Himachal Pradesh High Court
Neelaghat Una (T) District Una vs State Of Rajasthan And Others on 19 May, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
.
ON THE 19TH DAY OF MAY, 2022
BEFORE
HON'BLE MR.JUSTICE MOHAMMAD RAFIQ
CHIEF JUSTICE
&
HON'BLE MR.JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION NO.5962 OF 2021
Between:-
SUNIL KUMAR @ CHARNA
S/O SH.NARINDER KUMAR,
AGED ABOUT 28 YEARS,
R/O VPO RAKKAR COLONY, TEHSIL
AND POLICE STATION UNA, DISTRICT
UNA, H.P. ADDRESS FOR PAROLE
WARD NUMBER 11 MOHALLA
NEELAGHAT UNA (T) DISTRICT UNA,
H.P. THROUGH SUPERINTENDENT OF
JAIL, CENTRAL JAIL NAHAN.
...... 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.
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2
4. THE SUPERINTENDENT OF JAIL,
MODEL CENTRAL JAIL NAHAN,
DISTRICT SIRMOUR, (H.P.)
......RESPONDENTS
.
( BY MR.ASHOK SHARMA, ADVOCATE
GENERAL WITH MR.SUDHIR BHATNAGAR,
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 27.08.2020 (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 27.08.2020.
2. For having bird's eye view, certain undisputed facts, which may be relevant for adjudication of the case at hand, are that the petitioner stands convicted and sentenced for life for commission of offence punishable under Sections 302, 120-B, 420 of the Indian Penal Code and Sections 25 & 27 of the Arms Act, 1959 vide judgment dated 27.03.2017, passed by Additional Sessions Judge-II, Una, District Una, in Sessions Trial No.II-VII-13, as a consequence of which the petitioner at present is lodged in Model Central Jail, Nahan, District Sirmaur, H.P. ::: Downloaded on - 20/05/2022 20:05:49 :::CIS 3
3. Petitioner has already undergone sentence of almost eight years and five months till date and during his stay in the jail, he has already earned two years one month and four days .
remission period. On 19.05.2020, vide Annexure P-1, petitioner applied for parole to Director General of Prisons & Correctional Services, Shimla, (hereinafter referred to as DG (Prisons). He stated in the application that he used to reside in rented house with family at EWS 218 Rakkar Colony, Tehsil and Police Station Una, District Una, H.P. and at present his brother and sister-in-law reside at Neelaghat, Ward No.11, Tehsil and Police Station Una, District Una, H.P. He stated that his brother, sister-in-law and sister are unable to meet him on account of poverty and as such he be granted parole for 28 days. However, vide communication dated 27.08.2020, issued under the signatures of DG (Prisons) petitioner was informed that his prayer for parole is rejected on account of non-recommendation by District Magistrate.
4. In the aforesaid background petitioner has approached this Court in the instant proceedings, praying therein for issuance of direction to DG (Prisons) to grant him parole for 28 days.
5. On 17.11.2021, this Court, having taken note of the averments made in the petition as well as address given by the petitioner in application (Annexure P-1) for parole, wherein he has categorically stated that his brother still resides in Una, directed respondents to make fresh verification about the address given by the petitioner. Pursuant to aforesaid direction, learned Additional ::: Downloaded on - 20/05/2022 20:05:49 :::CIS 4 Advocate General has made available communication dated 30.04.2022 received in the office of Advocate General from the office of Additional Director General Prisons & Correctional .
Services. Perusal of aforesaid communication, which is taken on record, clearly reveals that the matter was got inquired by Superintendent of Police, Una, District Una, H.P. through local police. As per report, Shri Anil Kumar, brother of the petitioner is permanent resident of Village Neelaghat, Ward No.11, Tehsil and Police Station, Una, District Una, H.P.
6. 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 he is not the permanent resident of Ward No.11, Neelaghat, Tehsil and Police Station, Una, District Una, H.P. Deputy Director General Prisons & Correctional Services vide communication dated 27.08.2020 (Annexure P-2), rejected the case of the petitioner for grant of parole on the ground that District Magistrate has not recommended his case. Perusal of communication dated 22.07.2020, issued under the signatures of District Magistrate, Una, District Una, H.P. to the DG (Prisons) clearly reveals that only reason and basis for not recommending the case by District Magistrate, Una is/was that as per report of Municipal Council and verification conducted by local police, petitioner was not found to be permanent resident of Una and his ::: Downloaded on - 20/05/2022 20:05:49 :::CIS 5 family was also not found living in the village. Apart from aforesaid reason, no other reason has been assigned by the authorities concerned while rejecting the prayer made on behalf of .
the petitioner for grant of parole. There is no adverse report, if any, given by District Magistrate as well as police authorities against the conduct of the petitioner. Ms.Harjinder Chadha, Vice President of Municipal Council, Una in her statement made to police has stated that he did not know about Sunil Kumar personally, but knows Ms.Ruchi, sister-in-law of Sunil Kumar as she is living in her parent's house.
7. Leaving everything aside, Superintendent of Police in compliance to order dated 17.11.2021 has already conducted fresh verification, wherein it has transpired that Shri Anil Kumar brother of the convict is permanent resident of village Neelaghat, Ward No.11, District Una, H.P.
8. Ms.Indu, Municipal Councilor Municipal Corporation, Ward No.11, Una, H.P. has categorically certified that Anil Kumar son of Narinder Kumar, is resident of Mohalla Neelaghat Ward No.11 and he had been living therein for the last four years alongwith his wife Ruchi and other family members.
9. Apart from above police has also collected Adhar Cards of Shri Anil Kumar and Ms.Ruchi, brother and sister-in-law. It is not in dispute that the petitioner is a life convict for his having allegedly committed offence punishable under Sections 302, 120- B, 420 IPC and 25 and 27 of Arms Act, but it is also not in dispute ::: Downloaded on - 20/05/2022 20:05:49 :::CIS 6 that for the last more than eight years he has been not granted parole on a single occasion. There is no report that release of the petitioner is likely to endanger the security of the State or the .
maintenance of public order. Since now it has been duly established on record that the petitioner is permanent resident of Una, his prayer made for grant of parole deserves to be considered.
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 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 ::: Downloaded on - 20/05/2022 20:05:49 :::CIS 7 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 r 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 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 ::: Downloaded on - 20/05/2022 20:05:49 :::CIS 8 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 r 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 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 ::: Downloaded on - 20/05/2022 20:05:49 :::CIS 9 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 r 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 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 ::: Downloaded on - 20/05/2022 20:05:49 :::CIS 10 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 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 19, 2022 (Sandeep Sharma) (aks) Judge ::: Downloaded on - 20/05/2022 20:05:49 :::CIS