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Earlier in 2018, Charkha had got parole for a period of 10 days for arranging medical and financial needs of his newborn child, even though the bench noted that he had not surrendered well within time from parole twice
The Gujarat High Court has held that release of prisoners on parole would not amount to suspension of sentence, rather it should be treated as part of sentencing itself.
A single judge bench of Justice Nisha M Thakore granted 15 days parole to a convict, Hassan Ahmed Charkha @ Lalu, who is serving life imprisonment in the Sabarmati Express train burning case of 2002 which led to Gujarat riots.
According to the sessions court order of March 1, 2011, Hassan was part of the mob which "hatched a pre-planned criminal conspiracy equipped with deadly weapons and carboys of inflammable liquids and with a view to fulfill their common intention shouted slogans like 'Pakistan Jindabad', 'Hindustan Murdabad' and 'Hindu Kafiro ko Jala dalo' and without caring whatsoever that it would result into communal riots, malafidely incited and excited with communal frenzy, assaulted Sabarmati Express Train, pelted stones on these coaches of the train and passengers, poured inflammable liquid like petrol on coach S-6 of the train and set it on fire, as a result of which, out of the passengers travelling in the said train, 59 females, males and children were set on fire and they were killed and murdered and physical injuries to about 48 males, females and children were intentionally caused by fire and stone pelting and thus, an attempt was made to murder them".
The court rejected a contention by the Gujarat government counsel that it cannot entertain a writ petition by the convict to release him on parole as his appeal as well as a plea for regular bail was pending before the Supreme Court.
Convict Hasan Ahmed Charkha through his wife had moved the High Court seeking his release on parole for 60 days or for appropriate days on any terms and conditions.
He sought a direction to keep in abeyance the notification issued by Gujarat government under Section 268 of the Criminal Procedure Code during the parole leave.
The provision restricted movement of prisoners involved in serious offences outside the jail premises and barred them from getting parole leaves.
Charkha sought parole on the ground that the son and daughters of his two sisters were getting married on July 16 and being a maternal uncle his presence was required in absence of his father.
The state government counsel opposed the plea, contending that Charkha’s appeal against conviction was pending in the Supreme Court along with an application for regular bail.
The government counsel argued that since the appeal was pending in Supreme Court, the convict couldn’t have sought parole under Article 226 of the Constitution as remedy for him was available only under Section 389 of CrPC for temporary bail. It was contended that since the apex court was in seisin, the high court didn’t have jurisdiction.
However, relying upon the Jail Manual, and the rules, the court said that the day on which a prisoner is released on parole and the day on which the prisoner surrenders back to jail will be counted in period of sentence. "The conjoint reading of the aforesaid provisions clearly indicates that grant of parole is not treated as suspension of sentence and on the contrary, it has to be read as part of sentence," it said.
Relying upon several judgements, the High Court held that under Article 226, it had the jurisdiction to examine applications seeking parole leave.
"No legal bar being brought to the notice of this court which takes away the writ jurisdiction of this court under Article 226 of the Constitution to examine such application for parole, pending appeal," the court said.
It also noted that the co-accused in the same offence have been enlarged on bail by the Supreme Court by order of April 26, 2023.
Case Title: Hasan Ahmed Charkha Vs. State of Gujarat
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