Punjab-Haryana High Court
Ashok Kumar vs State Of Haryana And Others on 1 April, 2021
Equivalent citations: AIRONLINE 2021 P AND H 172
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
In The High Court for the States of Punjab and Haryana
At Chandigarh
CRWP-4781-2020 (O&M)
Date of Decision: 1.4.2021
Ashok Kumar ... Petitioner
Versus
State of Haryana and others ... Respondents
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
Present:- Mr. Hoshiar Singh Jaswal, Advocate for the petitioner.
Mr. Ramesh Kumar Ambavta, AAG, Haryana.
(Proceedings conducted through video conferencing)
* * * * *
GURVINDER SINGH GILL, J.
1. The petitioner assails order dated 10.2.2020 (Annexure P-1) passed by respondent No.1 declining the request made by the petitioner for grant of 1 of 14 ::: Downloaded on - 03-04-2021 02:32:01 ::: (2) CRWP-4781-2020 (O&M) parole for 4 weeks under provisions of Section 3(1)(d) of Haryana Good Conduct Prisoner's (Temporary Release) Act, 1988.
2. The petitioner stands convicted for having committed offence under Section 302, 412, 394, 323 IPC vide judgment dated 22.11.2003 passed by learned Sessions Judge, Faridabad in a case arising out of FIR No.331, dated 10.11.2001, Police Station Mujjesar, District Faridabad and has been sentenced to undergo life imprisonment. Although, the petitioner assailed the aforesaid judgment dated 22.11.2003 by filing an appeal in this Court i.e. CRA-216-DB-2004 but the same came to be dismissed vide judgment dated 5.10.2010 passed by this Court.
3. The petitioner moved an application for grant of parole for 4 weeks on the ground that his house needed repairs. The said application was forwarded by respondent No.2, Superintendent, District Jail, Faridabad to respondent No.3 for conducting verification. Respondent No.3 got the necessary verification conducted through police and other concerned officers wherein it was reported that house in question belongs to the petitioner and indeed needs to be repaired. However, his release was not recommended as it was reported that there is apprehension of breach of peace in the village, in case he is released on parole. On the basis of the said report submitted by Superintendent of Police, Palwal, the respondent No.3 District Magistrate did not recommend grant of parole, while also keeping in view the fact that the petitioner had earlier remained absconding for 9 years when he had been released on parole in the year 2005. Consequently, impugned order dated 10.2.2020 came to be passed.
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4. Learned counsel for the petitioner has assailed impugned order dated 10.2.2020 (Annexure P-1) on the ground that there is nothing adverse in the report as regards his conduct and that the State cannot adopt pick and choose policy in the matter of grant of parole and that there have been several other instances wherein persons who had absconded while availing parole had again been released on parole. The particulars of the said cases have been furnished in the petition as follows:
Sr. No. Name Case No.
1 Rajender s/o Shri Leela Krishan FIR No.505/2001
2. Janki Prasad s/o Shri Charan FIR No.46/1996 Singh
3. Brij Gopal s/o Badan Singh FIR No. 121/1999
4. Manoj s/o Shri Kheti Prasad FIR No.465/2007
5. Ramesh Chand s/o Shri Krishan FIR No. 123/2008 Chand
6. Ajay Jadeja s/o Shri Narpat Yadav FIR No. 299/2002
7. Pardeep son of Shri Baljeet FIR No. 231/2002
5. The State has filed reply wherein a stand has been taken that a prisoner cannot claim parole as a matter of right and that the same is just a concession extended to him on account of his good conduct. It is further the case of State that the petitioner falls in the category of 'hardcore prisoner', having committed an offence under Section 394 IPC and also having overstayed parole and absconding for a good 9 years, and as such had disentitled himself for grant of concession of parole.
6. I have considered rival submissions addressed before this Court.
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7. The matter pertaining to grant of parole to prisoners is governed by The Haryana Good Conduct prisoners (Temoprary Release) Act 1988( hereinafter referred to as the Act). The object of the Act reads as under:
"An Act to provide for temporary release of prisoners for good conduct on certain conditions"
8. The name as well as the object of the Act are suggestive of scheme of the Act that good conduct of a prisoner could earn him temporary release from prison. Before proceeding further, it will be beneficial to bear in mind the relevant provisions of the Act for release of prisoners on parole. There are two type of prisoners as per the Act i.e. a "prisoner" and a "hardcore prisoner". Section 2(d) of the Act which defines a "prisoner" reads as under:
2(d) 'prisoner' means a person confined in prison or jail or other institution of like nature under a sentence of imprisonment for life or imprisonment by any court in India or the Court martial or any other authority exercising the power of a Criminal Court;
9. Section 2(aa) of the Act which defines a "hardcore prisoner" reads as under:
2(aa) 'hardcore prisoner' means a person
(i) who has been convicted of -
(1) robbery under section 392 or 394 IPC;
(2) dacoity under section 395, 396 or 397 IPC;
(3) kidnapping for ransom under section 364A IPC;
4 of 14 ::: Downloaded on - 03-04-2021 02:32:13 ::: (5) CRWP-4781-2020 (O&M) (4) murder or attempt to murder for ransom or extortion under section 387 read with 302 or section 387 read with 307 IPC; (5) rape with murder under section 376 read with 302 IPC; (6) rape with a woman below sixteen years of age;
(7) rape as covered under section 376A, 376D or 376E IPC; (8) serial killing i.e. murder under section 302 IPC is two or more cases in different First Information Reports; (9) murder under section 302 IPC, if the offender is a contract killer as apparent from the facts mentioned in the judgment of the case;
(10) lurking house trespass or house breaking where death or grievous hurt is caused under section 459 or 460 IPC; (11) either of offence under sections 121 to 124A IPC; (12) immoral trafficking under section 3,4 or 5 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956) involving minors or under section 366A, 366B, 372 or 373 IPC; (13) offence under section 17(c) or 18(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985); or (14) offence under section 14 of the Protection of Children from Sexual Offences Act, 2012 (Central Act 32 of 2012);
(ii) who during a period of five years immediately before his conviction has earlier been convicted and sentenced for commission of one or more offences mentioned in Chapter XII or XVII of IPC, except the offences covered under Clause (i) above, committed on different occasions not constituting part of the same transaction and as a result of such conviction has undergone imprisonment at least for a period of twelve months:
Provided that while counting the period of five years, the period of actual imprisonment or detention shall be excluded:
5 of 14 ::: Downloaded on - 03-04-2021 02:32:13 ::: (6) CRWP-4781-2020 (O&M) Provided further that if a conviction has been set-aside in appeal or revision, then any imprisonment undergone in connection therewith shall not be taken into account for the above purpose; of
(iii) who has been sentenced to death penalty; or
(iv) who has been detected or using cell phone or in possession of cell phone/SIM card inside the jail premises; or
(v) who failed to surrender himself within a period of ten days from the date on which he should have so surrendered on the expiry of the period for which he was released earlier under this Act:
Provided that the State Government may, by notification include any offence in the list of offences mentioned above.
Explanation.- For the purposes of this section, "IPC means the Indian Penal Code, 1860 (Central Act 45 of 1860).
10. While Section 3 of the Act deals with the temporary release of 'prisoners' on certain grounds, Section 5A of the Act provides the temporary release of 'hardcore prisoners' which reads as under:
3- Temporary release of Prisoner on certain grounds : -
(1) The State Government may, in consultation with the District Magistrate or any other officer appointed in this behalf, by notification in the official Gazette and subject to such conditions and in such manner as may be prescribed, release temporarily for a period specified in sub-section (2), any prisoner, if the State Government is satisfied that-
(a) a member of the prisoner's family had died or is seriously ill or the prisoner himself is seriously ill; or
(b) the marriage of prisoner himself, his son, daughter, grandson, grand daughter, brother, sister, sister's son or daughter is to be celebrated; or
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(c) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation on his land or his father's undivided land actually in possession of the prisoner; or
(d) it is desirable to do so for any other sufficient cause. (2) The period for which a prisoner may be released shall be determined by the State Government so as not to exceed-
(a) where the prisoner is to be released on the grounds specified in clause (a) of sub-section (1), three weeks;
(b) where the prisoner is to be released on the ground specified in clause (b) or clause (d) of sub-section (1), four weeks; and
(c) where the prisoner is to be released on the grounds specified in clause (c) of sub-section (1), six weeks;
Provided that the temporary release under clause (c) can be availed more than once during the year, which shall not, however, cumulatively exceed six weeks.
(3) The period of release under this section shall not count towards the total period of the sentence of a prisoner.
(4) The State Government may, by notification, authorize any officer to exercise its powers under this section in respect of all or any other ground specified thereunder.
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 prisoner may be released on temporary basis to attend the marriage of his 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 escort for a period of forty eight hours, to be decided by the concerned superintendent of Jail. Provided further 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.
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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 penalty, may be entitled for temporary release or furlough only if he has completed his five years imprisonment and has not been awarded major punishment by the Superintendent of Jail as judicially appraised by the concerned District and Sessions Judge.
Provided that the five years 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.
11. It is evident from the scheme of the Act that stricter conditions apply for release of 'hardcore prisoners' on parole. The petitioner, by virtue of the offence committed by him i.e. section 394 IPC and also on account of having over-stayed parole for about 9 years, when he was earlier released on parole in 2005, would qualify to be called as 'hardcore prisoner', as per Section 2(aa) of the Act. The relevant provisions as extracted are from section 2(aa) are reproduced below:
"hardcore prisoner" means a person, -
(i) who has been convicted of -
(1) robbery under Section 392 or 394 IPC (2) to 14 - xxx
(ii) to (iv) - x x x
(v) who failed to surrender himself within a period of ten days from the date on which he should 8 of 14 ::: Downloaded on - 03-04-2021 02:32:13 ::: (9) CRWP-4781-2020 (O&M) have so surrendered on the expiry of the period for which he was released earlier under this Act;
12. Though the petitioner, being a 'hardcore prisoner' should have applied for temporary release under special provisions of section 5A of the Act but he has chosen to seek parole under provisions of section 3(1)(d) which are applicable to 'prisoners' and not to 'hardcore prisoners'. In any case, the Commissioner, Faridabad Division has taken notice of the fact that the petitioner is a 'hardcore prisoner'.
13. The learned counsel for the petitioner has, however, vehemently argued that even if the petitioner is considered as a 'hardcore prisoner' still by virtue of sub-section(2) of section 5A, the petitioner would be entitled to parole, as during the last 5 years of imprisonment has not been awarded any major punishment by Superintendent of Jail, as judicially appraised by concerned District and Sessions Judge. The learned counsel has further submitted that the effect of overstaying parole on an earlier occasion will not come his way as Rule 10 of The Haryana Good Conduct Prisoners(Temporary Release) Rules 2007(hereinafter referred to as The Rules) lays down the period during which the parole of such prisoner is not to be considered and that as per Rule 10, such prisoner who had overstayed parole for more than 30 days becomes entitled for parole after 2 years of the date of his surrender/arrest and since the petitioner had surrendered in the year 2014 which is more than 6 years back, therefore he cannot be denied parole.
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14. Since it is provision of sub-section (2) of Section 5A of the Act as well as Rule 10 of the Rules which are being relied upon by counsel for the petitioner, the same are extracted below for ready reference:
Section 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 ..... ..... .....
Provided ..... ..... .....
(2) Notwithstanding anything contained in sub section (1) a committed hardcore prisoner who has not been awarded penalty, may be entitled for temporary release or furlough only if he has completed his five years imprisonment and has not been awarded major punishment by the Superintendent of Jail as judicially appraised by the concerned District and Sessions Judge.
Provided ...... ..... .....
Provided ..... ..... .....
Rule 10- Consequences of overstay [Section 10(2)(d)] -
(i) if the convict overstays 15 days of his parole/furlough, his parole/furlough case shall not entertained by the Superintendent of Jail earlier one year from the date of the surrendered/arrest.
(i) if the convict overstays 30 days of his parole/furlough, his parole/furlough case shall not entertained by the Superintendent of Jail earlier two years from the date of the surrendered/arrest.
15. While several penal laws have been enacted to ensure maintenance of law and order wherein punishments ranging from imposition of fine to imprisonment for life and in some cases even sentence of death has been provided, the legislature being sensitive to human needs and requirements 10 of 14 ::: Downloaded on - 03-04-2021 02:32:13 ::: ( 11 ) CRWP-4781-2020 (O&M) has also enacted laws to provide for temporary release of prisoners under certain circumstances and conditions. For example - in case of a bereavement in the family or in case of marriage of the prisoner himself or of someone else in the immediate family or to attend to some agricultural activity etc. Section 5A of the Act, while imposing a bar in sub-section(1) for release of 'hardcore prisoners' on parole, also provides for some kind of exception in sub-section (2) where a 'hardcore prisoner' may be entitled on parole. However the word 'may' as existing in subs-ection (2) shows that it is a discretion with the authorities and not a matter of right which every 'hardcore prisoner' can claim. By virtue of Rule 10 of the Rules, in a case of overstay of parole for a period of more than 15 days on 30 days, a prisoner becomes entitled for entertainment of this application again for parole after one year or two years respectively. The right of 'entertainment' of an application cannot be confused with entitlement. It is for the authorities concerned to consider each case on merits individually and exercise discretion judiciously. In the instant case the factum of overstay of 9 years by the petitioner when he was earlier released on bail in the year 2005 reflects on his conduct. Rule 10 deals with cases of overstay for shorter periods of more than 15 days or 30 days. The authorities concerned can and infact should take into account the length of the period of over-stay and also as to whether such over-stay is in case of a 'prisoner' or a 'hardcore prisoner'. In the instant case the petitoner was already a 'hardcore prisoner' even before his over-stay as he had been convicted for an offence inder section 394 IPC.
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16. Though it has been submitted that in terms of sub-section (2) of Section 5A of the Act, it is only in case any major punishment imposed by Superintendent and appraised by District and Sessions Judge which can be take into account for disentitling him for parole and that since there is no such punishment was ever imposed by Superintendent, therefore he, in any case, is entitled for his release on parole, but this Court is unable to accept the aforesaid contention inasmuch as in the instant case he has been convicted by a Judicial Court i.e. by the Court of CJM Palwal in FIR 507 by dated 18.8.2005 u/s 8 and 9 of the Act on account of his overstay for 9 years wherein he was sentenced to undergo imprisonment which he had already undergone and was also imposed a fine of ₹ 700 vide judgement dated 25.2.2016. Such penalty of imprisonment and fine cannot be said to be a minor punishment. Further the act of overstay is something relatable to the conduct of petitioner during his imprisonment and is not just a misconduct committed outside the prison. In these circumstances the petitioner cannot claim that his conduct during the period of imprisonment has been above board. Such like conduct of over-stay is certainly required to be taken into account while considering the case of such 'hardcore prisoner' for his release on parole. It is a discretion to be exercised judiciously.
17. Another ground taken in the petition is that subsequent to the petitioner over-staying the parole and his re-arrest in 2014, he had been granted parole and had surrendered back in time and as such his absconding in the year 2005 can not now be taken into account. However, since the State, in its reply has clarified that the said parole which had been granted to him in the year 2018 to attend marriage of daughter was merely permission to attend 12 of 14 ::: Downloaded on - 03-04-2021 02:32:13 ::: ( 13 ) CRWP-4781-2020 (O&M) the marriage while in custody, the petitioner can not claim any advantage from the same to prove his good conduct.
18. The learned counsel for the petitioner also tried to build up a case of discrimination on the ground that some other identically situated prisoners have granted bail, but upon a query made by this Court to the learned counsel for the petitioner that as to whether in said instances also the period for which the convict absconded was as long as 8-9 years, the learned counsel for the petitioner fairly submitted that in the cited cases the period was not as long as is there in the instant case. Keeping in view the fact that the petitioner remained absconding for exceptionally long period of 9 years, he cannot claim the benefit of parole as a matter of right. Rather such like conduct disentitles him for grant of parole. This Court in 2018(4) RCR(Crl) 145 Sanjay - Petitioner vs. State of Haryana and others took note of overstaying of a prisoner for a period less than 2 years while dismissing a petition for release on parole. The relevant extract reads as follows:
"Moreover, the petitioner is not trustworthy because in the past he has absconded from the parole and furlough for a long period. He remained absconder from parole from 20.6.2007 to 13.11.2007 for a period of 4 months and 25 days then he was released on parole for four weeks for house repair on 12.5.2010 and was supposed to surrender on 10.6.2010 but was arrested on 30.11.2011 by the Police and then he remained absconder from parole from 10.6.2010 to 29.11.2011 for a period of 1 year, 05 months and 20 days. Every time FIR was registered against him. Moreover, the petitioner has already been termed as a 'hardcore prisoner'. Therefore, the application filed by him under Section 3(1)(b) of the Act is not maintainable because 13 of 14 ::: Downloaded on - 03-04-2021 02:32:13 ::: ( 14 ) CRWP-4781-2020 (O&M) there is a separate procedure prescribed for the hardcore prisoner to apply for parole."
19. A Division Bench of this Court in 2016(2) RCR(Crl) 1040 Vakil Raj vs. State of Haryana, has held that parole is not a right but a concession, which is extended on good conduct. Keeping in view the past conduct of the petitioner who had chosen to abscond for a long period of 9 years, there is certainly would be an apprehension that the petitioner, if granted parole, would again abscond and may not report back to undergo his remaining sentence.
20. Finding no merit in the petition, the same is hereby dismissed.
1.4.2021 ( GURVINDER SINGH GILL )
Mohan JUDGE
Whether speaking /reasoned Yes / No
Whether Reportable Yes / No
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