basis of objective consideration of the inquiry report regarding conduct of the convict.

14.

This Court finds no reason to exercise any interference as to the functioning of the concerned authority in terms of the statute as well as on the basis of the available materials. Not on each and every occasion the writ Court would involve into interfering with the decision of the respondent authority unless palpable illegality, perversity, unreasonableness or arbitrariness is apparent. In the present case the Court finds the decision of the respondent authorities to be free from any such blemish. Accordingly, there is no cogent or sufficient ground available in this case for which this Court can interfere or persuade in

any manner the decision of the respondent authority with regard to the issues involved.

15.

Under such circumstances the writ petition must fail. 16.

WPA/257/2022 is dismissed however, without any order as to costs.

17.

Urgent Photostat certified copy of the judgment, if applied for, be supplied to the parties upon compliance of all legal formalities. (RAI CHATTOPADHYAY, J.)