Rakesh Kumar Sharma vs State Of Rajasthan And Others
2021 Latest Caselaw 5618 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

             ON THE 8th DAY OF DECEMBER, 2021




                                                       .

                            BEFORE


         HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN





                               &

             HON'BLE MR. JUSTICE SATYEN VAIDYA




          Between:-
                   r        to
                CIVIL WRIT PETITION No.7180 of 2021.

          RAKESH KUMAR SHARMA, AGE
          31 YEARS, S/O SH. BHAG SINGH,
          RESIDENT OF VILLAGE AND POST
          OFFICE SARI, TEHSIL SARKAGHAT,


          DISTRICT MANDI, H.P. PRESENTLY
          CONFINED IN MODEL CENTRAL
          JAIL, NAHAN, DISTRICT SIRMOUR, H.P.
                                                       ......PETITIONER.




          (BY MS. ANJALI SONI VERMA, ADVOCATE
          LEGAL AID COUNSEL)





          AND





    1.    STATE OF HIMACHAL PRADESH,
          THROUGH PRINCIPAL SECRETARY
          (HOME) TO THE GOVERNMENT OF
          HIMACHAL PRADESH, SHIMLA-2.

    2.    DISTRICT MAGISTRATE, MANDI,
          DISTRICT MANDI, H.P.

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

    4.    SUPERINTENDENT OF JAIL, MODEL




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                                      2




         CENTRAL JAIL, NAHAN, DISTRICT
         SIRMAUR, H.P.




                                                             .
                                                ......RESPONDENTS.





         (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 THE RESPONDENTS/STATE)





               This petition coming on for admission after
    notice this day, Hon'ble Mr. Justice Tarlok Singh

    Chauhan, passed the following:

                          ORDER

The request made by the petitioner for releasing

him on parole has been turned down by the respondents,

constraining him to file the instant petition, for the grant of

following substantive relief:-

"Issue a writ of mandamus directing respondents to grant parole to the petitioner, in a time bound

manner, as per law laid down therefor."

2. Respondents No.1, 3 and 4 have filed the reply

through respondent No.3 wherein it is submitted that the

petitioner has been convicted for offences punishable

under Section 376(2)(i) of IPC, Section 4 of the Protection of

Children from Sexual Offences Act, 2012 and Sections 342,

352 and 452 of IPC and presently he is undergoing

imprisonment at Model Central Jail, Nahan, District Sirmaur,

.

H.P. It is further submitted that recommendation of

concerned District Magistrate is mandatory for the grant of

parole. It is also submitted that the local police have not

recommended the parole case of the petitioner as the

complainant-party has strongly opposed his release on

parole. r

3. On 06.12.2021, the Court passed the following

orders:-

"Let report of the local police that resulted in the

rejection of the request of the petitioner for grant of parole be placed for perusal of the Court. List on 08.12.2021."

4. In compliance to the aforesaid orders, the

respondents have placed before us the report that was

submitted by the Superintendent of Police, Mandi, District

Mandi, H.P. to the District Magistrate, Mandi, District Mandi,

H.P. which goes to reveal that even though the general

public, Panchayat and other residents have no objection to

the petitioner being released on parole, however, the

complainant has opposed the release of petitioner on

parole on the ground that the sister of the petitioner had

threatened her over telephone that as and when the

.

petitioner is released, he would kill her and further that

when the petitioner had earlier been released in the year

2018, he had threatened her and, therefore, in case the

petitioner is now released on parole, she has apprehension

and threat to her life at the hands of the petitioner.

5. Now, the moot question is whether the request

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

the petitioner has been convicted for a serious and heinous

offence.

6. 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.

7. 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."

8. 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.

9. 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 petitioner 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.

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

per the instructions imparted by the District Magistrate,

Mandi, H.P. the recommendation of parole to the petitioner

has been rejected on the ground that he may cause danger

to the victim and her family, if released on parole. 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.

11. 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.

12. 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.

13. Similar reiteration of law can also be found in the

judgments rendered by Division Bench of this Court in

CWP No. 1664 of 2020, titled as Paramjit Singh @

Pamma vs. State of H. P. & Ors., decided on 07.08.2020

and CWP No. 1497 of 2020, titled as Anil Kumar vs.

State of H. P. & Ors., decided on 07.10.2020.

14. In the given facts and circumstances, we are

persuaded to allow the present writ petition filed by the

petitioner by setting aside the impugned rejection order

dated 05.06.2021 (Annexure P-5) and extending the benefit

of parole for a period of 28 days, on his furnishing personal

bond in the sum of Rs. 1.00 lakh with two sureties in the

sum of Rs. 15,000/- each, to the satisfaction of the

Superintendent Jail, Model Central Jail, Nahan, District

Sirmaur, H.P. The petitioner shall surrender before the

Superintendent Jail, Model Central Jail, Nahan, District

Sirmaur, H.P immediately on expiry of 28 days of parole.

However, his parole shall be liable to be cancelled, in case

the petitioner breaches any of the conditions of the parole

.

order and/or creates law and order problems, which shall be

treated as a negative factor for consideration of his similar

prayers in the future.

15. Accordingly, the writ petition is disposed of, so

also pending miscellaneous application, if any.

                                      (Tarlok Singh Chauhan)
                   r                            Judge

                                           (Satyen Vaidya )
                                                Judge



    8th December, 2021.
    (krt)