Himachal Pradesh High Court
In District Jail Dharamshala vs State Of on 4 January, 2022
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 4th DAY OF JANUARY, 2022
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
.
&
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
CIVIL WRIT PETITION NO. 8034/2021
BETWEEN:
DINESH KUMAR, AGED 26 YEARS
S/O SHABO RAM
R/O GUGA SALOH,
TEHSIL AND POLICE STATION PALAMPUR,
DISTRICT KANGRA (HP),
PRESENTLY UNDERGOING HIS SENTENCE
IN DISTRICT JAIL DHARAMSHALA,
DISTRICT KANGRA, HIMACHAL PRADESH.
....PETITIONER
(BY MS. SHEETAL VYAS, ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH,
THROUGH PRINCIPAL SECRETARY (HOME),
TO THE GOVERNMENT OF HIMACHAL PRADESH,
H.P SECRETARIAT, CHOTA SHIMLA,
SHIMLA-1,H.P.
2. DIRECTOR GENERAL OF PRISONS,
HIMACHAL PRADESH,
BLOCK NO. 31, SDA COMPLEX KASUMPTI,
SHIMLA-9.
3. DEPUTY COMMISSIONER KANGRA,
DISTRICT KANGRA DHARAMSHALA,
DISTRICT SUPERINTENDENT OF JAIL,
KANGRA, HIMACHAL PRADESH.
...RESPONDENTS
(MR. ASHOK SHARMA, A.G.
WITH MR. RAJINDER DOGRA,SR. ADDL. A.G.,
MR. SHIV PAL MANHANS &
MR. VINOD THAKUR, ADDL. A.GS.)
__________________________________________________________________
::: Downloaded on - 31/01/2022 23:33:10 :::CIS
2
This petition coming on for admission after notice this
day, Hon'ble Mr. Justice Tarlok Singh Chauhan, passed the
following:
ORDER
.
The request made by the petitioner for releasing him on parole has been turned down by the respondents constraining him to file the instant petition for grant of the following substantive relief:
"issue a writ of mandamus directing respondent No.2 to grant parole to the petitioner, in a time bound manner, as per law laid down therefor".
2. The only ground for rejecting the request of the petitioner for releasing him on parole is that he has been convicted for offences punishable under sections 376, 302, 511 and 201 of the Indian Penal Code and sentenced to undergo life imprisonment and more over the complainant, local police as well as inhabitants of the locality have objections to the petitioner being released on parole.
3. We have heard the learned counsel for the parties and have also gone through the material placed on record.
4. It is more than settled that the grant of remission or parole is not a right vested with the prisoner. It is a privilege available to the prisoner on fulfilling certain conditions. This is a discretionary power which has to be exercised by the authorities ::: Downloaded on - 31/01/2022 23:33:10 :::CIS 3 conferred with such powers under the relevant rules/regulations.
The Court cannot exercise these powers, though once the powers are exercised, the Court may hold that the exercise of powers is not in accordance with rules.
.
5. The Hon'ble Supreme Court has considered in detail the nature, object, purpose and parameters for grant of parole subject to which parole can be granted, in Asfaq versus State of Rajasthan and others, (2017) 15 SCC 55, wherein it was observed as under:
"14. Furlough, on the other hand, is a brief release from the prison. It is conditional and is given in case of long term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission.
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 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.::: Downloaded on - 31/01/2022 23:33:10 :::CIS 4
16. This Court, through various pronouncements, has laid down the differences between parole and furlough, few of which are as under:
(i) Both parole and furlough are conditional release.
(ii) Parole can be granted in case of short term .
imprisonment whereas in furlough it is granted in case of long term imprisonment.
(iii) Duration of parole extends to one month whereas in the case of furlough it extends to fourteen days maximum.
(iv) Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons.
(v) For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment.
(vi) The term of imprisonment is not included in the computation of the term of parole, whereas it is vice versa in furlough.
(vii) Parole can be granted number of times whereas there is limitation in the case of furlough.
(viii) Since furlough is not granted for any particular reason, it can be denied in the interest of the society. {See State of Maharashtra and Another v. Suresh Pandurang Darvakar (2006) 4 SCC 776; and State of Haryana and Others v.
Mohinder Singh, (2000) 3 SCC 394.
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 we recognize ::: Downloaded on - 31/01/2022 23:33:10 :::CIS 5 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 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, 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. 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 ::: Downloaded on - 31/01/2022 23:33:10 :::CIS 6 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 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.
20. Thus, not all people in prison are appropriate for grant of furlough or parole. Obviously, society must isolate those who show patterns of preying upon victims. Yet administrators ought to encourage those offenders who demonstrate a commitment to reconcile with society and whose behaviour shows that aspire to live as law abiding citizens. Thus, parole program should be used as a tool to shape such adjustments.
21. To sum up, in introducing penal reforms, the State that runs the administration on behalf of the society and for the benefit of the society at large cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty. It is for this reason that in introducing such reforms, the authorities cannot be oblivious of the obligation to the society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty (by a Court) of having perpetrated a criminal act. One of the discernible purposes of imposing the penalty of imprisonment is to render the society immune from the criminal for a specified period. It ::: Downloaded on - 31/01/2022 23:33:10 :::CIS 7 is, therefore, understandable that while meting out humane treatment to the convicts, care has to be taken to ensure that kindness to the convicts does not result in cruelty to the society. Naturally enough, the authorities would be anxious to ensure that the convict who is released on .
furlough does not seize the opportunity to commit another crime when he is at large for the time-being under the furlough leave granted to him by way of a measure of penal reform.
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 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 categorized 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 god conduct, habitual offender ::: Downloaded on - 31/01/2022 23:33:10 :::CIS 8 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 reality, though restricted by the fact of imprisonment. {See - Sunil Batra (II) v. State (UT of Delhi) (1980) 3 SCC 488 , Maneka Gandhi v. Union of India (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."
::: Downloaded on - 31/01/2022 23:33:10 :::CIS 96. It is evidently clear from the aforesaid judgment that the Hon'ble Supreme Court itself emphasized on the aspect of rehabilitation, continuity of life and constructive hopes for convicts and prisoners and for the reformation even while they .
are undergoing incarceration.
7. Judged in light of the aforesaid exposition of law, the Court no doubt has to take a humanistic approach while granting parole so as to afford the convict an opportunity to solve his personal and family problems and enable him to maintain his links with the society, but nonetheless it cannot be ignored that the petitioner belongs to the same village as that of the complainant and we can take judicial notice of the fact that the villages in Himachal Pradesh are small and generally have population not exceeding 100 people and there is bound to be a threat perception amongst the people of the village, more particularly family of the complainant.
8. At this stage, it would be relevant to reproduce the statement of Sh. Badri Ram, father of the victim, which reads as under:
"It is stated that I am the resident of aforementioned village and after retirement from the Indian Army, I am doing the agricultural work at home. It is requested from the Government that convict Dinesh Kumar may not be released on parole, because convict Dinesh Kumar had given threatening to 3-4 persons of the village that he will take revenge, when I came out from the Prison. Hence, I requested ::: Downloaded on - 31/01/2022 23:33:10 :::CIS 10 you Sir that convict may not give parole. That's my statement, which believe to be true.
9. The threat perception as expressed by the complainant party and other residents of the village and even the .
police cannot be said to be totally ill-founded, more particularly, when the petitioner has been convicted and sentenced for the offences punishable under Sections 376 and 302 IPC.
10. Learned counsel for the petitioner would then state that this Court in a number of cases has already released many convicts on parole even when they have been convicted under Sections 376 & 302 IPC. However, we find no force in this contention for the simple reason that each case is to be decided on its own facts and circumstances.
11. For the reasons stated above and in view of the peculiar facts and circumstances of the case, we find no ground to accede to the request of the petitioner to release him on parole.
Consequently, the instant petition is dismissed. However, this order shall not prevent the petitioner from filing a fresh petition for release on parole in the changed circumstances.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) 4.1.2022 Judge (pankaj) ::: Downloaded on - 31/01/2022 23:33:10 :::CIS