Punjab-Haryana High Court
Sahib Chand vs State Of U.T. Chandigarh & Others on 28 February, 2012
Author: S.S. Saron
Bench: S.S.Saron
Crl.W.P. No.35 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.W.P. No.35 of 2012
DATE OF DECISION: February 28, 2012
SAHIB CHAND ...PETITIONER
VERSUS
STATE OF U.T. CHANDIGARH & OTHERS ...RESPONDENTS
CORAM: HON'BLE MR.JUSTICE S.S.SARON.
HON'BLE MR.JUSTICE M.JEYAPAUL.
PRESENT: MR. SUNIL K. CHAUDHARY, ADVOCATE
FOR THE PETITIONER.
MR. KULBIR DALAL, ADVOCATE
FOR MR. HEMANT BASSI, ADVOCATE
FOR RESPONDENTS NO.1 AND 3.
NONE FOR RESPONDENT NO.2.
S.S. Saron, J.
Short reply by way of affidavit of Sh.Balbir Singh PCS, Superintendent, Model Jail, Chandigarh filed in Court today is taken on record.
Criminal Writ petition under Article 226 of the Constitution of India has been filed seeking setting aside of the order dated 16.12.2011 (Annexure P-1) passed by the Inspector General of Prisons (respondent No.1) and addressed to the Superintendent, Model Jail, Chandigarh (respondent No.3).
The petitioner alongwith his co-accused Rashid was tried for the offences punishable under Sections 364, 302, 201 and 34 Indian Penal Code ('IPC'-for short). The learned Addl. Sessions Judge, Chandigarh vide Crl.W.P. No.35 of 2012 -2- order dated 11.10.2010 found the petitioner guilty for the commission of offences punishable under Sections 364, 302 and 201 IPC. Accordingly, he was sentenced to undergo imprisonment for life for the offence under Section 302 IPC, besides, undergo rigorous imprisonment for 7 years for the offence under Section 364 IPC and to undergo rigorous imprisonment for 3 years for the offence under Section 201 IPC. Besides, fine was ordered to be paid. The sentences of imprisonment were ordered to run concurrently. Against the said order of conviction and sentence, the petitioner has filed Criminal Appeal No.1162-DB of 2010 in this Court, which is pending.
The petitioner applied for his temporary release on parole on 17.6.2011 to meet his old widowed mother, child and wife. It is submitted that the Superintendent, Model Jail Chandigarh (respondent No.3) recommended his parole case to the District Magistrate, Ambala, Haryana (respondent No.2). The District Magistrate (respondent No.2) asked for a report from the local police. It is alleged that they prepared a false and a wrong report regarding the reputation of the petitioner being not good. On the basis of the same the parole was rejected.
In the reply by way of affidavit of Sh.Balbir Singh, Superintendent of Jail, Model Jail, Chandigarh, it is stated that initially the petitioner made a request on 7.1.2011 and had mentioned his address of Sector 32-C, Chandigarh for availing parole. His request letter was sent to the District Magistrate, Chandigarh who gave a report dated 9.5.2011 conveying that no family member of the petitioner was residing at the address given by him. A relative of the petitioner, namely Jagdish Kumar Crl.W.P. No.35 of 2012 -3- was residing at the address that was given by the petitioner and he conveyed that the petitioner was a permanent resident of village Jansui, Police Station Nangal, District Ambala. In view of the report received from the District Magistrate, Chandigarh, the Inspector General of Prisons (respondent No.1) asked for a report from the District Magistrate, Ambala (respondent No.2). Thereafter, another application dated 30.5.2011 was received from the petitioner for grant of parole in which he mentioned his address of village Jansui, District Ambala for availing parole. The District Magistrate, Ambala (respondent No.2), it is stated, has not recommended the release of the petitioner on parole and in his report has mentioned that the petitioner was married and had been living separately from his parents and brother. It is further mentioned in the said report that wife of the petitioner had left village Jansui and was residing in her parental house and that the petitioner did not share a good reputation in the village. It is also mentioned by the District Magistrate (respondent No.2) that in case the petitioner came out on parole/furlough, there was an apprehension of commission of some grave offence. Accordingly, he had not recommended the release of the petitioner on parole.
After giving our thoughtful consideration to the matter, it may be noticed that the order dated 16.12.2011 (Annexure P-1) is merely a communication from the Inspector General of Prisons (respondent No.1) to the Superintendent, Model Jail, Chandigarh (respondent No.3). It is mentioned that the District Magistrate, Ambala has not recommended the release of the petitioner on the basis of the report of the local police. The Crl.W.P. No.35 of 2012 -4- report had revealed that the reputation of the petitioner was not good and if he was released on parole, he would commit a henious crime. The said order does not take into consideration the relevant facts and circumstances, which were liable to be taken into consideration in the decision making process for release of a prisoner on parole. Temporary release of prisoners on parole is provided for in terms of Sections 3 and 4 of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 ('Act'-for short). Section 3 provides for temporary release of the prisoners on certain grounds and Section 4 provides for temporary release of prisoners on furlough. Section 6 provides for cases where consultation with District Magistrate is not necessary or where the prisoners are not to be released. In terms of Section 6(ii), it is provided that 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, where consultation with him is necessary, the State Government or an officer authorized by it in this behalf is satisfied that his release is likely to endanger the security of the State or the maintenance of the public order. Therefore, for not temporarily releasing a prisoner, the satisfaction of the State Government or an officer authorized by it in this behalf is necessary. A temporary release can be declined if the release of the prisoner is likely to endanger the security of the State or the maintenance of public order. The ground given for declining parole in the present case is only that if the petitioner is released on parole, he would commit a henious crime. It has not been considered whether the release would endanger the security of the State or the Crl.W.P. No.35 of 2012 -5- maintenance of public order, as envisaged by Section 6(ii) of the Act. Besides, there is no material in this regard to indicate that there was indeed a likelihood of endangering the security of the State or the maintenance of public order. Therefore, we are of the view that the order dated 16.12.2011 (Annexure P-1) is unsustainable and is liable to be set aside and the competent authority i.e. the Inspector General of Prisons (respondent No.1) is liable to pass a fresh order after considering the material on record and after satisfying himself whether the release of the prisoner on parole would endanger the security of the State or the maintenance of public order.
Consequently, the criminal writ petition is allowed. The order dated 16.12.2011 (Annexure P-1) is set aside and quashed. The Inspector General of Prisons (respondent No.1) shall consider the matter afresh after taking into consideration all the relevant and necessary material which is required to be taken into consideration in the decision making process.
(S.S. SARON)
JUDGE
February 28, 2012 (M.JEYAPAUL)
Gulati JUDGE