__________________________________________________________ vs State Of Himachal Pradesh And Others on 11 January, 2024

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Himachal Pradesh High Court

__________________________________________________________ vs State Of Himachal Pradesh And Others on 11 January, 2024

2. Petitioner is a convict for offences under Sections 363, 376 (2) IPC and Section 4 of the Protection of Children from Sexual Offences Act (for short, 'POCSO Act'). He is undergoing substantive sentence of rigorous imprisonment for 10 years at Model Central Jail, Nahan, District Sirmaur, H.P. Petitioner has already undergone substantive sentence of 02 years, 02 months and 19 days as on 06.01.2024.

Whether reporters of Local Papers may be allowed to see the judgment?

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3. Petitioner applied for temporary release under the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968, (for short, 'the Act') on the ground to .

look-after his ailing mother.

4. The District Magistrate, Mandi has not recommended the case of petitioner for temporary release on the ground that the father of victim has expressed his of apprehension regarding possibility of harm being caused by petitioner to his family members. In result, the Chief Welfare rt Officer, Prisons & Correctional Services, Himachal Pradesh vide communication dated 30.10.2023 has rejected the request of the petitioner. Hence, this petition.

5. The record reveals that Jail conduct of the petitioner has been satisfactory. The local police and Panchayat have no objection in temporary release of the petitioner. It is only on the objection of the father of victim that the District Magistrate, Mandi has refused to recommend the case of petitioner for temporary release.

6. Petitioner is resident of Village Kohra, Post Office Sanithal, Tehsil Jogindernagar, District Mandi (H.P.), whereas, the victim and her family resides at Bagla Mohalla, ::: Downloaded on - 11/01/2024 20:34:09 :::CIS 3 Tehsil Sadar, District Mandi, H.P. Thus, the place of residence of victim and her family is quite distant from the place of residence of the petitioner.

7. 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, of wherein it was observed as under:

"14.

rt 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.

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Thus, redemption and rehabilitation of such prisoners for good of societies must receive due weightage while they are undergoing sentence of imprisonment.

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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.

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(ii) Parole can be granted in case of short term imprisonment whereas in furlough it is granted in case of long term imprisonment.

rt (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 ::: Downloaded on - 11/01/2024 20:34:09 :::CIS 5 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 of the objectives behind sentence and punishment, namely, reformation of the convict. The theory of criminology, which is largely accepted, underlines rt 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, ::: Downloaded on - 11/01/2024 20:34:09 :::CIS 6 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, of without a fundamental knowledge of the communities to which they will return, and without resources, stand a significantly higher rt 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 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 ::: Downloaded on - 11/01/2024 20:34:09 :::CIS 7 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 of 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 rt 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 ::: Downloaded on - 11/01/2024 20:34:09 :::CIS 8 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 is, therefore, understandable that while meting out humane of 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, rt 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 ::: Downloaded on - 11/01/2024 20:34:09 :::CIS 9 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 person convicted has suffered incarceration for a long of 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 rt 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 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 ::: Downloaded on - 11/01/2024 20:34:09 :::CIS 10 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 of Central Jai, Tihar, New Delhi, (1978) 4 SCC 104.

24. It is also to be kept in mind that by the time an rt 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."

8. After taking into consideration the aforesaid ::: Downloaded on - 11/01/2024 20:34:09 :::CIS 11 exposition, this Court while deciding CWP No. 5783 of 2023, titled Nadeem vs. State of H.P. and others, vide judgment dated 03.11.2023, had observed as under:

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"5. 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 of incarceration."

9. Section 6 of the Act, vests the Government or an rt officer authorized by it in this behalf to deny the entitlement of a prisoner to be released temporarily under the Act on being satisfied that such release was likely to endanger the security of the State or the maintenance of public order.

10. It is not the case of the respondents that the temporary release of petitioner is likely to endanger the security of the State. The only objection that has been raised is regarding safety and security of the victim and her family, which also in all circumstances cannot be said to be a threat to the maintenance of public order. The obligation to maintain public order is with the authorities vested with powers in that behalf by law. The District Magistrate is one of ::: Downloaded on - 11/01/2024 20:34:09 :::CIS 12 such authorities.

11. The right available to a prisoner under the Act and the Rules framed thereunder, more particularly, in light of .

the exposition of law made in Asfaq (supra), cannot be denied merely on the ipse dixit of the authorities. The authority has to record its objective satisfaction for denying the benefit of temporary release to the prisoner under the of Act.

12. In the given facts of the case, there is no direct rt threat to the security of the State or the maintenance of public order as such. As regards, the threat apprehended by the family of victim, the authorities vested with powers to maintain law and order are obligated to look into such aspect in accordance with law.

13. The Superintendent Jail, Model Central Jail, Nahan, District Sirmaur, H.P. vide his communication dated 06.01.2024 placed on record alongwith instructions dated 10.01.2024 has reported the jail conduct and behaviour of the petitioner to be satisfactory.

14. Since the petitioner has sought temporary release under the Act for the purpose of looking after his ailing ::: Downloaded on - 11/01/2024 20:34:09 :::CIS 13 mother, he is entitled for temporary release for a period of two weeks under Section 3 (1) (a) read with Section 3 (2) (a) of the Act.

15. In view of above discussion, the instant petition is allowed with the following directions:

1. The rejection of parole letter dated 30.10.2023 (Annexure P-1), is quashed and of set-aside.

2.rt The respondents are directed to release the petitioner on parole for a period of two weeks on his furnishing personal bond in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the releasing authority.

3. The petitioner shall surrender before the Superintendent Jail, Model Central Jail, Nahan, District Sirmaur, H.P. on expiry of parole period. In case the petitioner breaches any of the conditions of parole order or creates any law and order problem, then the respondents are free to cancel the parole and ::: Downloaded on - 11/01/2024 20:34:09 :::CIS 14 take appropriate action against petitioner in accordance with law.

16. The petition stands accordingly disposed of, so .

also the pending application(s) if any.



                                    (Tarlok Singh Chauhan)





                                               Judge




                                  of
    11th January, 2024                        (Satyen Vaidya)
          (GR)                                     Judge

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Himachal Pradesh High Court