Punjab-Haryana High Court
Ramesh @ Ajay vs State Of Haryana And Ors on 20 April, 2018
Author: Daya Chaudhary
Bench: Daya Chaudhary
C.W.P. No. 8776 of 2018 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.W.P. No. 8776 of 2018
DATE OF DECISION:24.04.2018
Ramesh @ Ajay ..........Petitioner
Versus
State of Haryana and others ..........Respondents
BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. RS Dhull, Advocate
for the petitioner.
Mr. S.S. Mann, Sr. D.A.G., Haryana.
****
DAYA CHAUDHARY, J.
The petitioner was convicted in case FIR No. 123 dated 30.4.2008 registered under Sections 302,397,396,307 IPC and 25 of Arms Act at Police Station Punhana, District Mewat and was sentenced to undergo rigorous imprisonment for life by the trial Court. Thereafter, an appeal was filed before this Court, which is still pending.
The marriage of the petitioner was fixed for 18.2.2018 and accordingly he submitted an application before the Superintendent of District Jail, Faridabad on 1.2.2018 for grant of four weeks parole to enable him to perform his own marriage. The request of the petitioner was rejected. Thereafter, the filed C.W.P. No. 3315 of 2018 before this Court, which was allowed vide order dated 16.2.2018 and parole for a period of 1 of 8 ::: Downloaded on - 05-05-2018 23:23:01 ::: C.W.P. No. 8776 of 2018 (2) two days was granted but in police custody. After solemnization of marriage on 18.2.2018, in compliance of direction issued by this Court, respondent No.3 forwarded the parole case of the petitioner to respondent No.2 for extension of period of parole for further two weeks but the same was denied on the ground that he is involved in many cases and one case under Section 42 of Prisons Act was also registered against him while he was in jail. It was also mentioned that in case, the petitioner is released on parole, he may abscond.
Learned counsel for the petitioner submits that the claim of the petitioner has wrongly been rejected, whereas, there is nothing on record to show that he may abscond. Learned counsel further submits that the petitioner has never misused the concession of bail or parole and he is ready to comply with all the terms and conditions to be imposed by this Court or by the jail authorities.
Reply on behalf of the respondent-State has been filed in Court today and the same is taken on record.
Learned State counsel submits that the petitioner was involved in number of cases, details of which are given in para 3 of the reply. A mobile phone was also recovered from the petitioner while he was in jail and accordingly another FIR was registered against him. Learned State counsel further submits that case of the petitioner falls in the category of hard core prisoner and is not entitled for parole. Learned counsel also submits that as per direction issued by this Court, the claim of the petitioner was considered and the same was rejected because of his involvement in number of cases. It is also the argument of learned State counsel that the petitioner has not completed five years of sentence, whereas, the same is 2 of 8 ::: Downloaded on - 05-05-2018 23:23:02 ::: C.W.P. No. 8776 of 2018 (3) mandatory.
Heard the arguments advanced by learned counsel for the parties and have also gone through the documents available on the file including order dated 21.3.2018 passed by Commissioner, Faridabad Division, Faridabad, whereby, claim of the petitioner was rejected.
The facts of the case regarding conviction, sentence and also that he was granted parole for two days by this Court to solemnize his marriage, are not disputed. As per direction issued by this Court, the claim of the petitioner for grant of two weeks parole was considered but it was rejected on the ground that he is involved in number of cases. FIR No. 216 dated 9.7.2013 under Section 42 of the Prison Act was also registered against the petitioner as a mobile phone was recovered from him during search of jail. It has also been mentioned in the order of rejection that as per report of Superintendent, District Jail, Faridabad, the convict falls in the category of hard core criminal and because of that reason, he is not entitled for grant of parole.
Section 2 (aa) of the Act defines 'hardcore prisoner'. Clause (iv) relates to a person detected with a cell phone etc. being termed as a 'hard core prisoner'. The said provision reads as under:-
2. Definitions.- In this Act, unless the context otherwise, requires,-
xxx xxx xxx (aa) "hard core prisoner" means a person,-
xxx xxx xxx
(iv) who has been detected of using cell phone or in possession of cell phone/SIM card inside the jail premises;
3 of 8 ::: Downloaded on - 05-05-2018 23:23:02 ::: C.W.P. No. 8776 of 2018 (4) The issue for consideration is as to whether on mere detection of cell phone in the jail parole can be rejected.
Section 42 is under Chapter X of the Prisons Act. It is under the heading 'Offences in Relation to Prisons'. Section 42 of the Prisons Act reads as under:-
"42. Penalty for introduction or removal of prohibited articles into or from prison and communication with prisoners. - Whoever, contrary to any rule under Section 59 introduces or removes or attempts by any means whatsoever to introduce or remove, into or from any prison, or supplies or attempts to supply to any prisoner, outside the limits of a prison any prohibited article, and every officer of a prison who, contrary to any such rule, knowingly suffers any such article to be introduced into or removed from any prison, to be possessed by any prisoner, or to be supplied to any prisoner outside the limits of a prison, and whoever, contrary to any such rule, communicates or attempt to communicate with any prisoner, and whoever abets any offence made punishable by this section, shall, on conviction before a Magistrate, be liable to imprisonment for a term not exceeding six months, or to fine not exceeding two hundred rupees, or to both."
The petitioner is admittedly facing trial in the case under Section 42 of the Prisons Act.
A presumption of innocence is available to such an accused like the petitioner who is facing trial in a case under Section 42 of the Prisons Act as also under Sections 120-B and 201 IPC. It is a fundamental principle 4 of 8 ::: Downloaded on - 05-05-2018 23:23:02 ::: C.W.P. No. 8776 of 2018 (5) of criminal jurisprudence that every person accused of an offence is presumed to be innocent unless he is proved guilty and convicted of the charges that are alleged against him. A right of a fair trial is available to a person under going imprisonment as well as an innocent person. An accused is to be presumed innocent until proved to be otherwise in a fairly conducted trial. Therefore, at this stage to decline temporary release on parole to the petitioner would amount to pre-judging the guilt of the petitioner, which is yet to be established and proved. It has still to be proved by the prosecution in the pending trial that a mobile phone had been detected from him. To hold that it had been detected would be quite iniquitous, besides, being improper. In other words, the guilt of the accused can only be said to be established on his conviction by a Court of competent jurisdiction and the same cannot be pre-judged on mere allegations of the charges that have been framed.
Therefore, if a prisoner is not convicted of the said charges, he cannot be labelled as a 'hard core prisoner' within the meaning of Section 2 (aa) of the Act so as to disentitle him for consideration for temporary release on parole.
The claim of the petitioner for parole has been rejected only on the ground that he may abscond. The issue of law and order as distinguished from danger to security of State and maintenance of public order are entirely different. Moreover, nothing has been mentioned as to how a conclusion has been drawn that by releasing the petitioner, he may abscond and there is danger to life, security and peace.
The grounds for declining temporary release on parole have been delineated in Section 6 of the Haryana Good Conduct Prisoners 5 of 8 ::: Downloaded on - 05-05-2018 23:23:02 ::: C.W.P. No. 8776 of 2018 (6) (Temporary Release) Act, 1988 (hereinafter referred to as 'the Act, 1988'), which reads as follows:-
"6. Prisoners not entitles to be released in certain cases.-- {(1) 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 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 public order or cause reasonable apprehension of breach of peace.
(2) The District Magistrate, the State Government or the officer authorized to release the prisoner as provided in sections 3 and 4 of the Act shall take report from the Police within a specified time frame.
(3) In case of non-recommendation for release by the Police, the release granting authority shall pass a speaking order, if he disagrees with the report submitted to him.} A perusal of sub section (1) of Section 6 of the Act shows that notwithstanding anything contained in Section 3 and 4 of the Act, no prisoner is entitled to be released under the Act, if on the report of 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 maintenance of public order. Accordingly, temporary release on parole of a prisoner may be declined on the ground that release of the prisoner would endanger the security of the State or affect the maintenance of public order.
6 of 8 ::: Downloaded on - 05-05-2018 23:23:02 ::: C.W.P. No. 8776 of 2018 (7) Similar issue was there before the Division Bench of this Court rendered in Baljit Singh Vs. State of Punjab and others 2017 (3) ICC
837. Relevant portion of the said judgment is reproduced as under:-
The threat to security of the State is to be understood as an act which may arise from within or outside the State. It is generally understood as an act of aggression from outside, or militant and terrorists operations engineered by foreign agencies. It can also be effected by passing of classified information like documents, secrets, maps etc. to foreign countries or through undesirable foreign links. An act which poses a threat to the State is to be considered as a threat affecting the security of the State. 'Public order', however, is synonymous with public safety. It is something more than mere law and order. Every breach of peace does not lead to public disorder. Maintenance of public order is intended to prevent grave public disorder, which is not the same as maintenance of law and order. The latter is comparatively of a lesser gravity and in fact of local significance. An act which does not affect the public at large or has no impact on it, is not to be taken as an act affecting maintenance of public order. The distinction between law and order and public order is one of degree and extent of reach of the act in question on society. In the case of breach of law and order it affects individuals directly involved as distinct from the public at large. This would raise a law and order problem only. The true test is the potentiality of the act in question. One act may affect some individuals and local persons while another 7 of 8 ::: Downloaded on - 05-05-2018 23:23:02 ::: C.W.P. No. 8776 of 2018 (8) though of a similar nature may impact the public at large. An act which disturbs the even tempo of life of the public at large affects the maintenance of public order. These aspects are to be considered by the competent authorities under Act while deciding to recommend or not to recommend the temporary release of a prisoner on parole and/or passing orders for temporary release by the competent authorities under the Act.
The exercise is not to be lightly conducted and the competent authorities are to apply their mind on the basis of inputs received by them for recommending or passing an order as the case may be for temporary release of prisoners on parole. The stand taken in the impugned order or reply do not suggest as to how the security of the State or maintenance of public order would be endangered. The question of jumping of parole can be secured by asking for a heavy surety. The stand taken in the order of rejection of parole is totally baseless and same has been passed without any substance to show as to how the petitioner is likely to abscond.
In view of the above, the present petition is allowed and the petitioner is directed to be released on temporary parole for a period of four weeks from the date of his release subject to his furnishing adequate surety to the satisfaction of CJM concerned. He is also directed to surrender before the jail authority on expiry of period of four weeks.
April 24, 2018 (DAYA CHAUDHARY)
pooja JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes
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