Himachal Pradesh High Court

Surma Devi vs State Of Rajasthan And Others on 16 August, 2021

Bench: Tarlok Singh Chauhan, Satyen Vaidya

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
              ON THE 16th DAY OF AUGUST, 2021




                                                       .
                            BEFORE





         HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
                              &
             HON'BLE MR. JUSTICE SATYEN VAIDYA





                CIVIL WRIT PETITION No. 3482 of 2021

    Between:-

    SURMA DEVI,
    W/O SH. MEHAR SINGH,

    RESIDENT OF VILLAGE KULHA,

    P.O. MUNDHAL THANA,
    TEHSIL TYUNI,

    DISTRICT DEHRADUN,
    UTTRAKHAND.                          ......PETITIONER

    (BY MS. SUNITA SOOD, ADVOCATE)



    AND

    1.    STATE OF HIMACHAL PRADESH,




          THROUGH PRINCIPAL SECRETARY
          (HOME) THE GOVERNMENT OF
          HIMACHAL PRADESH, H.P.





          SECRETARIAT, CHOTTA SHIMLA,
          SHIMLA-1, H.P.





    2.    DIRECTOR GENERAL OF PRISONS,
          HIMACHAL PRADESH,
          BLOCK NO.31, SDA
          COMPLEX, KASUMPTI,
          SHIMLA-9.

    3.    SUPERINTENDENT OF JAIL, KANDA,
          DISTRICT SHIMLA, H.P.

    4.    SENIOR SUPERINTENDENT OF POLICE,
          DEHRADUN, UTTRAKHAND.
                                    ......RESPONDENTS




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                                       2




    (SH.ASHOK SHARMA, ADVOCATE GENERAL
    WITH SH. RAJINDER DOGRA,
    SENIOR ADDITIONAL ADVOCATE GENERAL,




                                                                .
    SH. VINOD THAKUR,





    SH. SHIV PAL MANHANS,
    ADDITIONAL ADVOCATE GENERALS
    AND SH. BHUPINDER THAKUR,
    DEPUTY ADVOCATE GENERAL,





    FOR RESPONDENTS NO. 1 TO 3)

    (SH. SANDEEP SINGH PANWAR,
    S.O. P.S. TYUNI, DEHRADUN,
     PRESENT IN PERSON. )


                         r         to
                  This petition coming on for orders

    Hon'ble Mr. Justice Tarlok Singh Chauhan, passed the
                                                                      this day,

    following:

                             ORDER

The request made by the husband of the

petitioner for releasing him on parole has been turned down

by the respondents, constraining the convict to file the

instant petition, through his wife, for the grant of following

substantive relief:-

"Issue a writ of mandamus directing respondent No.2 to grant parole to the petitioner, in a time bound manner, as per law laid down therefor."

2. Respondents No.1 to 3 have filed their reply

wherein it has been submitted that the convict is

undergoing imprisonment at Model Central Jail, Kanda,

District Shimla, H.P. in connection with case FIR No.

83/2016 for the offices punishable under Sections 18,20,

25/29-61-85 of ND& PS Act. It was further submitted in the

reply that recommendation of concerned District

Magistrate is mandatory for the grant of parole. It was

further submitted that the Superintendent of Police, District

Dehradun, Uttrakhand, has not recommended the parole

and has submitted that in case the convict is released on

parole, he may violate the rules and provisions and again

indulge himself in the same kind of offence.

3. Respondent No.4 has also filed a separate reply

wherein it has been stated that the the parole application of

the convict has been rejected on the report of the local

police.

4. Now, the moot question is whether the request

for grant of parole can be rejected only on the ground that

the convict has been convicted for a serious and heinous

offence.

5. It is more than settled that the grant of remission

or parole is not a right vested with the prisoner. It is a

privilege available to the prisoner on fulfilling certain

conditions. This is a discretionary power which has to be

exercised by the authorities conferred with such powers

under the relevant rules/regulations. The Court cannot

exercise these powers, though once the powers are

exercised, the Court may hold that the exercise of powers is

not in accordance with rules.

6. 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 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 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:

(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 Prisons.

(v) For parole, specific reason is required, whereas

furlough 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, 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 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 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 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 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 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 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 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 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, habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquility etc.

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 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 aforesaid ground i.e. on its merits."

7. It is evidently clear from the aforesaid judgment

that 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.

8. Judged in light of the aforesaid exposition of law,

the only ground taken by the respondents to reject the

request of parole is that the convict has been convicted for

a serious and heinous offence and nothing more, cannot

itself be a ground for denying the convict the parole in

accordance with the provisions of H.P. Good Conduct

Prisoners (Temporary Release) Act, 1968.

9. Before parting, it needs to be observed that as

per the instructions imparted by the District Magistrate,

Dehradun, the recommendation of parole to the convict has

been rejected on the ground that he may violate the rules

and provisions and again indulge himself in the same kind

of offence. Even otherwise, such questions have already

been considered and answered in the judgment referred to

here-in-above, which clearly provides that it is only cases

where there is some material before the Court, parole

should be extended by taking a humanistic approach so as

to afford the convict an opportunity to solve his personal

and family problems and enable him to maintain his links

with the society.

10. Apart from the above, we may, at this stage,

take note of a recent judgment of Hon'ble Supreme Court in

case titled as Shor Versus State of Uttar Pradesh and

Anr., in Writ Petition (Criminal) No. 58 of 2020,

decided on August 05, 2020, wherein the only ground for

opposing release of the petitioner therein on probation was

that he had been convicted for grave and serious offences

and in case he is released, there would be a chance that he

may repeat the offences, which would send a negative

message against the justice system in the society. The

Hon'ble Supreme Court has also held as under:

.

"Pursuant to our order dated 30.10.2017, an order dated 22.01.2018 has been passed in which it is

recorded that though the petitioner has undergone 28 years 08 months and 21 days without remission (otherwise including remission) having undergone imprisonment of 37 years 01 month and 18 days,

yet premature release cannot be given in the facts of this case as the prisoner along with 20 co- accused committed the murder of 11 persons with

deadly weapons and injured others.

This being the case, the order states " premature release of this kind of prisoner would send a negative message against the justice system in the

society". It was then also mentioned that Senior Superintendent of Police and the District

Magistrate have confirmed that the prisoner is not incapacitated from committing crime.

Section 2 of the United Provinces Prisoners Release on Probation Act, 1938 (" the U.P. Act" for short)

states:

"2. Power of Government to release by licence on conditions imposed by them.

Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure, 1898 (Act V of 1898), where a person is confined in prison under a sentence of imprisonment and it appears to the State Government from his antecedents and his conduct in the prison that he is likely to abstain from crime and lead a peaceable life, if he is released from prison, the State Government may by licence permit him to be released on condition that he be placed

under the supervision or authority of a Government Officer or of a person professing the same religion as the prisoner, or such

.

secular institution or such society belonging to

the same religion as the prisoner as may be recognized by the State Government for this purpose, provided such other person, institution or society is willing to take charge of

him."

It is clear that under this Section what has to be seen by the State Government is (i) antecedents

(ii) conduct in the prison and (iii) the person, if released, is likely to abstain from crime and lead a peaceable life. If having regard to these factors,

the person is released, the State Government may

do so on conditions stated in the Section. A reading of the order dated 22.01.2018 shows that the Joint Secretary, Government of U.P. has

failed to apply his mind to the conditions of Section 2 of the U.P. Act. Merely repeating the fact that the crime is heinous and that release of such a person

would send a negative message against the justice

system in the society are factors de hors Section 2. Conduct in prison has not been referred to at all

and the Senior Superintendent of Police and the District Magistrate confirming that the prisoner is not "incapacitated" from committing the crime is not tantamount to stating that he is likely to abstain from crime and lead a peaceable life if released from prison.

11. The issue in question is otherwise squarely

covered by the judgment rendered by a Co-ordinate Bench

of this Court in CMP No. 3970 of 2020 in CWP No. 2931

of 2019, titled Mrs. Har Dei versus State of Himachal

Pradesh & others, decided on 03.06.2020 and the

judgment passed by this Bench in CWP No. 414 of 2020,

titled Mrs. Kavita Thakur versus State of H.P. and

others, decided on 25.06.2020, CWP No. 529 of 2018,

titled Jagat Ram Versus State of Himachal Pradesh

and others, decided on 26.06.2012 and CWP No. 663 of

2020, titled Sajid versus State of Himachal Pradesh

and others, decided on 29.06.2020.