Himachal Pradesh High Court
Vijay Singh vs Of on 31 August, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
CWP No. 5289 of 2023
.
Decided on: 31st August, 2023
__________________________________________________________
Vijay Singh ....Petitioner
Versus
of
State of Himachal Pradesh and others
......Respondents
Coram rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
The Hon'ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? No.
For the petitioner: Mr. Shriyek Sharda, Advocate.
For the respondents: Mr. Anup Rattan, Advocate
General with Ms. Sharmila
Patial, Additional Advocate
General.
Ranjan Sharma, Judge (Oral)
The instant petition has been filed by the petitioner for grant of the following substantive reliefs:-
i). "That the respondents may very kindly be directed to grant parole for four months to the 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 06/09/2023 21:25:57 :::CIS -2-
petitioner, in a time bound manner, as per law laid down :
ii). That the respondents may kindly be directed to .
decide the application of petitioner for grant of parole in accordance with law and rules and considering the medical conditions of present petitioner.
2. FACTUAL MATRIX:
of 2(i). The factual matrix of the case is that the petitioner applied for temporary release on parole on rt 19.05.2023 on medical grounds for his surgery but the case of the petitioner was not recommended for parole by the Superintendent of Jail, Model Central Jail, Kanda, Shimla to the competent authority i.e. respondent No.2.
In this background petitioner had filed the instant writ petition praying for grant of parole for four months in a time bound manner.
3. STAND OF THE RESPONDENTS:
3(i) The matter was listed on 10.08.2023 and this Court issued notice to the respondent to file reply and the matter was directed to be listed on 31.08.2023.
Today, Ms. Sharmila Patial, learned Additional Advocate ::: Downloaded on - 06/09/2023 21:25:57 :::CIS -3- General has placed on record the instructions dated 30.08.2023, which are taken on record, with the averments .
that the petitioner is not entitled for parole on the ground mentioned therein.
4. We have heard Mr. Shriyek Sharda, Advocate, for the petitioner and Mr. Anup Rattan, Advocate General of assisted by Ms. Sharmila Patial, Additional Advocate General for the respondents/State and have gone through rt the records carefully.
5. At the very outset, we point out that as per the instructions dated 30.08.2023 (supra) the petitioner has applied for temporary release on parole for 28 days on medical grounds for undergoing his surgery w.e.f.
10.09.2022 to 07.10.2022 (Annexure B to instructions) but on expiry of this parole period, the petitioner failed to surrender before the jail authorities on 8.10.2022 and he absconded/over-stayed the parole by 10 days till 18.10.2022. In view of his conduct, proceedings under Section 8/9 of the Himachal Pradesh Good Conduct (Temporary Release) Act, 1968 were registered and the ::: Downloaded on - 06/09/2023 21:25:57 :::CIS -4- same are pending before the learned Chief Judicial Magistrate, Shimla, (H.P). So far as the medical exigencies .
are concerned, records point out that the petitioner had refused to undergo surgery for reasons known to him.
However, the Jail Authorities have taken care of the petitioner by referring him to Medical Officer at of IGMC Hospital, Shimla for his regular check-up/treatment as and when required. In addition to this, a perusal of rt Annexure A dated 24.08.2023, annexed to the instructions dated 30.08.2023 reveals that petitioner has been convicted in nine other cases and the sentence in these cases, will commence after the expiry of one after the other. The details of cases against the petitioner as spelt out in Annexure-A, are mentioned hereinbelow:-
Sr. Case No./Under Section/Date of Sentence Detail. No. sentence
1. Case No.94-3/19/18, U/s 138 of NI 2 years. Comp.
Act, D.O.S. 28.12.2019 Amount
Rs.6,00,000/- I/D
06 Months
2. Case No. 95-3/19/18, U/s 138 of NI 2 years. Comp.
Act, D.O.S. 28.12.2019 Amount
Rs.6,00,000/- I/D
06 Months
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-5-
3. 98-3/19/18,U/s 138 of NI Act, D.O.S. 2 years. Comp.
28.12.2019 Amount
Rs.8,00,000/- I/D
06 Months
.
4. 99-3/19/18, U/s 138 of NI Act, D.O.S. 2 years. Comp.
28.12.2019 Amount
Rs.15,00,000/- I/D
06 Months
5. 111/3 of 2016, U/S 138 of NI Act, 1 year. Comp.
D.O.S. 09.03.2020 Amount
Rs.3,25,000/- I/D
01 Month
of
6. 111/3 of 2019/2016 U/S 138 of NI 1 year. Comp.
Act, D.O.S. 09/03/2020 Amount
Rs.1,00,000/- I/D
01 Month
7. 69/3 of 2018, U/S 138 of NI Act, 1
rt year. Comp.
D.O.S. 9.3.2020 Amount
Rs.9,00,000/- I/D
01 Month
8. 114/03 of 2019/16, U/S 138 of NI 2 years. Comp.
Act, D.O.S. 5.3.2021 Amount
Rs.4,50,000/- I/D
06 Months
9. 182/3 of 14/20212, U/s 138 of NI 2 year. Comp.
Act, D.O.S. 10.03/2021 Amount
Rs.6,00,000/- I/D
06 Months
6. A glance at Annexure A (supra) reveals that the petitioner is a habitual offender and he owes an amount of Rs.58,70,000/- and interest thereon to various persons.
On query, the learned counsel for the petitioner admits that majority of the amount(s) are yet to be paid. Since, huge amount is payable by the petitioner therefore, there is every ::: Downloaded on - 06/09/2023 21:25:57 :::CIS -6- likelihood that the petitioner may jump the parole or may endanger public order so as to settle his personal scores.
.
7. While dealing with the issue of grant of parole to a convict the Hon'ble Apex Court in Asfaq vs. State of Rajasthan and others, (2017) 15 Supreme Court Cases 55, has held as under:
of "11. There is a subtle distinction between parole and furlough.
A parole can be defined as conditional release of rt prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporarily on some basic grounds. In that eventuality, it is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact.
Release on parole is designed to afford some relief to the prisoners in certain specified exigencies. Such paroles are normally granted in certain situations some of which may be as follows:
(i) a member of the prisoner's family has died or is seriously ill or the prisoner himself is seriously ill; or
(ii) the marriage of the prisoner himself, his son, daughter, grandson, grand daughter, brother, sister, sister's son or daughter is to be celebrated; or
(iii) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation of his land or his father's undivided land actually in possession of the prisoner; or ::: Downloaded on - 06/09/2023 21:25:57 :::CIS -7-
(iii) it is desirable to do so for any other sufficient cause;
(iv) parole can be granted only after a portion of sentence is already served;
.
(v) if conditions of parole are not abided by the parolee he may be returned to serve his sentence in prison, such conditions may be such as those of committing a new offence; and
(vi) parole may also be granted on the basis of aspects related to health of convict himself.
xxx... xxx.... xxx... xxx...
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15. A convict, literally speaking, must remain in jail for the period of sentence or for rest of his life in case he is a life rt 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 family problems but also to maintain his links with society. Convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens. Thus, redemption and rehabilitation of such prisoners for good of societies must receive due weightage while they are undergoing sentence of imprisonment.
xxx... xxx.... xxx... xxx...
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 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 ::: Downloaded on - 06/09/2023 21:25:57 :::CIS -8- 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, al beit for 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, of therefore, are in public interest.
18. The provisions of parole and furlough, thus, provide for a humanistic approach towards those lodged in jails. Main rtpurpose 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.
19. Having noted the aforesaid public purpose in granting parole or furlough, ingrained in the reformation theory of sentencing, other competing public interest has also to be kept in mind while deciding as to whether in a particular case parole or furlough is to be granted or not. This public interest also demands that those who are habitual offenders and may have the tendency to commit the crime again after their release on parole or have the tendency to become threat to the law and order of the society, should not be released on parole. This aspect takes care of other objectives of sentencing, namely, deterrence and ::: Downloaded on - 06/09/2023 21:25:57 :::CIS -9- prevention. This side of the coin is the experience that great number of crimes are committed by the offenders who have been put back in the street after conviction. Therefore, while deciding as to whether a particular .
prisoner deserves to be released on parole or not, the aforesaid aspects have also to be kept in mind. To put it tersely, the authorities are supposed to address the question as to whether the convict is such a person who has the tendency to commit such a crime or he is showing tendency to reform himself to become a good citizen.
xxx... xxx... xxx...
of
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 rtfacto, 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 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 good conduct, habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and ::: Downloaded on - 06/09/2023 21:25:57 :::CIS
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tranquillity 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 of dignity. For a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. {See - Sunil Batra (II) v. Delhi rt Administration (1980) 3 SCC 488, Maneka Gandhi v.
Union of India and Another (1978) 1 SCC 248, and Charles Sobraj v. Superintendent Central Jai, Tihar, New Delhi (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."
(Underlining Ours)
8. While dealing with the issue as to whether a convict who has absconded or had jumped parole or had ::: Downloaded on - 06/09/2023 21:25:57 :::CIS
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overstayed parole or had violated the conditions of parole order can seek parole; this Court has held in CWP No. 1775 .
of 2023 titled as Jagat Singh vs. State of Himachal Pradesh and others, decided on 02nd August, 2023 then in CWP No. 1774 of 2023 titled as Balvinder Singh vs. State of Himachal Pradesh and others, decided on of 17th August, 2023, and in CWP No.468 of 2023 titled as Kapil Dev @ Kaplu vs. State of Himachal Pradesh and rt others, decided on 10th March, 2023 that the parole cannot be claimed as a matter of right. The right of any convict to breathe fresh air is subject to the good conduct and behavior of the convict in jail and also outside. In this background, in the instant case, the petitioner had absconded/overstayed parole by 10 days on earlier occasion which speaks volumes of his indecent and unwarranted behaviour and conduct and his intention not to opt for reformation in accordance with the mandate of the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968.
9. Before parting with the case, we find that in ::: Downloaded on - 06/09/2023 21:25:57 :::CIS
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prayer clause the petitioner has prayed for parole for four months, which in any manner does not fall within the .
ambit of the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968, whereby the maximum admissible period for parole depending on the facts and circumstances of each case is limited to 42 days only. Even of on this ground the instant writ petition does not stand the test of judicial scrutiny and is accordingly dismissed.
10. rt CONCLUSION AND DIRECTIONS:
In view of the above discussion, the instant writ petition is devoid of any merit and is dismissed; except to the extent here-in-below:-
(i) Non-recommendation of case of the petitioner for parole, on his application dated 19.05.2023, by the Superintendent of Jail, Model Central Jail, Kanda, Shimla, for parole is upheld.
(ii). Needless to say that in case the petitioner moves a fresh application for parole in accordance with the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 and the Rules framed ::: Downloaded on - 06/09/2023 21:25:57 :::CIS
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thereunder, the authorities shall consider his case for grant of parole in case the petitioner shows his bonafides by paying .
atleast 30% of the balance payable amount and also execute a bond that in case he violates the conditions of parole or indulgences in either the commission or abetting of any offence then, such parole of shall stand automatically cancelled, entailing action in accordance with law. rt
(iii). The Superintendent of Jail, Model Central Jail, Kanda, Shimla, shall extend appropriate medical assistance to petitioner, from time to time.
The instant writ petition is dismissed in the aforesaid terms. Pending application(s), if any, are also disposed of.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) Judge August 31, 2023 (TM) ::: Downloaded on - 06/09/2023 21:25:57 :::CIS