Himachal Pradesh High Court
Kehar Singh vs State on 18 April, 2022
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 18th DAY OF APRIL, 2022.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
CIVIL WRIT PETITION No.908 of 2022.
Between:-
KEHAR SINGH, S/O SH. JIWA NAND,
AGED ABOUT 32 YEARS, R/O VILLAGE :
DALASANI, P/O : SACHANI, P/S & TEHSIL
BHUNTER, DISTRICT : KULLU, HP, THROUGH
PETITIONER FATHER NAMED SH. JIWA NAND,
S/O LT. KUNJ LAL AGED ABOUT 61 YEARS,
R/O VILLAGE: DALASANI, P/O: SACHANI,
P/S & TEHSIL BHUNTER, DISTRICT KULLU, H.P.
......PETITIONER.
(BY SH. SUNIL KUMAR AND
SH. PANKAJ SAWANT, ADVOCATES)
AND
1. STATE OF HP, THROUGH ITS PRINCIPAL
SECRETARY, DEPARTMENT OF HOME
(JAIL), SHIMLA, DISTT: SHIMLA-171002 (H.P.)
2. THE DIRECTOR GENERAL PRISON
CORRECTIONAL SERVICES OFFICER AT
SHIMLA-171009 (H.P.)
3. INSPECTOR GENERAL OF PRISIONS &
CORRECTIONAL SERVICES, HIMACHAL
PRADESH, SHIMLA-171009.
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4. THE SUPERINTENDENT OF JAIL,
MODEL CENTRAL JAIL, NAHAN,
DISTRICT : SIRMOUR (H.P.)
.
......RESPONDENTS.
(SH.ASHOK SHARMA, ADVOCATE GENERAL
WITH SH. RAJINDER DOGRA, SENIOR
ADDITIONAL ADVOCATE GENERAL, MR.
VINOD THAKUR, MR. SHIV PAL MANHANS,
ADDITIONAL ADVOCATE GENERALS,
MR. BHUPINDER THAKUR, DEPUTY ADVOCATE
GENERAL AND MR. RAJAT CHAUHAN, LAW
OFFICER, FOR RESPONDENTS-1 TO 4)
________________________________________________________________
This petition coming on for admission after notice
this day, Hon'ble Mr. Justice Tarlok Singh Chauhan, passed the
following:
ORDER
The District Magistrate, Kullu, District Kullu, H.P., did not recommend release of the petitioner on parole, hence, the respondents rejected his case as such.
2. Learned Special Judge, Mandi (I) District Mandi (H.P.), vide judgment dated 25.09.2019 in Sessions Trial No. 25 of 2016, convicted the petitioner for the offence punishable under Sections 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-. In ::: Downloaded on - 19/04/2022 20:05:14 :::CIS 3 default of payment of fine, the petitioner was directed to undergo simple imprisonment for a period of one year.
.
3. Criminal Appeal No.122/2020, preferred by the petitioner against the aforesaid judgment is still pending adjudication before this Court.
4. All the applications of the petitioner seeking parole have been rejected by the respondents on the basis of non-
recommendation by the District Magistrate, Kullu, District Kullu, H.P. The reason assigned for rejection of the parole was that the local people will lose faith in law and it will also adversely affect the law and order prevailing in the area. Aggrieved thereby, the instant petition has been preferred by the petitioner, praying for release on parole for a period of four weeks.
5. Taking note of Section 6 of H.P. Good Conduct Prisoners (Temporary Release ) Act, 1968 a Coordinate Bench of this Court in CWP No.2931 of 2019, titled Hari Dei versus State of Himachal Pradesh & others, decided on 03.06.2020, allowed the petitioner therein to be released on parole on the ground that there was no report of the concerned District Magistrate that release of the convict on parole would endanger either ::: Downloaded on - 19/04/2022 20:05:14 :::CIS 4 security of the State or the public order. In the instant case also, this is not a ground for refusing to recommend the release .
of the petitioner on parole. The District magistrate has simply assumed that petitioner being young can repeat the offence if released on parole. In 1985 CRL L.J. 1458, titled Bir Singh Vs. the State of Himachal Pradesh and others, this Court observed as under:-
"3. ...................."The absence of an opportunity to watch his conduct outside jail for the reason of his not having been released on parole/furlough is again not a factor which could be legitimately pressed into service on the facts and in the circumstances of the case. There is no reason to assume that if the petitioner is granted the benefit of premature release, he would once again display criminal tendency. Such an assumption overlooks not only that the petitioner is not shown to be a habitual offender but also the reformatory aspect of the penalty procedure as well as the good record of the petitioner during the entire period of his imprisonment. ......................."::: Downloaded on - 19/04/2022 20:05:14 :::CIS 5
6. Similarly, in 2017 (15) SCC 55, titled Asfaq versus State of Rajasthan and others, Hon'ble Apex Court observed .
as under:-
"18). The provisions of parole and furlough, thus, provide for a humanistic approach towards those lodged in jails. Main purpose of such provisions is to afford to them an opportunity to solve their personal and family problems and to enable them to maintain their links with society. Even citizens of this country have a vested interest in preparing offenders for successful re-entry into society. Those who leave prison without strong networks of support, without employment prospects, without a fundamental knowledge of the communities to which they will return, and without resources, stand a significantly higher chance of failure. When offenders revert to criminal activity upon release, they frequently do so because they lack hope of merging into society as accepted citizens.
Furloughs or parole can help prepare offenders for success."
"22). Another vital aspect that needs to be discussed is as to whether there can be any presumption that a person who is convicted of serious or heinous crime is to be, ipso facto, treated as a hardened criminal. Hardened criminal ::: Downloaded on - 19/04/2022 20:05:14 :::CIS 6 would be a person for whom it has become a habit or way of life and such a person would .
necessarily tend to commit crimes again and again. Obviously, if a person has committed a serious offence for which he is convicted, but at the same time it is also found that it is the only crime he has committed, he cannot be categorised as a hardened criminal. In his case consideration should be as to whether he is showing the signs to reform himself and become a good citizen or there are circumstances which would indicate that he has a tendency to commit the crime again or that he would be a threat to the society. Mere nature of the offence committed by him should not be a factor to deny the parole outrightly. Wherever a person convicted has suffered incarceration for a long time, he can be granted temporary parole, irrespective of the nature of offence for which he was sentenced. We may hasten to put a rider here, viz. in those cases where a person has been convicted for committing a serious office, the competent authority, while examining such cases, can be well advised to have stricter standards in mind while judging their cases on the parameters of god conduct, habitual offender or while judging whether he could be considered highly dangerous ::: Downloaded on - 19/04/2022 20:05:14 :::CIS 7 or prejudicial to the public peace and tranquility etc."
.
7. The principles laid down in the above judgment were reiterated in 2019 (1) Scale 560, titled Mohammed Shamsuddin versus The State of Rajasthan & others.
8. Entire law has been enunciated and encapsulated by this Court in CWP No.529 of 2018, titled Jagat Ram versus State, decided on 26.06.2020.
9. In the instant case, it is not in dispute that petitioner has already served almost 6 years, out of ten years of substantive sentence, imposed upon him. He has not been released on parole despite repeated applications stated to have been submitted by him in this regard. There is no complaint against the act and conduct of the petitioner within the prison. Release of parole was originally sought on the ground to meet with his family. This factual position is not disputed by the respondents.
10. Therefore, this petition is allowed. The respondent/competent authority is directed to release the petitioner on parole for a period of 15 days on his furnishing personal bond in the sum of Rs. 1.00 lakh with two sureties in ::: Downloaded on - 19/04/2022 20:05:14 :::CIS 8 the sum of Rs. 15,000/- each, to the satisfaction of the Superintendent Jail, Model Central Jail, Nahan, District Sirmaur, .
H.P. The petitioner shall surrender before the Superintendent Jail, Model Central Jail, Nahan, District Sirmaur, H.P immediately on expiry of 15 days of parole. However, his parole shall be liable to be cancelled, in case the petitioner breaches any of the conditions of the parole order and/or creates law and order problems, which shall be treated as a negative factor for consideration of his similar prayers in the future.
11. Accordingly, the writ petition is disposed of, so also pending miscellaneous application, if any.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 18th April, 2022.
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