Punjab-Haryana High Court
Tarlochan Singh vs State Of Punjab And Others on 10 February, 2012
Author: S.S. Saron
Bench: S.S. Saron
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Writ Petition No.2459 of 2011
Date of decision:-10.02.2012
Tarlochan Singh .....Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MR. JUSTICE S.S. Saron
HON'BLE MR. JUSTICE M. Jeyapaul
Present: Mr. Navkiran Singh, Advocate for the petitioner.
Mr. A. S. Jatana, Addl. AG, Punjab.
Mr. G. S. Gill, Advocate for the complainant.
S.S. SARON, J.
The criminal writ petition under Article 226 of the Constitution of India has been filed seeking issuance of directions to Director General of Police (Prisons) Punjab, Chandigarh (respondent No.2) to release the petitioner on four weeks parole to meet his family members.
The petitioner was vide judgment dated 30.04.2011 convicted by the learned Sessions Judge, Roopnagar for the commission of offences punishable under Sections 302 and 307 IPC; besides, Section 27 of the Arms Act. By a subsequent order passed on 03.05.2011, he was sentenced to imprisonment for life; besides, pay a fine of Rs.10,000/- and in default of payment of fine to undergo rigorous imprisonment for two years for the offence under Section Crl. Writ Petition No.2459 of 2011 -2- 302 IPC. He was also convicted to undergo rigorous imprisonment for 10 years; besides, pay a fine of Rs.5000/- and in default of payment of fine to further undergo rigorous imprisonment for one year for the offence under Section 307 IPC. Lastly, he was convicted for the offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for 7 years; besides, pay a fine of Rs.2000/- and in default of payment of fine to further undergo rigorous imprisonment for 6 months. All the substantive sentences were, however, ordered to run concurrently. Against the said conviction and sentence, the petitioner has filed Crl. Appeal No.467- DB of 2011 which is pending in this Court.
The petitioner now seeks temporary release to meet his family members in accordance with the provisions of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 (Act-for short). It is submitted that initially the Superintendent Jail, Bathinda (respondent No.4) had recommended the case of the petitioner for temporary release on parole. Thereafter, the complainant in the case against the petitioner filed a complaint in the office of Director General of Police (Prisons) Punjab (respondent No.2). The Director General of Police (Prisons) Punjab (respondent No.2) wrote to the District Magistrate SAS Nagar, Mohali (respondent No.3) asking for a fresh report. It is submitted that the petitioner is entitled to temporary release in accordance with the provisions of the Act. However, the same is being withheld primarily because the petitioner filed Civil Writ Petition No.2847 of 2011 in this Court wherein it was brought to the notice of this Court that free sale of intoxicants was being made in Crl. Writ Petition No.2459 of 2011 -3- the District Jail, Ropar. With respect to the allegations made by the petitioner in the said petition, the Principal Secretary to Government of Punjab, Department of Home is conducting an inquiry. It is submitted that for filing the said writ petition, the petitioner is being shifted from one jail to another and his parole case is not being decided.
In the reply filed by the District Magistrate, SAS Nagar, Mohali (respondent No.3), it is stated that a report was sought from the Senior Superintendent of Police SAS Nagar regarding temporary release of the petitioner and in terms of the report, initially a recommendation was made for temporary release of the petitioner. Thereafter, a fresh inquiry was made and the Senior Superintendent of Police, SAS Nagar, Mohali in his report dated 09.01.2012 has mentioned that the petitioner is a criminal minded person and has taken part in many criminal activities in different jails, therefore, he should not be released on parole. The report of the Senior Superintendent of Police has been forwarded to the office of Director General of Police (Prisons), Punjab vide letter dated 09.01.2012 stating that the petitioner should not be released on parole.
In the reply filed by the complainant who has been impleaded as a party, it is stated that the petitioner in connivance with the police officials used to visit his house in village Mataur without any permission. He visited his house in vehicles illegally. The complainant in the case filed an application before the DGP, Punjab who directed the Senior Superintendent of Police, SAS, Nagar, Mohali to conduct an inquiry. The inquiry report dated Crl. Writ Petition No.2459 of 2011 -4- 21.02.2008 (Annexure R5/1) and the communication sent by Senior Superintendent of Police, SAS Nagar, Mohali vide letter dated 18.03.2008 (Annexure R5/2) have been placed on record; besides it is stated that the learned Additional Sessions Judge, Mohali on one occasion allowed the petitioner to visit State Bank of India as well as the Tehsil Complex Mohali in police custody to complete papers so as to make arrangements for his son to go abroad. However, the petitioner, his father Baldev Singh and his son Manpreet Singh and two unidentified persons and a police employee came to the complainant's house where his son Sukhwinder Singh was present and started abusing. The petitioner, his father and his son started raising lalkaras and threatened that the petitioner has come out of jail on that day and he would come out again and wipe out the entire family. A complaint dated 29.02.2009 (Annexure R5/4) made in this regard has been placed on the record. The inquiry report dated 29.09.2009 (Annexure R5/5) made by ASI Narinder Singh, Police Station, Mataur, SAS Nagar is also placed on record. After inquiry a 'calendra' dated 01.10.2009 (Annexure R5/6) was filed in Court of Sub Divisional Magistrate, Mohali. It is submitted that in view of the threats held out by the petitioner to the complainant, he is not entitled for temporary release on parole.
We have heard learned counsel for the parties and perused the record.
Section 3 of the Act provides for temporary release of prisoners on certain grounds. Section 3(1) envisages that the State Government may, in consultation with the District Magistrate and Crl. Writ Petition No.2459 of 2011 -5- 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 State Government is satisfied that:-
(a) a member of the prisoner's family had 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 harvesting or carrying on any other agricultural operation on his land or any other land cultivated by him 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.
The procedure for temporary release is provided for in Rule 3 of the Rules. Rules 3(1), (2) and (3) of the Rules which are relevant read as under:-
"3. Procedure for temporary release.
[Sections 3, 4, 10(1), 10(2) (b), 10(2) (d) and 10 (2)
(e)].- (1) A prison desirous of seeking temporary release under Section 3 or Section 4 of the Act shall make an application in Form A-1 or Form A-2, as the case may be, to the Superintendent of Jail.
Such an application may also be made by an adult Crl. Writ Petition No.2459 of 2011 -6- member of the prisoner's family.
(2) The Superintendent of Jail shall forward the application along with his report to the District Magistrate, who, after consulting the Superintendent of Police of his District, shall forward the case with his recommendations to the Inspector-General. The Inspector-General will then record his views on the case whether the prisoner is to be released or not and submit the same to the Releasing Authority for orders. The District Magistrate, before making any recommendation, shall verify the facts and grounds on which release has been requested and shall also give his opinion whether the temporary release on parole or furlough is opposed on grounds of prisoner's presence being dangerous to the Security of State or prejudicial to the maintenance of public order.
Provided that no such application shall be processed by the Superintendent of Jail, unless the prisoners had maintained good conduct after his conviction atleast for four months in jail.
(3) If, after making such enquiry as it may deem fit, the Releasing Authority is satisfied that the prisoner is entitled to be released under the Act, the Releasing Authority may issue to the Crl. Writ Petition No.2459 of 2011 -7- Superintendent of Jail through the Inspector- General a duly signed and sealed warrant in Form B ordering the temporary release of the prisoner, specifying therein (i) the period of release, (ii) the place or places which the prisoner is allowed to visit during the period of such temporary release, and the amount for which the security bond and the surety bond shall be furnished by the prisoner in Form C and D respectively:
Provided that the amount of the security bond and the surety bond shall not exceed twenty thousand rupees in each case."
In terms of the above Rules, it is evident that the temporary release of the petitioner is to be considered by the Inspector General now Director General (Prisons), Punjab.
In terms of the reply of the District Magistrate, SAS Nagar, Mohali (respondent No.3), it has been mentioned that a report has been sent to the Director General (Prisons) vide letter dated 09.01.2012 recommending not to release the petitioner. However, the matter is liable to be considered by the Director General (Prisons) Punjab (respondent No.2) in accordance with law. The Director General (Prisons) Punjab (respondent No.2) is to independently apply his mind to the matter and take into consideration the relevant and necessary material on record to reach at the decision to release or not to release the petitioner on parole. This exercise has not so far been undertaken by the Director Crl. Writ Petition No.2459 of 2011 -8- General (Prisons) Punjab (respondent No.2). Therefore, the writ petition is premature as the Director General (Prisons) Punjab (respondent No.2) is yet to take a final decision.
Learned counsel for the petitioner, however, has referred to a Division Bench judgment of this Court in the case of Varun alias Gullu versus State of Haryana and others passed in Crl. Misc. No.M-34013 of 2009 decided on 26.04.2010 wherein this Court held as follows:-
"In view of the above, we deem it appropriate to issue the following instructions:
(i) The request for parole and furlough should be considered by the District Magistrate within 21 days, Superintendent Jail within 05 days and Director General of .Prisons within 10 days except in case of parole sought under clause (a) and (b) of sub-Section 1 of Section 3 of the Act.
(ii) In respect of release sought under clause (a),
(b) and for emergent sufficient cause within clause
(d) of sub-Section 1 of Section 3, the State Governments shall issue necessary instructions for considerations of the request of parole expeditiously and preferably by delegating such powers of the State Governments to District Magistrates or any other officer, it considers appropriate.
(iii) The authorities concerned shall consider the Crl. Writ Petition No.2459 of 2011 -9- request for temporary release on parole or furlough and decline the same only on the grounds mentioned under Section 6 of the Act. Any mechanical rejection of request for release on parole or furlough such as for breach of apprehension of peace is not warranted by law.
The competent authority shall pass reasoned and speaking order, whenever it is to decline request for temporary release specifying endanger to the security of the State or of public order.
With the said directions, the petition stands disposed of."
Therefore, indeed the Director General (Prisons) Punjab is liable to consider the temporary release of the petitioner in accordance with the guidelines issued by the Division Bench of this Court as have been extracted above. At this stage without any final order having been passed by the Director General (Prisons) Punjab either declining or recommending the parole of the petitioner, it would be inexpedient for this Court to issue any directions for the temporary release of the petitioner. The matter is liable to be considered by the competent authority i.e. Director General (Prisons) Punjab (respondent No.2) in accordance with law and the decision of the Division Bench of this Court in Varun alias Gullu versus State of Haryana (supra).
Learned counsel for the petitioner has also submitted that the parole of the petitioner is liable to be declined only in case there Crl. Writ Petition No.2459 of 2011 - 10 - is any danger to the security of the State or the maintenance of public order as contemplated by Section 6 of the Act. This aspect, however, is also to be considered by the Director General (Prisons) Punjab (respondent No.2).
Learned counsel for the petitioner has also submitted that the petitioner is liable to be granted temporary release on parole as he would not be a threat to the security of the State or the maintenance of public order and in case the Director General (Prisons) Punjab (respondent No.2) considers him for temporary release, he would on his own not visit the village of the complainant and would confine himself within the limits of District Roopnagar. This aspect may also be considered by the Director General (Prisons), Punjab (respondent No.2) while taking a final decision on the matter of temporary release of the petitioner on parole.
The writ petition is accordingly disposed of and the Director General (Prisons) Punjab (respondent No.2) shall consider the temporary release case of the petitioner in accordance with law including the Division Bench Judgment of this Court in Varun @ Gullu versus State of Haryana (supra) .
(S.S. Saron) Judge (M. Jeyapaul) 10.02.2012 Judge A.kaundal