Himachal Pradesh High Court
Sandeep Kumar vs State Of H.P. & Ors on 3 January, 2024
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 8626/2023 Decided on : 3.1.2024 .
Sandeep Kumar .....Petitioner
Versus
State of H.P. & ors. ....Respondents
Coram:
of
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1No rt For the Petitioner: Mr. Bhupinder Singh Ahuja, Advocate.
For the Respondents: Mr. I. N. Mehta, Mr. Y.W. Chauhan, Sr. Addl. A.Gs with Mr. Navlesh Verma & Ms. Sharmila Patial, Addl. A.Gs.
____________________________________________________________________ Justice Tarlok Singh Chauhan (oral) The request made by the petitioner for his release on parole in order to meet his family members has been rejected by the respondents constraining him to file the instant petition for the grant of following substantive reliefs:
"(i) That the impugned order of non recommendation of temporary release on parole by respondent number 5 vide letter dated June 2023 Annexure P-3 and because of non recommendation the case of parole is rejected by 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 04/01/2024 20:33:20 :::CIS 2
respondent number 3 vide Annexure P-4 dated 14th July 2023, 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 there for."
2 It is not in dispute that the petitioner has been convicted for offences under Section 457 of the Indian Penal Code (for short, IPC) and Section 8 of Protection of Children of from Sexual Offences Act, 2012 (for short, "POCSO Act") and has been sentenced to undergo 5 years rigorous imprisonment rt and to pay a fine of Rs.4000/- and in default of payment of fine, to further undergo simple imprisonment for six months vide judgment dated 28.9.2021. It is further not in dispute that the petitioner has completed substantive sentence of 2 years 3 months and 4 days as on 8.11.2023 excluding remission.
3 The request made by the petitioner for grant of parole has been turned down mainly on the ground that not only the mother of the victim has objections to the release of the petitioner, but also the Pradhan of Gram Panchayat and even inhabitants of locality have opposed release of the petitioner on the ground that the petitioner may indulge in criminal activities and create nuisance in local vicinity and repeat the same offence(s) given the fact that the petitioner is a hardcore ::: Downloaded on - 04/01/2024 20:33:20 :::CIS 3 criminal and has already been convicted and sentenced in the following cases:
(i) in case FIR No. 358/2019, under Section 174-A of .
Indian Penal Code, to undergo simple imprisonment for a period of 01 year by the Learned JMIC Court No. 2 Mandi, District Mandi, Himachal Pradesh vide judgment dated 16/04/2022.
(ii) in case FIR No. 43/2015, dated 28.7.2015 under Section 457 IPC and Section 8 POCSO Act registered of at Police Station Dharampur, District Mandi, H.P.
(iii) in case FIR No. 72/2009, under Sections 325, 323 & 341, to undergo rigorous imprisonment for a rt period of 02 years of Indian Penal Code by the Learned JMIC Court No. 2 Mandi, District Mandi, Himachal Pradesh and sentenced vide judgment dated 19/07/2023. The sentence in abovementioned cases shall run after the expiry of previous sentence.
Not only this, the petitioner is also facing following criminal cases:-
(i) Case FIR No. 51/2016 dated 24-05-2016 under section 341, 323 & 504 of IPC registered at Police Station Dharampur, District Mandi, H.P pending trial at Gram Panchayat Syeoh, District Mandi, H.P.
(ii) Case FIR No. 145/2019 dated 06-09-2019 under section 353, 504 & 506 of IPC registered at Police Station Dharampur, District Mandi, H.P pending ::: Downloaded on - 04/01/2024 20:33:20 :::CIS 4 trial in the court of Ld. ACJM Sarkaghat, District Mandi, H.P. 4 It is vehemently argued by the learned counsel for .
the petitioner that even a convict is entitled to parole to maintain family and social ties and that even the Hon'ble Supreme Court in Asfaq vs. State of Rajasthan (2017) 15 SCC 55 has recognized reformation as one of the objectives behind sentence and punishment, which provides justification of for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to rt solve their personal and family problems but also to maintain their links with the society and another objective, which this theory underlines is that even such convicts have right to breathe fresh air, albeit for short 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.
5 Strong reliance in support of such contention is placed on the judgment in Asfaq's case (supra), more particularly, paras 17 and 18 thereof, which read as under:-
17) From the aforesaid discussion, it follows that amongst the various grounds on which parole can be granted, the ::: Downloaded on - 04/01/2024 20:33:20 :::CIS 5 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.
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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 objectives which a State intends to achieve by punishing the culprit are:
deterrence, prevention, retribution and reformation. When of 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 rt 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, al beit 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 2 (2000) 3 SCC 394 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 ::: Downloaded on - 04/01/2024 20:33:20 :::CIS 6 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.
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Furloughs or parole can help prepare offenders for success.
6 On the other hand, learned Additional Advocate General has vehemently opposed the prayer made by the of petitioner on the ground that since the petitioner is a hardcore criminal, his release on parole is likely to endanger the security 7 rt of the State and even the maintenance of public order.
We have heard the learned counsel for the parties and have also gone through the material placed on record.
8 At the outset, it shall be necessary to refer to relevant provisions of the H.P. Good Conduct Prisoners (Temporary Release) Act, 1968, (for short, "the Act"), as contained in Sections 3, 6 and 10, which 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 ;::: Downloaded on - 04/01/2024 20:33:20 :::CIS 7
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 cause.
(2). The period for which a prisoner may be released shall be determined by the Government so as not to exceed-
(a) Where the prisoner is to be released on the ground of 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 rt 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 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.
10. Power to make rules.- (1) The Government may, by notification, make rules for carrying out the purposes of this Act.
::: Downloaded on - 04/01/2024 20:33:20 :::CIS 8(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for -
(a) the execution by the prisoner (including his sureties) of bond for his good behaviour during the release period and .
for his surrender on the expiry of such period;
(b) the amount for which and the form and manner in which such bonds shall be furnished;
(c) the forfeiture of the amount of bond in case of breach of any of its terms;
(d) the conditions on which and the manner in which of prisoners may be released temporarily under this Act;
(e) the manner in which the District Magistrate shall be consulted before a prisoner is released; and rt
(f) the extent to which and the manner in which journey expenses of poor prisoners shall be borne by the Government.
(3) All rules under this section shall, as soon as may be after they are made, be laid before the Legislative Assembly."
9 Section 3 of the Act empowers the State Government, or any officer duly authorized by it in that behalf, in consultation with the District Magistrate, to temporarily release for a specified period any prisoner, if the government is satisfied about the existence of the grounds mentioned in the said section.
10 Section 10 of the Act confers upon the Government the power to frame rules for carrying out the purposes of the Act ::: Downloaded on - 04/01/2024 20:33:20 :::CIS 9 and it specifically provides for the enactment of rules prescribing the condition on which and the manner in which prisoner can be released temporarily under the Act.
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11 In exercise of powers conferred by Section 10 of the Act, the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Rules, 1969 have been duly enacted.
12 Sub-rule (2) of Rule 3 of the said rules requires the of Superintendent of Jail to forward the application of the prisoner for temporary release with his report to the District Magistrate rt of the District to which the prisoner belongs. The District Magistrate, after consulting the Superintendent of Police of his District, is required to forward the case with his recommendations to the Inspector General of Prisons. The Inspector General of Prisons is then required to record his views on the case whether the prisoner is to be released or not and submit the same to the releasing authority, that is, the Government or the authority to whom the powers are delegated, for orders. The District Magistrate, before making any recommendation, is under a statutory duty to verify the facts and grounds on which release has been requested and to give an opinion "whether the temporary release on parole or furlough is opposed on grounds of prisoner's presence being dangerous ::: Downloaded on - 04/01/2024 20:33:20 :::CIS 10 to the security of State or prejudicial to the maintenance of public order".
13 The provisions of section 6 and sub-rule (2) of rule 3 .
make it abundantly clear that no prisoner would be entitled to be released on parole or furlough if the competent authority is satisfied that such release is likely to endanger the "security of State" or the maintenance of "public order".
of 14 Adverting to the facts of the instant case, learned counsel for the petitioner is not in a position to dispute that rt apart from conviction and sentence now being undergone by the petitioner, he is accused of various other offences, as detailed above, which not only goes a long way, but establishes beyond all reasonable doubts that the petitioner is a hardcore prisoner or, as is normally termed, "habitual offender" and it is on account of tendency to commit crime again and again that he is facing the above cases.
15 It is more than settled that public purpose in granting parole or furlough is ingrained in the reformation theory of sentencing, as referred to in paras 17 and 18 in Asfaq's case and the Court is also required to keep in mind other competing public interest and only then take a call as to whether in a particular case parole or furlough is to be granted ::: Downloaded on - 04/01/2024 20:33:20 :::CIS 11 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, deterrence and prevention.
16 In coming to such conclusion, we are duly supported of by the observations of the Hon'ble Supreme Court in Asfaq's case (supra) in para 19 thereof, which reads as under:-
rt
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, 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 address the question as to whether the convict is such a person ::: Downloaded on - 04/01/2024 20:33:20 :::CIS 12 who has the tendency to commit such a crime or he is showing tendency to reform himself to become a good citizen.
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17 In view of aforesaid discussions and for the reasons stated hereinabove, we find no merit in the instant petition and the same is accordingly dismissed, so also the pending application(s), if any.
of
(Tarlok Singh Chauhan)
Judge
rt (Satyen Vaidya)
3.1.2024 Judge
(pankaj)
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