Himachal Pradesh High Court
Padmi vs State Of Rajasthan And Others on 23 May, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
.
ON THE 23RD DAY OF MAY, 2022
BEFORE
HON'BLE MR.JUSTICE MOHAMMAD RAFIQ
CHIEF JUSTICE
&
HON'BLE MR.JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION NO.1347 OF 2022
Between:-
DHARAM PAL SON OF SH.RAM SINGH,
AGED ABOUT 28 YEARS, R/O VILLAGE
PADMI, POST OFFICE BALLIAN, TEHSIL
BAIHADI, POLICE STATION
SASHIGARH, DISTRICT BARELI, U.P.
THROUGH SUPERINTENDENT OF JAIL.
...... PETITIONER (IN JAIL)
(BY MR.SUNIL KUMAR, ADVOCATE.)
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 PRISONS
& CORRECTIONAL SERVICES,
HIMACHAL PRADESH, SHIMLA-
171009.
4. THE SUPERINTENDENT OF JAIL,
MODEL CENTRAL JAIL KANDA,
DISTRICT SHIMLA, (H.P.)
......RESPONDENTS
::: Downloaded on - 24/05/2022 20:05:23 :::CIS
2
( BY MR.ASHOK SHARMA, ADVOCATE
GENERAL WITH MR.VIKAS RATHORE,
ADDITIONAL ADVOCATE GENERAL)
.
This petition coming on for orders this day, Hon'ble Mr.Justice
Sandeep Sharma, passed the following:
ORDER
Being aggrieved and dissatisfied with the order dated 06.10.2021 (Annexure P-2), whereby prayer made on behalf of the petitioner-convict (hereinafter referred to as the 'petitioner') for grant of parole came to be rejected, petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for issuance of writ of certiorari to quash and set aside the aforesaid order dated 06.10.2021 and grant parole of 28 days.
2. For having bird's eye view, certain undisputed facts, which may be relevant for adjudication of the case at hand, are that FIR No.218 of 2014 dated 27.09.2014 was registered against the petitioner alongwith other persons at Police Station Nalagarh, District Solan for their having allegedly committed offences punishable under Section 302, 364 and 201 read with Section 34 of the Indian Penal Code (for short 'IPC'). Vide judgment dated 23.10.2019 passed by learned Additional Sessions Judge, Nalagarh, District Solan, in Sessions Trial No.16-NL/7 of 2015, petitioner came to be convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine to the tune of Rs.five thousand for his having committed offence punishable under ::: Downloaded on - 24/05/2022 20:05:23 :::CIS 3 Section 302 read with Section 34 IPC. Besides above, petitioner also came to be convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine to the tune of .
Rs.3000/- for his having committed offence punishable under Section 364 read with Section 34 IPC.
3. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence passed by Court below, petitioner-convict preferred an appeal bearing Criminal Appeal No.115 of 2020 before this Court, but the same is pending adjudication.
4. Petitioner has already undergone sentence of almost eight years and five months including the remission period of five months and seventeen days till date. On 17.11.2020, vide Annexure P-1, petitioner applied for temporary parole to Director General of Prisons & Correctional Services, Shimla, (hereinafter referred to as DG (Prisons), with a view to meet his family.
However, after approximately 11 months of filing the application, office of Additional Director General Prisons vide a communication dated 06.10.2021 (Annexure P-2) informed the petitioner through Superintendent Jail, Model Central Jail, Kanda, District Shimla that his prayer for parole has been rejected on account of non-
recommendation by District Magistrate.
5. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein ::: Downloaded on - 24/05/2022 20:05:23 :::CIS 4 for issuance of direction to DG (Prisons) to grant him parole for 28 days.
6. Reply to the petition stands filed on behalf of the .
respondents, wherein it has been stated that on 17.11.2020, petitioner Dharam Pal had applied for temporary release on parole to meet his family members and his request was duly processed by the Superintendent Jail, Model Central Jail, Kanda (Shimla), H.P. vide his letter No.9950-52, dated 20.11.2020 and thereafter the same was forwarded to the concerned District Authorities i.e. District Magistrate and Superintendent of Police, District Bareli, Uttar Pradesh, for their recommendation/verification, as required under the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968, (hereinafter referred to as the 'Act'). It has further been averred in the reply that District Magistrate Bareli, Uttar Pradesh vide letter dated 08.09.2021 (Annexure R-2), after having got conducted necessary inquiry through Superintendent of Police, not recommended the case of the petitioner for parole. In the aforesaid communication, it has been specifically stated that local police has raised objection for the temporary release, as there is apprehension that petitioner may abscond, if released on parole.
7. Having heard learned counsel appearing for the parties and perused material available on record vis-à-vis reasoning assigned in the impugned order Annexure P-2, we find that primarily prayer made on behalf of the petitioner for grant of parole has been rejected on the ground that in the event of petitioner ::: Downloaded on - 24/05/2022 20:05:23 :::CIS 5 being enlarged on parole, he may abscond. However, we are of the considered view that ground raised by the authorities for not granting parole to the petitioner is totally unreasonable and .
imaginary and as such cannot be accepted. The very purpose of granting parole is that prisoner is allowed to maintain family and social ties. For this purpose, he is to be released from Jail for some time so that he is able to maintain his family and social contact.
One of the objectives behind sentence and punishment is reformation of the convict. When we recognize reformation as one of the objectives, it provides justification for letting of even the life convicts for r short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems, but also to maintain their links with the society.
Hon'ble Apex Court as well as this Court in catena of cases have repeatedly held that the request for parole made on behalf of the prisoner is required to be considered sympathetically while applying humanistic approach.
8. In the case at hand, petitioner is behind the bars for more than eight years and five months and during this period he has been not even granted parole for once. Needless to say, a convict becomes entitled for parole after five years of his conviction spent in jail, but, interestingly, in the case at hand, prayer made on behalf of the petitioner for grant of parole is being sought to be rejected on flimsy ground as has been taken note herein above. No material worth credence has been led on record suggestive of the ::: Downloaded on - 24/05/2022 20:05:23 :::CIS 6 fact that in the event of petitioner's being enlarged on parole, there is likelihood of his fleeing from justice. District Magistrate while responding to the communication sent by office of DG (Prisons) has .
nowhere stated that past criminal record of petitioner is such that his release may endanger the society or he may specifically cause harm/injury, if any, to the family of the victims.
9. Since it stands duly established on record that the petitioner is permanent resident of Village Padmi, Post Office Ballia, Tehsil Baheri, Police Station Sheeshgarh, District Bareli, U.P. and his family resides on the given address, prayer made on behalf of the petitioner cannot be rejected that too on the ground raised by the police after verification. It is none of the case of the respondents that behaviour of the petitioner has been not found good during his stay in the jail and as such, we see no reason to not to grant parole to the petitioner for some time enabling him to meet his family and solve other domestic problems, if any.
10. In Asfaq Vs. State of Rajasthan and others, (2017) 15 SCC 55, the Apex Court considered various precedents in timeline with respect to parole/remission/premature release-
furlough and emphasized on reformation theory for granting opportunity to the convict to reform himself. It was observed that a convict must remain in jail for the period of sentence or for rest of his life in case he is a life convict. It is in this context that his release from jail for a short period has to be considered as an opportunity afforded to him not only to solve his personal and ::: Downloaded on - 24/05/2022 20:05:23 :::CIS 7 family problems, but also to maintain his links with society.
Convicts must also breathe fresh air for at least sometime, provided they maintain good conduct consistently during .
incarceration and show a tendency to reform. Relevant paragraphs of the judgment read thus:-
"17. From the aforesaid discussion, it follows that amongst the various grounds on which parole can be granted, the most important ground, which stands out, is that a prisoner should be allowed to maintain family and social ties. For this purpose, he has to come out for some time so that he is able to maintain his family and social contact. This reason finds r justification in one of the objectives behind sentence and punishment, namely, reformation of the convict. The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, albeit for (sic short) periods. These gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the good of the society, and, therefore, are in public interest.
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 ::: Downloaded on - 24/05/2022 20:05:23 :::CIS 8 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.
19 to 21 xxxxx xxxxx xxxxx xxxxx xxxxx
22. Another vital aspect that needs to be discussed is as to whether there can be any presumption that a person who is r convicted of serious or heinous crime is to be, ipso facto, treated as a hardened criminal. Hardened criminal 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 out rightly. 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 good conduct, habitual ::: Downloaded on - 24/05/2022 20:05:23 :::CIS 9 offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquility, etc. .
23. There can be no cavil in saying that a society that believes in the worth of the individuals can have the quality of its belief judged, at least in part, by the quality of its prisons and services and recourse made available to the prisoners. Being in a civilized society organized with law and a system as such, it is essential to ensure for every citizen a reasonably dignified life. If a person commits any crime, it does not mean that by committing a crime, he ceases to be a human being and that he can be deprived of those aspects of life which constitute human dignity. For a prisoner all fundamental rights are an enforceable r reality, though restricted by the fact of imprisonment. {See - Sunil Batra (2) v.
State (UT of Delhi) (1980) 3 SCC 488, Maneka Gandhi v. Union of India and another (1978) 1 SCC 248 and Charles Sobraj v. Superintendent Central Jail (1978) 4 SCC 104.
24. It is also to be kept in mind that by the time an application for parole is moved by a prisoner, he would have spent some time in the jail. During this period, various reformatory methods must have been applied. We can take judicial note of this fact, having regard to such reformation facilities available in modern jails. One would know by this time as to whether there is a habit of relapsing into crime in spite of having administered correctional treatment. This habit known as "recidivism" reflects the fact that the correctional therapy has not brought in the mind of the criminal. It also shows that criminal is hardcore who is beyond correctional therapy. If the correctional therapy has not made in itself, in a particular case, such a case can be rejected on the aforesaid ground i.e. on its merits."
11. In Shor Vs. State of Uttar Pradesh WP(Criminal) No.58 of 2020, decided on 05.08.2020, while considering ::: Downloaded on - 24/05/2022 20:05:23 :::CIS 10 Section 2 of the United Provinces Prisoners Release on Probation Act 1938, the Supreme Court held that merely repeating the fact that the crime is heinous and that release of such a person would .
send a negative message against the justice system in the society are factors de hors Section 2 of the Act. Relevant para of the judgment reads as under:-
"A reading of the order dated 22.01.2018 shows that the Joint Secretary, Government of U.P. has failed to apply his mind to the conditions of Section 2 of the U.P. Act. Merely repeating the fact that the crime is heinous and that release of such a person would send a negative message against the justice system in the society are factors de hors Section 2. Conduct in prison has not been referred to at all and the Senior Superintendent of Police and the District Magistrate confirming that the prisoner is not "incapacitated" from committing the crime is not tantamount to stating that he is likely to abstain from crime and lead a peaceable life if released from prison. Also having regard to the long incarceration of 29 years (approx.) without remission, we do not wish to drive the petitioner to a further proceeding challenging the order dated 22.01.2018 when we find that the order has been passed mechanically and without application of mind to Section 2 of the U.P. Act. In these circumstances, we set aside the aforesaid order and set the petitioners free. It will be open for the State Government to impose such conditions as are mentioned in Section 2 of the U.P. Act on the footing that the petitioners now stand released forthwith. The Writ Petitions stand allowed in the aforesaid terms."
12. In view of the above, the present petition is allowed.
Respondents are directed to release the petitioner- on parole for a period of 28 days after taking requisite personal and surety bonds.
However, before parting, it is clarified that in case the petitioner-
convict violates or breaches any condition of parole order, by threatening the family of the complainant or otherwise creating law ::: Downloaded on - 24/05/2022 20:05:23 :::CIS 11 and order problem, then it shall be a factor to cancel the parole so granted by this Court and shall also be a relevant factor for considering the future request of the convict made in this regard.
.
With these observations, the present petition is disposed of alongwith pending miscellaneous application(s), if any (Mohammad Rafiq) Chief Justice May 23, 2022 (Sandeep Sharma) (aks) Judge ::: Downloaded on - 24/05/2022 20:05:23 :::CIS