Himachal Pradesh High Court
Lucky vs State Of Himachal Pradesh & Others on 20 May, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 2640 of 2024
Date of Decision: May 20, 2024
Lucky ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
The Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1
For the Petitioner: Mr.Karan Kapoor, Advocate.
For the Respondents: Mr.Sanjay Dutt Vasudeva, Deputy Advocate General.
Vivek Singh Thakur, J.
Petitioner, by invoking the provisions of Article 226 of the Constitution of India, has approached this Court seeking direction to the respondents to release the petitioner on parole for 42 days with further prayer to quash the rejection of prayer of petitioner for releasing him on parole communicated to him vide letter dated 8.1.2024 (Annexure P-3).
2. Petitioner, being convict is serving his sentence for execution/implementation of judgment dated 17.12.2013 passed by Sessions Judge, Kullu, District Kullu, H.P., in Sessions Trial No.112/13 in case FIR 1 Whether reporters of the local papers may be allowed to see the judgment? 2 No.59/2023, registered under Sections 376-D, 392 and 34 of Indian Penal Code in Police Station Manali, District Kullu, Himachal Pradesh, whereby he has been convicted and sentenced to undergo rigorous imprisonment for a period of 20 years and to pay fine of `15,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of three years.
3. In response to petition, respondents have placed on record the instructions dated 1.5.2024 alongwith documents. In Custody Certificate, placed on record with instructions, it has been stated that petitioner has undergone total sentence for 10 years, 04 months and 14 days, excluding remission, as on 30.4.2024, after deducting the parole period i.e. 15 days.
4. It has been stated in instructions that the applicant had applied for temporary release on parole on 21.9.2023 to meet his family members and his request was forwarded to the District Authorities, i.e. District Magistrate and Superintendent of Police Kullu, Himachal Pradesh, for recommendations/ verification report as required under the provisions of H.P. Good Conduct Prisoners (Temporary Release), Act, 1968 and Rules framed thereunder.
5. According to respondents, parole case of petitioner, after conducting the necessary inquiry, was not recommended by the District Magistrate, Kullu, on the ground that the convict is serving the sentence for commission of gang rape and that the victim is a foreign resident who is currently abroad and cannot be contacted, making it impossible to obtain her approval or disapproval for convict's parole. It has further been reported that the convict is not permanent resident of the area, as per 3 statement of the Pradhan of the Panchayat concerned, and that the convict is originally from Nepal and has been residing in Solang Nala for the past 15-20 years. Therefore, keeping in view the nature of crime committed by petitioner and non-recommendation report of the concerned District Magistrate, parole application of the petitioner was rejected on 8.1.2024.
6. It has been further submitted by learned counsel for petitioner as also stated in instructions dated 01.05.2024, that earlier on filing CWP No. 1014 of 2023, titled Lucky vs. State of HP, by the petitioner, vide order dated 3.4.2023 passed therein, a Coordinate Bench of this High Court had directed the release of the petitioner on parole for a period of 15 days and petitioner was released on parole accordingly. It has further submitted that petitioner had surrendered before the Jail Authorities on completion of the parole period and during that period, no adverse incident or report had been complained or reported against the petitioner.
7. Learned counsel for the petitioner for allowing the application, has placed reliance on the pronouncements of the Supreme Court as well as coordinate Bench of this High Court in Asfaq Vs. State of Rajasthan and others (2017) 15 SCC 55; judgment dated 16.10.2023 passed in CWP No. 5965 of 2023, titled as Retaish Kumar Vs. State of H.P. & others; judgment dated 9.10.2023 in CWP No. 6562 of 2023, titled as Pushap Raj Vs. State of H.P. & others; judgment dated 23.5.2023 passed in CWP No. 1710 of 2023, titled as Bihari Lal Vs. State of H.P. & others; judgment dated 23.7.2021 passed in CWP No. 3516 of 2021, titled as Virender Kumar @ 4 Bindu Vs. State of H.P. and others; and submitted that for similar circumstances petitioner is also entitled for release on parole and rejection of his application on the alleged apprehension of the State is not sustainable in absence of any material to substantiate the same, particularly when petitioner, at earlier point of time, while on parole, has not violated terms of his temporary release on parole.
8. Learned Additional Advocate General on the basis of instructions placed on record, has failed to point out any material to substantiate the plea for which parole application of the petitioner has been rejected, particularly in absence of any such incident while petitioner was on parole at previous occasion.
9. Parole application was preferred by petitioner to meet his family members. As provided under Section 3 (d) of the Act, maximum period for release on parole on this ground is four weeks.
10. Taking into consideration material placed before us and pronouncements referred hereinabove, in peculiar facts and circumstances of the present case, we are of the view that parole application filed by the petitioner has been rejected wrongly and erroneously.
11. Therefore, we set aside the rejection of the parole application filed by the petitioner referred in present matter, which was communicated to the petitioner vide communication dated 8.1.2023.
12. Accordingly, respondents are directed to extend benefits of parole to the petitioner for a period of 15 days on his furnishing personal 5 bond in the sum of `1,00,000/- with two sureties in the sum of `50,000/- each to the satisfaction of Superintendent Jail, Model Central Jail, Nahan, District Sirmaur, H.P. The petitioner shall surrender before Superintendent of Jail, Model Central Jail, Nahan, District Sirmaur, H.P., immediately on expiry of 15 days of parole.
13. For extending benefit of parole, requisite appropriate order shall be issued by competent authority in accordance with law within 10 days from today. However, the petitioner's parole shall be liable to be cancelled in case he breaches any of the conditions of parole order and/or creates law and order problem, which shall be treated as a negative factor for consideration of his similar prayers in the future.
The instant writ petition is allowed in the aforesaid terms. Pending application(s), if any, are also disposed of.
(Vivek Singh Thakur), Judge.
(Rakesh Kainthla), Judge.
May 20, 2024 (Purohit) Digitally signed by SUBHASH CHAND DHIMAN SUBHASH DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU= HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 3418061207364d8c002725dfc58ff116f678c3d39289db29b992cce 875905119, PostalCode=171001, S=Himachal Pradesh, CHAND SERIALNUMBER= 5ce240fac0e1267843f29509683d09a9912af10edc4e6cd2ed5d4a 8c30134c1b, CN=SUBHASH CHAND DHIMAN Reason: I am the author of this document DHIMAN Location:
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