Himachal Pradesh High Court
S/O Sh. Mohbhoob vs State Of Rajasthan And Others on 30 December, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 30th DAY OF DECEMBER 2021
BEFORE
.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No. 7547 of 2021
Between:-
BHURA KHAN
S/O SH. MOHBHOOB,
AGED ABOUT 47 YEARS,
R/O VILLAGE SHERPUR MAFI,
TEHSIL, P/O AND P/S BILARI,
DISTRICT MURADABAD, U.P.
THROUGH SUPERINTENDENT OF JAIL.
.....PETITIONER
(BY SH. PANKAJ SAWANT, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH,
THROUGH ITS PRINCIPAL SECREARY
DEPARTMENT OF HOME (JAIL), SHIMLA,
DISTRICT 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.
4. THE SUPERINTENDENT OF JAIL
MODEL CENTRAL JAIL NAHAN,
DISTRICT SIRMOUR, (H.P.)
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2
.....RESPONDENTS
(BY SH. ASHOK SHARMA ADVOCATE GENERAL
WITH SH. NAND LAL THAKUR, ADDITIONAL
.
ADVOCATE GENERAL)
____________________________________________________
This petition coming on for admission this day,
Hon'ble Ms. Justice Jyotsna Rewal Dua, passed the
following:
ORDER
Petitioner has been convicted for offences under Sections 302 and 323 of the Indian Penal Code by the learned Additional Sessions Judge, Nalagarh, District Solan, H.P. He has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- with default clauses vide judgment dated 5.10.2019. Criminal Appeal No.100/2020, preferred by the petitioner against the judgment of conviction has been dismissed by this Court. By means of present petition, he seeks parole for 90 days.
2(i). As per the averments made in the petition, the petitioner on 14.09.2020 applied for parole to meet his family members consisting of his wife and four minor children. The application was rejected by respondent No.2 on 10.12.2020.
The petitioner subsequently moved another application for parole on 24.05.2021, which was also rejected on the basis of ::: Downloaded on - 31/01/2022 23:30:53 :::CIS 3 non-recommendation from the concerned District Magistrate.
Aggrieved against the rejection of his applications for grant of .
parole, the petitioner has preferred the present petition praying that the rejection of his applications are in violation of his legal rights granted under the Constitution as well as the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 (in short the Act) and Rules 1969 framed thereunder.
2(ii) In reply, the respondents while opposing the petition have submitted that in accordance with provisions of the Act & Rules framed thereunder, the parole applications of the prisoners are to be forwarded to the District Magistrate of the concerned district for his recommendation. The District Magistrate after consulting the Superintending of Police and on making such inquiries as deemed fit is to make his recommendation with regard to the release of the convict. It has been further submitted that in case the District Magistrate on inquiry is satisfied that the release of the convict is likely to endanger the security of the State or the maintenance of public order then the convict is not entitled to be released as per the provisions of Section 6 of the Act.
Learned Additional Advocate General submitted that the matter regarding the parole of the petitioner was got ::: Downloaded on - 31/01/2022 23:30:53 :::CIS 4 inquired by the District Magistrate Muradabad, Uttar Pradesh through the Superintending of Police, District Muradabad .
Uttar Pradesh. After conducting necessary inquiry, the parole case of the petitioner was not recommended by the District Magistrate Muradabad, vide letter dated 4.8.2021.
3. We have heard learned counsel for the parties and gone through the record of the case.
4(i). Vide judgment dated 5.10.2019, petitioner has been convicted for the offences under Sections 302 & 323 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-
with default clauses. As per the certificate (Annexure P-6) issued by the Superintendent Jail, Model Central Jail Nahan, appended with the petition, the petitioner has completed 6 years, 4 months and 28 days of his sentence. The certificate also reflects that the conduct of the petitioner in jail has been satisfactory.
4(ii) We have also seen the report dated 8.7.2021 sent by the Senior Superintendent of Police, District Muradabad Uttar Pradesh to the District Probation Officer, Janpad, Muradabad. As per this report, there are total 05 members in the family of the petitioner including his wife aged 36 years and four minor children. Petitioner is aged 42 years.
::: Downloaded on - 31/01/2022 23:30:53 :::CIS 5As per the report, petitioner has a house in village and no other plot/land. The sole reason given in the report for .
rejecting petitioner's application for release on parole is that his release will send wrong message to the society. It is purely on the basis of the report dated 8.7.2021 that the District Magistrate Muradabad has turned down petitioner's application. The reply to the writ petition also states that the petitioner belongs to the State of Uttar Pradesh and there is likelihood of his absconding during parole.
4(iii). 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 :-
::: Downloaded on - 31/01/2022 23:30:53 :::CIS 6"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 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 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 ::: Downloaded on - 31/01/2022 23:30:53 :::CIS 7 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.
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 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 god conduct, habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquillity etc.
23. There can be no cavil in saying that a society that believes in the worth of the individuals can have the ::: Downloaded on - 31/01/2022 23:30:53 :::CIS 8 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 (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 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."
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, Hon'ble apex Court held that merely repeating the fact that ::: Downloaded on - 31/01/2022 23:30:53 :::CIS 9 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 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."
4(iv) In light of the above decisions, the ground taken by the respondents that petitioner's release on parole would send negative message to the society cannot be ::: Downloaded on - 31/01/2022 23:30:53 :::CIS 10 countenanced. The issue in question is otherwise squarely covered by a judgment rendered by a Coordinate Bench of .
this Court in CWP No.1497/2020, dated 07.10.2020, titled as Anil Kumar Vs. State of Himachal Pradesh & Others.
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 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 ( Jyotsna Rewal Dua ) Judge December 30, 2021 (rohit) ::: Downloaded on - 31/01/2022 23:30:53 :::CIS