Punjab-Haryana High Court
Surjeet Singh vs State Of Haryana And Ors on 30 November, 2017
Author: Surinder Gupta
Bench: Surinder Gupta
CRWP No. 388 of 2017 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRWP No. 388 of 2017
Date of decision: 30.11.2017
Surjeet Singh .... Petitioners
Versus
State of Haryana and others .... Respondents
CORAM: HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. B.S. Jatana, Advocate
for the petitioner.
Mr. Ashish Yadav, Addl. AG, Haryana.
SURINDER GUPTA, J.
The question, which arises for consideration in this petition is how to compute period of five years bar, prohibiting grant of parole or furlough to convicted hardcore prisoners as provided in Sub Section (2) of Section 5A of the Haryana Good Conduct Prisoners (Temporary Release) Act (later referred to as 'the Act of 1988'), as amended vide Haryana Act No. 16 of 2015.
Section 5A of the Act of 1988 reads as follows:-
"5A Special provisions for temporary release of hardcore prisoners - (1) Notwithstanding anything contained in sections 3 and 4, no hardcore prisoner shall be entitled to temporary release or furlough.
Provided that a hardcore prisoners may be released on temporary basis to attend the marriage of his grand child or sibling, or death of his grand parent, parent, grand parent-in-laws, parent-in-laws, sibling, spouse, child or grand child under an armed police 1 of 7 ::: Downloaded on - 10-12-2017 22:55:05 ::: CRWP No. 388 of 2017 -2- escort, for a period of forty-eight hours, to be decided by the concerned Superintendent of Jail;
Provided further that a hardcore prisoner may be released on temporary basis to attend the marriage of his daughter for ninety-six hours and for the marriage of his son for seventy-two hours under an armed police escort, to be decided by the concerned Superintendent of Jail. He shall intimate within twenty-four hours, the concerned District Magistrate and Superintendent of Police in this regard with full particulars of the hardcore prisoner being so released.
"(2) Notwithstanding anything contained in sub-section (1), a convicted hardcore prisoner who has not been awarded death penalty, may be entitled for temporary release or furlough only if he has completed his five years imprisonment and has not been awarded any major punishment by the Superintendent of Jail, as judicially appraised by the concerned District and Sessions Judge;
Provided that the five year imprisonment period shall not include imprisonment during trial period for more than two years, while counting five years of imprisonment;
Provided further that if the prisoner so released under this sub-section violates any condition of temporary release or furlough, he shall be debarred from such release in future."
2 of 7 ::: Downloaded on - 10-12-2017 22:55:06 ::: CRWP No. 388 of 2017 -3- Petitioner-Surjeet Singh was convicted and awarded sentence of rigorous imprisonment for ten years vide judgment dated 13.02.2001 in case bearing FIR No. 338 dated 02.10.1996, registered at Police Station Kalanwali, District Sirsa for offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appeal filed by petitioner was also dismissed.
As per custody certificate produced by the petitioner as Annexure P-1, he has undergone actual sentence of 5 years 3 months and 21 days as on 17.03.2017, which include under-trial imprisonment period of 6 months 2 days. He moved an application seeking parole to look after his crops, which was declined by Commissioner, Hisar Division vide order dated 14.11.2016 with observation as follows:-
"As per section 2(aa) (iv) of Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2013 issued by Haryana Government Jail department, the following provisions are mentioned:-
2. For clause (aa) of section 2 of the Haryana Good Conduct Prisoner Amendment of (Temporary Release) Act, 1988, the following clause shall be substituted section 2 of Haryana namely (aa) (i)
(iv) "Hardcore Prisoner" means a person, who has been detected of using cell phone or in possession of cell phone/SIM card inside the jail premises; or After section 5 of the principal Act, the following sections shall be inserted, namely:-
"5A Special provisions for hardcore prisoners -
3 of 7 ::: Downloaded on - 10-12-2017 22:55:06 ::: CRWP No. 388 of 2017 -4- Notwithstanding anything contained in sections 3 and 4, a hardcore prisoner shall not be released on temporary basis or on furlough;
Provided that a hardcore prisoner may be allowed to attend the marriage of his child, grand child or sibling, or death of his grand parent, parent, grand parent-in-laws, parent-in-laws, sibling, spouse or child under the armed police escort, for a period of forty-eight hours, to be decided by the concerned Superintendent Jail and intimation to this regard with full particulars of hardcore prisoner being released, shall be sent to the concerned District Magistrate and Superintendent of Police within twenty four hours."
As per the report of Superintendent District Jail, Sirsa the prisoner falls under the category of "Hardcore Prisoner" for the reason that mobile phone was recovered from the prisoner during the search in jail. As per the provisions of Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2013 "Hardcore Prisoner" is not entitled to parole/furlough. Therefore as per provisions given in section 2 (aa) (iv) of Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2013 "Hardcore Prisoner" is not entitled to parole. Therefore, as the application of 4 of 7 ::: Downloaded on - 10-12-2017 22:55:06 ::: CRWP No. 388 of 2017 -5- prisoner Surjit Singh son of Gurdev Singh was not accepted as per the rules, the release warrant dated 30.06.2016 for temporary release on parole is hereby cancelled and application of prisoner is rejected. Prisoner be informed about this order."
Learned State counsel while opposing the grant of parole to the petitioner has argued that the petitioner falls in the category of hardcore as on 13.07.2016 a mobile phone alongwith a packet of tablets was recovered from his possession. After the recovery of mobile phone on 13.07.2016, he will become entitle for parole after expiry of five years as per provisions of sub-section (2) of Section 5A of the Act of 1988.
Learned counsel for the petitioner has argued that though the petitioner falls in the category of hardcore prisoner after the alleged recovery of mobile phone from him but there is no bar in granting him parole or furlough as he has already completed five years imprisonment. Sub-section (2) of Section 5A of the Act of 1988 nowhere requires that five years imprisonment should be after a prisoner has fallen in the category of hardcore prisoner. Observations of Commissioner, Hisar Division are against provisions of the Act of 1988, which provides that a hardcore prisoner may be entitled for temporary release or furlough only if he has completed five years imprisonment as per provisions of sub-section (2) of Section 5A of the Act of 1988. The competent authority has not even looked into those provisions while passing order dated 04.11.2016.
On perusal of sub-section (2) of Section 5A of the Act of 1988, I nowhere find this embargo that five years period is to be computed after a prisoner has fallen in the category of hardcore prisoner. Sub-section (2) of 5 of 7 ::: Downloaded on - 10-12-2017 22:55:06 ::: CRWP No. 388 of 2017 -6- Section 5A of the Act of 1988 bars grant of parole or furlough till a prisoner has completed his five years of imprisonment and has not been awarded any major punishment by the Superintendent of Jail, as judicially appraised by the concerned District and Sessions Judge. The five years period of imprisonment may include two years imprisonment during trial. If, the contention of learned State counsel be accepted that five years imprisonment is to be counted from the day a prisoner has fallen in the category of hardcore prisoner after recovery of a mobile phone or under other terms and conditions as laid down in the Act, then the question, which arises for consideration is, as to how the period of two years imprisonment during trial may be included in that period of five years bar in granting parole or furlough. The plain and simple interpretation of Section 5A (2) of the Act of 1988 is that a prisoner, who has fallen in the category of hardcore prisoner, shall not be entitled to temporary release or furlough till he completes five years imprisonment including maximum of two years imprisonment during trial. The restriction has been imposed for inclusion of under-trial period of maximum of two years and period of detention more than 2 years during trial is to be ignored. Admittedly, the petitioner has not been awarded any punishment by the Superintendent of Jail. For the alleged recovery of mobile phone an FIR was registered for which he has been convicted by the trial Court. The punishment awarded by the trial Court is not the punishment awarded by the Superintendent of Jail.
As a sequel of my above discussion, I find no merit in the submissions of learned State counsel that period of five years imprisonment for grant of parole or furlough is to be counted from the date the prisoner has fallen in the category of hardcore prisoner. The petitioner, who has 6 of 7 ::: Downloaded on - 10-12-2017 22:55:06 ::: CRWP No. 388 of 2017 -7- already completed more than 5 years imprisonment which does not include more than two years imprisonment as under-trial, has become entitled to grant of parole/furlough as per provisions of Section 5A of the Act of 1988. Consequently, petition is allowed and order dated 04.11.2016, passed by Commissioner, Hisar Division is set aside with direction to reconsider case of petitioner for grant of parole/furlough as per provisions of the Act of 1988, within a period of six weeks of the receipt of copy of this order.
September 30, 2017 (SURINDER GUPTA)
jk JUDGE
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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