Himachal Pradesh High Court
Deepak Verma vs Director General Of Prisons on 30 June, 2020
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CRMMO No.191 of 2020 Date of Decision : June 30, 2020 .
Deepak Verma ....Petitioner
Versus
Director General of Prisons, Himachal Pradesh and another ....Respondent.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? Yes.
For the Petitioner : Ms Sheetal Vyas, Advocate, through Video Conferencing.
For the respondent : Mr. Shiv Pal Manhans, Additional r Advocate General, Mr. R.P. Singh, Mr. Raju Ram Rahi & Mr. Gaurav Sharma, Deputy Advocates General, through Video Conferncing.
Vivek Singh Thakur, Judge Petitioner, in the instant petition, is a life convict in a case under Sections 302, 323 & 34 of Indian Penal Code (hereinafter for short 'IPC') and Section 27 of the Arms Act and is serving his sentence in Lala Latpat Rai District & Open Air Correctional Home, Dharamshala, Himachal Pradesh (hereinafter referred to as 'Jail').
2. The petitioner was temporarily released on parole for 42 days, vide order dated 8.5.2020, issued by the Deputy Superintendent of the Jail, with direction to report back to the Superintendent of Jail, on 21.7.2020, before Lock-Up. ::: Downloaded on - 04/07/2020 20:20:56 :::HCHP CRMMO No.191 of 2020
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3. Petitioner has approached this Court, by way of present petition, seeking relief to extend his parole leave for sixty days more, on the ground that he has completed about .
17 years of imprisonment and on account of good conduct he has been permitted to work outside the Jail and, thus, before pandemic he had been working as Goldsmith in a shop and also as a Tutor of students, under the authorized scheme to work outside the Jail. According to the petitioner, he was granted parole leave due to COVID-19 and in the past he had never misused his liberty, while working outside the Jail or during the parole leave granted in five years.
4. It is case of the petitioner that he got married during the period of conviction and now is father of a 1½ year old daughter and that there is nobody to look-after his wife and kid, and further that he owns agricultural land, but there is none to work thereupon and there is no other source of income of his family and due to COVID-19 and small child, his wife is unable to work and also that due to COVID-19, no other work except working on agricultural land is available to the petitioner outside the Jail and now the agricultural activity is the only source to maintain his family and, thus, he has applied to the Director General of Prisons for extension of parole leave, but no information has been ::: Downloaded on - 04/07/2020 20:20:56 :::HCHP CRMMO No.191 of 2020 ...3...
received by him till filing of the present petition and apprehending rejection of his application, he has approached this Court.
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5. Lastly, it is canvassed that in view of CORONA Pandemic, the Supreme Court has also favoured decongestion of Jails and, thus, praying for taking lenient view, extension of 60 days of parole leave has been advocated.
6. In the State of Himachal Pradesh, temporary release of prisoners for good conduct, on certain conditions, is governed by Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 (hereinafter referred to as 'Act'). In the Act temporary release of prisoners has been provided in Sections 3 and 4. Temporary release under Section 3 is commonly known as 'Parole', extension whereof is being sought by the petitioner, whereas Section 4 provides temporary release of prisoners on furlough, which is not in issue in present case.
7. Section 3(1) of the Act provides temporary release of prisoners on certain grounds for a period specified in Section 3(2) of the Act, if the Government is satisfied that:
(a) a member of the prisoner's family has died or is seriously ill; or ::: Downloaded on - 04/07/2020 20:20:56 :::HCHP CRMMO No.191 of 2020 ...4...
(b) the marriage of the prisoner's son or daughter is to be celebrated; or
(c) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting .
or carrying on any other agricultural operation on his land and no friend of the prisoner or a member of the prisoner's family is prepared to help him in this behalf in his absence; or
(d) it is desirable so to do for any other sufficient cause.
8. Clause (c) of Section 3(1) provides temporary release of prisoners for agricultural operations, where prisoner has no friend or a member of family prepared to help him in this behalf in his absence. According to Section 3(2)(c), the prisoner, who is to be released on the ground specified in Section 3(1)(c) of the Act, i.e. for agricultural operations, may be released for a period of not exceeding six weeks, i.e. 42 days.
9. In response to the notice, respondent No.1 Director General of Prisons & Correctional Services, Himachal Pradesh [in short 'DGP(P)], has imparted instructions to the Advocate General alongwith copy of Radio Wireless Message, dated 10.6.2020, communicating rejection of request of petitioner for extension of parole. Copy of such information, conveying rejection of extension request, has also been endorsed to the petitioner. Instructions, alongwith communication of rejection, have been taken on record. ::: Downloaded on - 04/07/2020 20:20:56 :::HCHP CRMMO No.191 of 2020
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10. It is submitted in the instructions that the petitioner was released on parole w.e.f. 9.5.2020 to 20.6.2020, for 42 days, and he was under obligation to .
surrender on 21.6.2020, but till the date of imparting instructions, dated 26.6.2020, he had not surrendered and further that by not surrendering despite rejection of his application dated 4.6.2020 moved for extension of his parole for 42 days, he has committed the prison offence, under Section 9 of the Act.
11. It has specifically been stated in the instructions that considering the lower vulnerability of people of Himachal Pradesh to COVID-19, Government of Himachal Pradesh has resumed inter-district movement of people and public/private transport w.e.f. 1.6.2020, and the Offices of the Government are also working in full strength and all the Jails of Himachal Pradesh are safe and no case of COVID-19 has been reported so far and the Department is taking full precautions for protection of prisoners and prison staff and, thus, there is no merit in the application for extension.
12. It appears from the contents of instructions, imparted by DGP(P), that request before him for extension of parole was for 42 days only that too on the basis of spread of COVID-19, whereas in present petition, petitioner has prayed ::: Downloaded on - 04/07/2020 20:20:56 :::HCHP CRMMO No.191 of 2020 ...6...
for extension of 60 days for carrying out agricultural operations.
13. From contents of release order, dated 9.5.2020 .
(Annexure A-1), read with provisions of Section 3 of the Act, it appears that the petitioner has been released for carrying out agricultural operations, as he has been released temporarily, i.e. on parole, for maximum period of six weeks, as available for release to carry out agricultural operations.
14. There is no provision for extension of parole period beyond the period prescribed under Section 3(2) of the Act. Therefore, after expiry of the period of parole, which is maximum in the present case, petitioner is supposed to surrender before the Jail authorities. There is no bar for filing successive and subsequent application for temporary release on parole for agricultural purpose or any other purpose. Section 3(1)(d) provides temporary release, if it is desirable to do so for 'any other sufficient cause', but under this clause maximum period of temporary release, as provided in Section 3(2)(b) of the Act is four weeks. In any case, 'sufficient cause' is to be assessed by the concerned authority as it is an act to be performed by the competent authority under the Act.
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15. Dealing with a case of parole under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA Act), the .
Apex Court, in Poonam Lata v. M.L. Wadhawan & another, (1987) 3 SCC 347, has held that the Court has no power to substitute its opinion to the administrative functions, like abridging or enlarging the detention and it would not be open to the Court to reduce the period of detention by admitting a detenu on parole, rather the only power which is available to the Court is, to quash the order in case it is found to be illegal and the Court would have no jurisdiction either under the Act or under general principle of law or in exercise of extraordinary jurisdiction, whether it is under Article 226 or Article 32 of the Constitution to deal with the duration of period of detention. The same principle will be applicable with respect to the question of determining the period of parole which is governed by specific Act.
16. In another case of parole under the COFEPOSA Act itself, in Sunil Fulchand Shah v. Union of India & others, (2000) 3 SCC 409 (hereinafter referred to as), the Apex Court has held that parole, stricto sensu, may be granted by way of a temporary release as contemplated under the COFEPOSA Act by the Government of its functionaries, in accordance ::: Downloaded on - 04/07/2020 20:20:56 :::HCHP CRMMO No.191 of 2020 ...8...
with the parole rules or administrative instructions framed by the Government and this function is administrative in character and shall be subject to the terms of the rules or .
the instructions, as the case may be, and, therefore, for securing release on parole, a detenu has, therefore, to approach the concerned authorities or the jail authorities for grant of parole which shall be subject to terms and conditions imposed by the concerned authority as per law. It is further held that Courts cannot, generally speaking, exercise the power to grant temporary release to detenus, on parole, and temporary release of a detenu can only be ordered by the Government or an officer subordinate to the Government, whether Central or State. It is also clarified by the Supreme Court that bar of judicial intervention to direct temporary release of detenu would not affect the jurisdiction of High Court under Article 226 of the Constitution or of the Supreme Court under Article 32, 136 or 142 of the Constitution to direct temporary release of detenu, where request of detenu to be released on parole for a specified reason and/or for a specified period, has been, in opinion of the Court, unjustifiably refused or where in the interest of justice such an order of temporary release is required to be made, but it has been observed that such jurisdiction, ::: Downloaded on - 04/07/2020 20:20:56 :::HCHP CRMMO No.191 of 2020 ...9...
however, has to be sparingly exercised by the Court and even when it is exercised, it is appropriate that Court leave it to the administrative or jail authorities to prescribe the .
conditions and terms on which parole is to be availed of by the detenu.
17. In Asfaq v. State of Rajasthan & others, (2017) 15 SCC 55, explaining object of release on parole, it has been observed 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 come out for some time so that he is able to maintain his family and social contact, with objective of reformation of the convict. It has further been observed that provisions of parole and furlough, thus, provide for a humanistic approach towards those lodged in jails, and the 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, and even citizens of this country have a vested interest in preparing offenders for successful re-entry into society. The Court also observed that 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 ::: Downloaded on - 04/07/2020 20:20:56 :::HCHP CRMMO No.191 of 2020 ...10...
resources, have a significantly higher chance of failure, and that when offenders revert to criminal activity upon release, they frequently do so because they lack hope of merging .
into society as accepted citizens and furloughs or parole can help prepare offenders for success in merger in the society, and the public purpose in granting parole or furlough, ingrained in the reformation theory of sentencing, alongwith other competing public interests, has also to be kept in mind while taking decision of granting or refusing parole or furlough and further that all prisoners are not appropriate for grant of furlough or parole as the society must isolate those who show patterns of preying upon victims. It is also observed that formulation of guidelines/enactment of law on parole by various State Governments is in order to bring out objectivity in the decision making and to decide appropriately as to whether parole needs to be granted in a particular case or not and such a decision should be taken in accordance with guidelines framed or statute enacted.
18. Where there is statute providing provision of release of convict on parole, the scope of intervention by the Court is limited to judicial review of grant or refusal of parole under Article 226 or 32 of the Constitution, as the case may be. It is obvious for the reason that grant or refusal of parole ::: Downloaded on - 04/07/2020 20:20:56 :::HCHP CRMMO No.191 of 2020 ...11...
or furlough is an administrative function of Government or the competent authority prescribed under relevant Act, Rules, Regulations or Guidelines and, normally, the Court .
should not enter in shoes of such authority to perform administrative function. However, at the same time, the Courts are there for judicial review of omission and/or commission of the authority, warranting judicial interference of the Court on various valid grounds, like failure in performing duty; arbitrary exercise of power or acting beyond legal powers, etc.
19. In present case, petition has been preferred for extension of parole leave, which is purely an administrative function to be performed by the concerned authority in accordance with the Act and the Rules framed thereunder. So far rejection of application of petitioner is concerned that has not been assailed herein. Neither prayer has been made nor any material is available on record so as to adjudicate the legality of the order passed by the authorities, rejecting the application of the petitioner for extension of parole. Application for extension of parole period and order of rejection thereof have not been placed on record either by the petitioner or by the respondent.
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20. Under Section 3 of the Act, in all eventualities, highest period of parole is in case of temporary release for carrying on agricultural operations, which is six weeks and in .
all other cases the maximum period is either two weeks or four weeks. Petitioner has availed maximum period of parole, i.e. six weeks available for carrying out agricultural operations. Two parole periods available, under different clauses of Section 3(1) of the Act, may also be clubbed and period of parole provided under Section 3(2) of the Act may either be clubbed or added or may be coincided and run concurrently, depending upon prevailing circumstances.
21. In present case, as a matter of fact, parole granted to the petitioner stands expired on 20.6.2020 and he was under obligation to surrender on 21.6.2020 but he has not done so. Learned counsel for the petitioner submits that there was a sufficient cause, including filing of the present petition, for not surrendering on specified date and also petitioner was waiting for decision on his application for extension of parole as he has never received rejection order dated 10.6.2020.
22. Section 8 of the Act provides that on expiry of the period for which a prisoner is released under this Act, the prisoner shall surrender himself to the Superintendent of Jail ::: Downloaded on - 04/07/2020 20:20:56 :::HCHP CRMMO No.191 of 2020 ...13...
from which he was released. Section 8(2) of the Act provides ten days further time to the prisoner to surrender before the Superintendent of Jail and, thereafter, on failure to surrender .
within ten days, his arrest by any Police Officer, without warrant and remand to undergo the unexpired portion of his sentence. Section 8(3) of the Act provides that in case prisoner surrenders himself to the Superintendent of Jail within a period of ten days of the date on which he was to surrender and satisfies the Superintendent of Jail that he was prevented by any sufficient cause from surrendering himself immediately on the expiry of period for which he was released, penalty may not be imposed upon him. On failing to make out a sufficient cause for delayed surrendering, after affording him reasonable opportunity of being heard, penalty can be imposed upon petitioner, as provided in the Act. Therefore, reason for not surrendering by the petitioner, on due date, is to be explained satisfactorily to the Superintendent of Jail from which he has been released and he, not only is having liberty and is under obligation but also is entitled to render explanation for delayed surrender, as per statutory provisions. Thus, the petitioner has to immediately surrender himself to the Superintendent of Jail concerned and follow the procedure, as provided in the Act. ::: Downloaded on - 04/07/2020 20:20:56 :::HCHP CRMMO No.191 of 2020
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In view of the provisions of law and ratio laid down by the Supreme Court, I find no merit in present petition and, thus, rejecting the prayer of the petitioner, it is .
disposed of, with direction to the petitioner to immediately surrender before the jail authorities, with liberty to the petitioner to renew his request for parole, with justifiable reasons as available to him, as per provisions of law, as applicable and in case of receiving such request of the petitioner, the authority concerned is directed to consider the same sympathetically and compassionately without being influenced by the observations made in this judgment and also without being annoyed by the filing of the present petition, but considering the request and facts and circumstances stated therein, purely on its own merit.
( Vivek Singh Thakur )
June 30, 2020(sd) Judge.
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