Himachal Pradesh High Court
__________________________________________________________ vs Of on 10 August, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
CWP No. 4350 of 2023
.
Decided on: 10th August, 2023
__________________________________________________________
Dharam Pal
....Petitioner
Versus
of
State of Himachal Pradesh and others
......Respondents
Coram
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
rt
Hon'ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? No.
For the Petitioner: Mr. Vivek Negi, vice Mr. Sunil Kumar
Advocate.
For the Respondents: Mr. Anup Rattan, Advocate General
with Mr. I.N.Mehta, Sr. Additional
Advocate General.
Ranjan Sharma, Judge (Oral)
The instant petition has been filed by the petitioner for grant of the following substantive reliefs:-
(i) "That this Hon'ble Court may kindly be pleased to issue writ in the nature of certiorari, thereby quash and set aside the Annexure P-3 dated 26-05-2023 in the interest of justice and fair play.1
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 16/08/2023 20:32:19 :::CIS -2-(ii) That this Hon'ble Court may kindly be pleased to issue writ in the nature of mandamus, thereby .
directing the respondents to release the petitioner on parole for the period of 28 days to meet with family, in the facts and circumstances of the present case."
FACTS of 2(i). Precisely, the case of the petitioner is that an FIR No.218 of 2014, dated 27.09.2014, was registered against him and another person in Police Station, Nalagarh, District rt Solan, Himachal Pradesh, under Sections 302, 364 and 201 read with Section 34 of the Indian Penal Code. Flowing therefrom, the petitioner faced trial and as per judgment dated 23.10.2019, passed by the learned Additional Sessions Judge, Nalagarh, District Solan, the petitioner was convicted and sentenced for life imprisonment and to pay a fine of Rs.11,000/- (Rupees Eleven thousand Only) and in default of payment of fine to undergo rigorous imprisonment for a period of one year.
2(ii). The aforesaid conviction and sentence was assailed before this Court, in Criminal Appeal No.115 of 2020, titled as Dharam Pal Versus State of Himachal Pradesh ::: Downloaded on - 16/08/2023 20:32:19 :::CIS -3- and the same is pending adjudication before this Court.
However, the petitioner after having undergone sentence of .
eleven years, seven months and three days, in Model Central Jail, Kanda, District Shimla, Himachal Pradesh, applied for parole on 23.12.2022, Annexure P-2(T), so as to enable him to meet his family.
of 2(iii). The aforesaid request of the petitioner for grant of parole was turned down by the Competent Authority on rt 26.05.2023, Annexure P-3, in view of non-recommendation of his case by District Magistrate, Bareilly, on 6.4.2023, Annexure P-4(T,) which is further based on the report of Superintendent of Police, Bareilly, dated 21.03.2023, Annexure P-4(T), colly.
REPLY/STAND OF RESPONDENTS:
3. While issuing notices in this writ petition, on 05.07.2023, this Court directed the respondents to file reply within four weeks. The matter was listed on 09.08.2023 and then on 10.08.2023, on which date the reply was filed in Court, wherein the authorities have attempted to justify the rejection orders dated 26.05.2023, Annexure P-3.
4. We have heard Mr. Vivek Negi appearing vice ::: Downloaded on - 16/08/2023 20:32:19 :::CIS -4- Mr. Sunil Kumar, Learned Advocate, for the petitioner and Mr. Anup Rattan, Learned Advocate General assisted by Mr. .
I.N.Mehta, Learned Senior Additional Advocate General for the respondents-State.
LEGAL POSITION:
5(i). At the outset, it would be relevant to take note, of of the pronouncement of the Hon'ble Apex Court in Asfaq Versus State of Rajasthan and others, (2017) 15 Supreme Court Cases 55.
rt The Apex Court has enunciated the object of granting parole to a convict. It has been emphasized that the parole is granted with an objective of reformation of the convicts. The convicts have right to breathe fresh air, albeit for short periods. The main purpose of parole is to provide humanistic approach towards those lodged in jails, so that such convicts can prepare not only to solve their personal and family problems, but also to maintain their links with society and such gestures by the State go a long way for redemption and rehabilitation of such prisoners, which are good for the society and are in public interest. The relevant paragraphs of the judgment are reproduced here-in-below:-
"11. There is a subtle distinction between parole and furlough. A parole can be defined as ::: Downloaded on - 16/08/2023 20:32:19 :::CIS -5- conditional release of prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the .
authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising of officer for a specified period. Such a release of the prisoner on parole can also be temporarily rt on some basic grounds. In that eventuality, it is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies. Such paroles are normally granted in certain situations some of which may be as follows:
(i) a member of the prisoner's family has died or is seriously ill or the prisoner himself is seriously ill; or
(ii) the marriage of the prisoner himself, his son, daughter, grandson, granddaughter, brother, sister, sister's son or daughter is to be celebrated; or
(iii) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation of his land or his father's undivided land ::: Downloaded on - 16/08/2023 20:32:19 :::CIS -6- actually in possession of the prisoner; or
(iv) it is desirable to do so for any other sufficient cause;
.
(v) parole can be granted only after a portion of sentence is already served;
(vi) if conditions of parole are not abided by the parolee he may be returned to serve his sentence in prison, such conditions may be such as those of committing a new offence; and of
(vii) parole may also be granted on the basis of aspects related to health of convict himself.
xxx... xxx.... xxx...
15.
rt 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.
xxx... xxx.... xxx...
17. From the aforesaid discussion, it follows that amongst the various grounds on which parole can be granted, the most important ground, ::: Downloaded on - 16/08/2023 20:32:19 :::CIS -7- 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 of objectives which a State intends to achieve by punishing the culprit are: deterrence, rt 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 ::: Downloaded on - 16/08/2023 20:32:19 :::CIS -8- 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 of 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, ::: Downloaded on - 16/08/2023 20:32:19 :::CIS -9- 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 of address the question as to whether the convict is such a person who has the rt 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.
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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 of imprisonment is to render the society immune from the criminal for a specified period. It is, therefore, understandable that rt 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 ::: Downloaded on - 16/08/2023 20:32:19 :::CIS
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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 of would indicate that he has a tendency to commit the crime again or that he would be a rt 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 good 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 ::: Downloaded on - 16/08/2023 20:32:19 :::CIS
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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 of being and that he can be deprived of those aspects of life which constitute human dignity. rt For a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. {See - Sunil Batra (II) v.
Delhi Administration (1980) 3 SCC 488, Maneka Gandhi v. Union of India and Another (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 ::: Downloaded on - 16/08/2023 20:32:19 :::CIS
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"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."
(underlining ours) of 5(ii). So far as respondents are concerned, the State Legislature had enacted "The Himachal Pradesh Good Conduct rt Prisoners (Temporary Release) Act, 1968", which provides for temporary release of the prisoners on certain conditions.
Section 3 and Section 6 of the Act, read as under:-
"3. Temporary release of prisoners on certain grounds.-
(1) The Government may, in consultation with the District Magistrate and subject to such conditions and in such manner as may be prescribed, release temporarily for a period specified in sub-section (2) any prisoner if the Government is satisfied that,-
(a) a member of the prisoner's family has died or is seriously ill; or
(b) the marriage of the prisoner's son or daughter is to be celebrated; or
(c) the temporary release of the prisoner is necessary for ploughing, sowing or ::: Downloaded on - 16/08/2023 20:32:19 :::CIS
- 14 -
harvesting or carrying on any other agricultural operation on his land and no friend of the prisoner or a member of .
the prisoner's family is prepared to help him in this behalf in his absence; or
(d) it is desirable so to do for any other sufficient cause.
(2). The period for which a prisoner may be released shall be determined by the of Government so as not to exceed,-
(a) Where the prisoner is to be released on rt the ground specified in clause (a) of sub-section (1), two weeks;
(b) where the prisoner is to be released on the ground specified in clause (b) or clause (d) of sub-section (1), four weeks; and
(c) where the prisoner is to be released on the ground specified in clause (c) of sub-
section (1), six weeks.
(3) The period of release under this section shall not count towards the total period of the sentence of a prisoner.
(4) The Government may, by notification, authorise any officer to exercise its power under this section in respect of all or any of the grounds specified therein."
6. "Prisoners not entitled to be released in certain cases.- Notwithstanding anything ::: Downloaded on - 16/08/2023 20:32:19 :::CIS
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contained in sections 3 and 4, no prisoner shall be entitled to be released under this Act, if, on the report of the District .
Magistrate, the Government or an officer authorised by it in this behalf is satisfied that his release is likely to endanger the security of the State or the maintenance of public order."
of 5(iii). In exercise of powers conferred under Section 10 of the Act, respondents-State have framed "The Himachal Pradesh rt Good Conduct Prisoners (Temporary Release) Rules, 1969" (for short 'Rules'). The relevant portion of Rule 3 reads as under:-
"3. Procedure for temporary release. -
(1) A prisoner desirous of seeking temporary release under section 3 or section 4 of the Act shall make an application in Form 'A-1' , Form 'A-2', as the case may be, to the Superintendent of Jail. Such an application may also be made by an adult member of the prisoners' family.
(2) The Superintendent of Jail shall forward the application of a prisoner within 24 hours of its receipt along with his report to the District Magistrate of the district to which the convict belongs. The District Magistrate before making any recommendations shall, with the consultation of the Superintendent of Police, ::: Downloaded on - 16/08/2023 20:32:19 :::CIS
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verify the facts and grounds on which temporary release has been requested and shall also give their opinion whether the .
temporary release on parole/furlough is opposed on ground of prisoner's presence being dangerous to the security of State or prejudicial to the maintenance of Public Order. The District Magistrate shall complete the process of consultation with the of Superintendent of Police and forward his recommendations within one week to the Inspector rt General of Prisons (Releasing Authority) together with report of Superintendent Jail, who shall decide the parole/furlough case ordinarily within a period of three days from the date of receipt of the recommendations of the District Magistrate.
In the event of the serious illness of close relation i.e. father, mother, brother, sister, spouse or child of the prisoner, the application should be processed more expeditiously. However in the event of death of the close relation i.e. father, mother, brother, sister, spouse or child of the prisoner, the Superintendent of the Jail shall also be the competent authority to release a prisoner on parole for a period not exceeding fifteen days. The Superintendent of Jail should release a prisoner on parole immediately on receipt of a ::: Downloaded on - 16/08/2023 20:32:19 :::CIS
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death certificate, provided he satisfies himself independently within reasonable time about the genuineness of the certificate. For .
satisfying himself he will approach the concerned Police Station by wireless and verify about the truth of the death and the exact relation of the prisoner with the deceased in order to ascertain the nearness of the relationship.
of The Superintendent of Jail shall also take into consideration the prisoner's past criminal rt history and behaviour in the prison since admission as recorded in his case file and the likelihood of his not abusing the concession of parole, if granted.
The Superintendent of Jail shall without fail submit the case file of the prisoner to whom parole is thus granted, to the Inspector General of Prisons enabling him to ensure that the Superintendent has used proper discretion in effecting the release."
[underlining ours] 5(iv). A perusal of Section 3 of the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 and Rule 3 of the Rules aforesaid stipulate that a convict (prisoner) can seek temporary release for specified period for the purpose of carrying out the ploughing, sowing, harvesting or carrying on ::: Downloaded on - 16/08/2023 20:32:19 :::CIS
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any other agricultural operation on his land, or on any other sufficient cause, besides other grounds, as mentioned therein.
.
Rule 3 provides for the procedure as to the manner in which the application for parole is to be processed, examined and decided by the competent authorities. Section 6 of the Act bars the release of the prisoners in specified eventualities, in case the of release is likely to endanger the security of the State or the maintenance of the public order.
ANALYSIS rt 6(i). In the instant case, the documents placed on record make it manifestly clear that the mandate of Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968, and the Rules framed thereunder, have not been followed by the authorities in its true perspective. As per the mandate of Rule 3, the District Magistrate was legally bound, to consult the Superintendent of Police concerned; and to verify the facts and grounds on which parole was requested; and to give his opinion as to whether the convict was entitled to the concession of temporary release-parole or not. In the instant case, this aspect is missing, as the District Magistrate has neither undertaken the requisite exercise by impartial and independent application of mind nor framed any opinion, as to whether the ::: Downloaded on - 16/08/2023 20:32:19 :::CIS
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petitioner was to be released on parole. However, records reveal that the District Magistrate has acted mechanically, by following .
the report submitted to him by the Superintendent of Police.
Accordingly, the non-recommendation of case by the District Magistrate and the resultant rejection is cryptic and vitiated by non-application of mind and is thus, unsustainable.
of 6(ii). A perusal of Section 6 of the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968, mandates that the release is likely to endanger the rt security of the State or the maintenance of public order. In the present case, the respondents have not placed on record any cogent and convincing material justifying that the temporary release of the petitioner, on parole, would infringe the mandate of Section 6 of the Act, as mentioned above. Thus, once the case of the petitioner does not fall in any of the exceptional categories, therefore, the inaction and the impugned orders denying parole are not tenable and liable to be set aside.
6(iii). It is relevant to take note of the Custody/Jail Certificate dated 01.08.2023, Annexure R-2, whereby, the conduct and behaviour of the petitioner has been found to be satisfactory. Besides this, it has come on record that the petitioner was released on parole on earlier occasion, in terms ::: Downloaded on - 16/08/2023 20:32:19 :::CIS
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of judgement dated 23.05.2022, Annexure P-1, of this Court in CWP No. 1347 of 2022. Even during his previous release, the .
conduct and behaviour of the petitioner was satisfactory and nothing adverse was ever reported against him. In these circumstances, the denial of parole indefinitely, when, nothing adverse exists, will frustrate and defeat the very object of of granting parole, as carved out by the enactment(s) and the law laid down by the Hon'ble Apex Court, in case of Asfaq (supra). In view of this, the rt inaction of the respondents and the impugned orders are not tenable in law.
6(iv). It goes without saying, that the apprehension, if any, of the respondents, can be safeguarded by imposing stringent/strict conditions before releasing the petitioner on parole. It is also made clear, that in case, the petitioner involves himself or he attempts or conspires to any of the offences in law; then, such involvement or attempt shall entail the cancellation of parole automatically. It is further made clear that the petitioner shall surrender before the Superintendent Jail, Model Central Jail, Kanda, District Shimla, Himachal Pradesh, on expiry of 28 days parole period. In peculiar facts and circumstances, herein, respondents are at liberty to impose any other just and reasonable condition(s) as deemed fit ::: Downloaded on - 16/08/2023 20:32:19 :::CIS
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and proper to meet the ends of justice.
6(v). During the course of hearing today, the learned .
counsel for the petitioner has given an undertaking that on instructions that in case parole is granted then he shall neither enter nor reside in village Padmi, P.O. Ballian, Police Station Sheeshgarh, District Bareilly, Uttar Pradesh, so as to of obviate any apprehension of threat to family members of deceased or others. In view of this undertaking, we deem it fit and proper that before release, the petitioner shall furnish rt alternative place of residence, outside his native-parent place of residence/village, as referred to above, to respondent No.4, Superintendent of Jail, Model Central Jail, Kanda, District Shimla and also to the concerned Station House Officer/Sub Inspector Sheeshgarh, Distric Bareilly, Uttar Pradesh.
CONCLUSION AND DIRECTIONS:
7. In view of the above discussion, the instant writ petition is allowed, with the following directions:-
(i) Order dated 26.05.2023 (Annexure P-3), rejecting the request, of the petitioner for parole, is quashed and set-aside.
(ii) Respondents are directed to re-consider the case for extending concession of parole to the petitioner, for a ::: Downloaded on - 16/08/2023 20:32:19 :::CIS
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period of 28 days, as requested, on his furnishing personal bond in the sum of Rs.50,000/- with two .
sureties in the sum of Rs.25,000/- each, to the satisfaction of Superintendent Jail, Model Central Jail, Kanda, District Shimla, Himachal Pradesh. It is also made clear that the respondents shall insert the stipulation in the parole order to the effect that of petitioner shall abide by his undertaking that he shall neither enter nor reside in native-parent village rt Padami, Post Office Ballian, Police Station Sheeshgarh, District Bareilly, Uttar Pradesh, during parole period and also to the effect that in case the petitioner involves himself or he attempts or conspires to any of the offences, then, such involvement or attempt shall entail the cancellation of parole automatically. It is further made clear that the petitioner shall surrender before the Superintendent Jail, Model Central Jail, Kanda, District Shimla, Himachal Pradesh, on expiry of 28 days parole period.
(ii) In peculiar facts and circumstances, herein, respondents are at liberty to impose any other just and reasonable condition(s), in addition to the ::: Downloaded on - 16/08/2023 20:32:19 :::CIS
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conditions mentioned in para 7(ii), supra, if deemed fit and proper to meet the ends of justice.
.
8. The instant writ petition is allowed in the aforesaid terms. Pending miscellaneous application(s), if any, are also disposed of.
of
(Tarlok Singh Chauhan)
rt Judge
(Ranjan Sharma)
Judge
August 10, 2023
(TM)
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