Himachal Pradesh High Court
Nadeem vs State Of H. P. & Ors on 3 November, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 5783 of 2023
.
Decided on: 03.11.2023
Nadeem ...Petitioner
Versus
State of H. P. & Ors. ...Respondents
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of
Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting? 1 No.
For the Petitioner : rt Ms. Rajvinder Sandhu, Advocate.
For the Respondents : Mr. I. N. Mehta, Sr. Addl. A.Gs. with Ms.
Sharmila Patial, Mr. Navlesh Verma,
Addl. A.Gs. and Mr. J. S. Guleria, Dy. A.G.
Tarlok Singh Chauhan, Judge (Oral)
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(s):-
(i) That the rejection letter dated 14.06.2023 issued by the respondent No. 3 whereby claim of the petitioner for grant of parole has been rejected may very kindly be quashed and set aside.
(ii) That the respondents may very kindly be directed to grant parole for 28 days to the petitioner, in a time bound manner, as per law laid down therefor;
2. Even though the respondents have not filed reply but they have placed on record instructions dated 31.10.2023, which 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 04/11/2023 20:35:44 :::CIS 2 go to indicate that the petitioner had earlier applied for release on parole on one occasion but the same was turned down by the .
competent authorities due to non-recommendation of the concerned District authorities. Thereafter, the petitioner had applied for his temporary release on parole in the month of March, 2023 to meet his family members and his request was of forwarded to the District authorities i.e. District Magistrate and Superintendent of Police, Saharanpur, District Saharanpur, Uttar rt Pradesh for recommendations/verifications report(s), as required under the provisions of Himachal Pradesh Good conduct Prisoners (Temporary Release) Act, 1968. The parole case of the petitioner, after conducting necessary inquiry, has not been recommended by the District Magistrate, Saharanpur, on the ground that the local police had objected to temporary release of the petitioner and further there was apprehension that if the petitioner is released on parole he may jump the same.
3. Alongwith the instructions, copy of report submitted to the District Magistrate by the Senior Superintendent of Police, Saharanpur, has been enclosed, which goes to indicate that the case of the petitioner for grant of parole has been rejected not only on the ground that there was apprehension that he may jump the parole but also on the ground that there was upcoming ::: Downloaded on - 04/11/2023 20:35:44 :::CIS 3 municipal election and there was every likelihood that the petitioner may disrupt the election by spoiling the atmosphere.
.
4. 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 of 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 rt 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.
16. This Court, through various pronouncements, has laid down the differences between parole and furlough, few of which are as under:::: Downloaded on - 04/11/2023 20:35:44 :::CIS 4
(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 of Prisons.
(v) For parole, specific reason is required, whereas rtfurlough 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, ::: Downloaded on - 04/11/2023 20:35:44 :::CIS 5 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 of 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 rt 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 ::: Downloaded on - 04/11/2023 20:35:44 :::CIS 6 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, of 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 rt 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 ::: Downloaded on - 04/11/2023 20:35:44 :::CIS 7 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 is, therefore, understandable that while meting out humane treatment of 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 rt 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 ::: Downloaded on - 04/11/2023 20:35:44 :::CIS 8 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, of habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquility etc. rt
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 ::: Downloaded on - 04/11/2023 20:35:44 :::CIS 9 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 of aforesaid ground i.e. on its merits."
5. It is evidently clear from the aforesaid judgment that rt 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.
6. So far as respondents are concerned, the State Legislature has enacted "The Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968", which provides for temporary release of the prisoners on certain conditions.
Sections 3 and 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 ::: Downloaded on - 04/11/2023 20:35:44 :::CIS 10
(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 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 of cause.
(2). The period for which a prisoner may be released shall be determined by the Government so as not to exceed,-
rt(a) Where the prisoner is to be released on 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, authorize 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 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 authorized ::: Downloaded on - 04/11/2023 20:35:44 :::CIS 11 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."
7. In exercise of powers conferred under Section 10 of the Act, the respondents-State have framed "The Himachal Pradesh Good Conduct Prisoners (Temporary Release) Rules, of 1969" (for short 'Rules'). The relevant portion of Rule 3 reads as under:-
rt "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, 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 Superintendent of Police and ::: Downloaded on - 04/11/2023 20:35:44 :::CIS 12 forward his recommendations within one week to the Inspector 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 of prisoner, the application should be processed more expeditiously. However in the event of death of the close relation i.e. father, mother, brother, sister, rt 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 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.
The Superintendent of Jail shall also take into consideration the prisoner's past criminal 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 ::: Downloaded on - 04/11/2023 20:35:44 :::CIS 13 granted, to the Inspector General of Prisons enabling him to ensure that the Superintendent has used .
proper discretion in effecting the release."
8. 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 of temporary release for meeting his family members-relations and/or for carrying out any other agricultural operation, or on rt 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 release is likely to endanger the security of the State or maintenance of public order.
9. As per the mandate of the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 and Rule 3 of the Rules, the District Magistrate was bound to verify the facts, to ascertain the genuineness of the grounds on which parole was requested and then to form an opinion based on an impartial and independent application of mind after considering the entire material i.e. reports-recommendations-inputs etc made by all the ::: Downloaded on - 04/11/2023 20:35:44 :::CIS 14 designated authorities and then in taking a holistic view of the matter.
.
10. In the instant case, the perusal of the report of District Magistrate would indicate that the case of the petitioner has been rejected only on the ground as set out in paras 2&3 (supra), but it needs to be noticed that there is nothing adverse of reported against the petitioner and in such circumstances, the objections raised by the respondents in absence of there being rt any concrete material cannot sustain because the respondents have failed to resort to comprehensive exercise for formation of opinion after taking into account the entire material i.e. report(s)/recommendation(s)/inputs in the context of the object and rationale of parole as mandated by the Statute, Rules and Law in accordance with the judgment rendered by the Hon'ble Supreme Court in Asfaq case (supra). Moreover, the apprehension of the respondents as expressed in the instructions can be adequately safeguarded by imposing stringent/strict conditions before releasing the petitioner on parole.
11. In view of the aforesaid discussions, the instant writ petition is allowed, with the following directions :-
(i) The rejection of parole letter dated 14.06.2023 is quashed and set-aside.
(ii) Respondents are directed to release the petitioner on parole for a period of 28 days, on his furnishing bail ::: Downloaded on - 04/11/2023 20:35:44 :::CIS 15 bonds in the sum of Rs. 5, 00,000/- with two local sureties in the like amount to the satisfaction of the .
Superintendent of Police, Modern Central Jail, Kanda, District Shimla.
(iii) The petitioner shall surrender before the aforesaid Superintendent of Police on expiry of the parole period.
of 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 rt take appropriate action against the petitioner in accordance with law.
(iv) In peculiar facts and circumstances, herein, respondents are at liberty to impose any other just and reasonable condition(s), in addition to the aforesaid conditions.
12. The petition stands disposed of in the aforesaid terms, so also pending applications, if any.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
3rd November, 2022 Judge
(sanjeev)
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