Through Superintendent Of Jail vs Unknown
2021 Latest Caselaw 5066 HP

                                                     Reportable

      IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA




                                                          .
                   ON THE 27th DAY OF OCTOBER, 2021





                             BEFORE
                 HON'BLE MR. JUSTICE MOHAMMAD RAFIQ





                        CHIEF JUSTICE
                                &
                   HON'BLE MS. JUSTICE SABINA




      Between:
                      r       to
              CIVIL WRIT PETITION No. 3057 of 2021

      VISHAL BANSAL, SON OF SH. VINOD
      KUMAR, AGED ABOUT 36 YEARS, R/O
      WARD NO. 2, OLD AMB ROAD, GAGRET,
      TEHSIL GHANARI, DISTRICT UNA, H.P.


      THROUGH SUPERINTENDENT OF JAIL,
      CENTRAL JAIL NAHAN.




                                      ......PETITIONER (IN JAIL)

      (BY MR. SUNIL KUMAR AND MR. PANKAJ





      SAWANT, ADVOCATES.)

      AND





    1. STATE OF HP, THROUGH ITS PRINCIPAL
        SECRETARY DEPARTMENT OF HOME
        (JAIL), SHIMLA, DISTT. SHIMLA-171002
        (H.P.)
     2. THE DIRECTOR GENERAL PRISON
        CORRECTIONAL SERVICES OFFICER AT
        SHIMLA-171009 (HP).
     3. INSPECTOR GENERAL OF PRISONS &
        CORRECTIONAL SERVICES, HIMACHAL
        PRADESH, SHIMLA-171009.




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    4. THE SUPERINTENDENT OF JAIL,
       MODEL CENTRAL JAIL NAHAN,
       DISTRICT SIRMOUR, (HP).




                                                                .
                                                    ...RESPONDENTS





     (BY MR. ASHOK SHARMA, ADVOCATE
     GENERAL WITH MS. RITTA GOSWAMI





     AND    MR.   NAND    LAL   THAKUR,
     ADDITIONAL ADVOCATE GENERAL
     AND MS. SEEMA SHARMA, DEPUTY
     ADVOCATE GENERAL.)
    ____________________________________________________





                  This petition coming on for admission this day,

      Hon'ble Mr. Justice Mohammad Rafiq, passed the following:

                         ORDER

This writ petition has been filed by Vishal Bansal,

challenging order dated 17th April, 2021 (Annexure P-3),

whereby the application of the petitioner for grant of parole has

been rejected by the Director General, Prison and Correctional

Services, Himachal Pradesh.

2. It is contended that the petitioner was arrayed as

accused in case FIR No. 26/2016, dated 26.03.2016, registered

with Police Station Gagret, Distt. Una, for the offences under

Sections 302, 392, 341, 120B & 201 of the Indian Penal Code.

It is further contented that the petitioner had applied for

anticipatory bail, which was dismissed by this Court and

subsequently by the Hon'ble Supreme Court. However, the

petitioner surrendered before this Court on 16.06.2016 pursuant

to the order of the Hon'ble Supreme Court passed in SLA (Crl)

.

No. 4371 of 2016 and faced trial. He was eventually convicted

for the offences punishable under Sections 302, 392, 201, 341

& 120B of IPC vide judgment dated 20th February, 2020 by the

Additional Sessions Judge-1, District Una, H.P. Ever since he

surrendered before this Court on 16.06.2016, he is in jail and

been dismissed

by the

thus, has completed incarceration of more than 5 years and 4

months. The application of the petitioner for regular parole has

Director General, Prison and

Correctional Services, Himachal Pradesh on 17th April, 2021 on

the ground that the District Magistrate has not recommended

so.

3. Mr. Pankaj Sawant, learned Counsel for the

petitioner, argues that the petitioner has a family comprised of

his old aged mother, wife and two minor daughters. He further

argues that the wife of the petitioner has also filed a petition

under Section 13 of the Hindu Marriage Act, for divorce against

the petitioner due to his inability to maintain her and their

children. The petitioner wants to maintain and develop good

relationship with his wife and make arrangements for the

maintenance of his wife and children. He also wants to look

after his old aged mother. For all these reasons, he had

submitted application dated 27.08.2020 for grant of parole

.

through proper channel. Respondent No. 4-the Superintendent

of Jail, Model Central Jail, Nahan, District Sirmour, (HP) had

duly recommended his case for release on parole. But the same

has been mechanically rejected by respondent No. 2-the

Director General, Prison Correctional Services Officer at

Shimla. The District Magistrate in his report has stated that

during verification, the statement of concerned Pradhan NAC

Gagret namely Kiran Bala, W/o Sh. Shyam Verma, Up Pradhan

NAC Gagret, mother of life convict have been recorded. He has

recommended against release of the petitioner on parole as the

son of the deceased had raised objection against release of the

petitioner on parole and expressed the apprehension that if the

petitioner is released on parole, he may abscond. It is

contended that there is no justification for such apprehension,

particularly when the Superintendent Jail, Model Central Jail,

Nahan, in Columns No. 13 and 17 of his report (Annexure P-5)

has categorically recorded that the conduct of the petitioner in

jail has throughout been satisfactory and there is no pending

case against him. It is denied that the petitioner was absconding

during trial. In fact, he had availed his right to apply for

anticipatory bail upto the Supreme Court and was eventually

allowed to surrender before this Court.

.

4. The learned Counsel for the petitioner in support of

his submissions has relied upon the judgment passed by a

Division Bench of this Court in CWP No. 663 of 2020, titled as

Sajid versus State of Himachal Pradesh & others, decided on

29th June, 2020, in which case also, parole application of the

petitioner seeking parole was rejected on the basis of non-

recommendation of the District Magistrate, but later on, he was

granted parole on the basis of his incarceration for about seven

years and his good conduct in jail, with a rider that his parole

would be liable to be cancelled, in case he breaches any of the

conditions of the parole and/or creates law and order problems

and the same shall be treated as a negative factor for

consideration of his similar prayers in future.

5. On the other hand, Ms. Seema Sharma, learned

Deputy Advocate General, argues that the petitioner did not

immediately surrender during investigation and the proceedings

under Section 82 of the Criminal Procedure Code for getting

him declared as a proclaimed offender had to be initiated. But

eventually, he surrendered before this Court on 16th June, 2016.

She further argues that as per Rule 3 of the Himachal Pradesh

Good Conduct Prisoners (Temporary Release) Rules, 1969, the

Superintendent of Jail while considering the prayer for parole,

.

shall take into consideration the prisoner's past criminal history

and behavior in the prison since admission as recorded in his

case file and the likelihood of his not abusing the concession of

parole, if granted. Further, the District Magistrate, while

recommending the parole/furlough cases of prisoners will

bond ror

specify whether the prisoner shall be required to furnish the

security personal bond or both

recommending release of the prisoner on his furnishing a and while

personal bond, his family ties and relationships, his reputation,

character and monetary conditions and his roots in the

community shall also be taken into consideration. She referred

to the supplementary affidavit filed on 8th September, 2021 and

in particular, referred to the report dated 26.08.2021, of the

Superintendent of Police, District Una, for providing

antecedents of the petitioner.

6. We have given our anxious consideration to the

rival submissions and perused the material on record.

7. The very purpose of grant of parole is to give an

opportunity to the convict to look after his family left behind and

also to join the mainstream of the society. It is intended to

ensure that eventually when he comes out of the jail, he joins

the society as a reformed citizen. In order however to decide

.

whether or not he should be granted the facility of parole,

conduct of the prisoner during his stay in jail is very much

relevant. In the present case, the Superintendent of Jail, Model

Central Jail, Nahan, in Columns No. 13 and 17 of his report

dated 7th September, 2020 (Annexure P-5) has categorically

recorded that the conduct of the petitioner in jail has throughout

been satisfactory and there is no pending case against him. It

is not in dispute that the petitioner has remained in jail for more

than 5 years and 4 months. Merely because the family of the

complainant has raised objections to the temporary release of

the petitioner on parole and voiced apprehension of his

absconding, the case of the petitioner for grant of parole cannot

be rejected. Even otherwise, there is no basis for the

assumption that if granted parole, he will abscond.

8. The Supreme Court in case titled as Asfaq versus

State of Rajasthan and others, reported in 2017 (15) SCC 55,

while dealing with this aspect of the matter, has held that

provisions of parole and furlough, 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 the society. The observations made by the

.

Hon'ble Supreme Court in paras 18 & 22 of the aforesaid

judgment are relevant to be extracted hereinbelow:-

"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."

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 categorised 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 out rightly.

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

9. The principles laid down in the aforesaid judgment

were reiterated by the Supreme Court in case titled as

- 10 -

Mohammad Shamsuddin versus State of Rajasthan & others,

reported in (2019) 14, SCC 333. It is relevant to extract para-3

.

of the judgment herein below:-

3. We may at this stage quote the observations of this Court in para 17 of its judgment in Asfaq

v. State of Rajasthan which are: (SCC p. 62) "77. 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, albeit for (sic short) periods. These gestures

- 11 -

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."

10. Even this Court in case titled as Bir Singh Vs. the

State of Himachal Pradesh and others, reported in 1985 CRL.

L.J. 1458, in para 3 has observed that in the absence of an

opportunity to watch his conduct outside jail for the reason of

his not having been released on parole/furlough is again not a

factor which could be legitimately pressed into service

on the facts and in the circumstances of the case. There

is no reason to assume that if the petitioner is granted

the benefit of premature release, he would once again

display criminal tendency. Such an assumption

overlooks not only that the petitioner is not shown to be

a habitual offender but also the reformatory aspect of

the penalty procedure as well as the good record of the

petitioner during the entire period of his imprisonment.

11. In view of the above deliberation, we are

persuaded to allow the present writ petition filed by the

petitioner by setting aside the order dated 17th April, 2021

(Annexure P-3) and extending the benefit of parole for a period

- 12 -

of 15 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 of Jail, Model Central Jail,

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

Superintendent of Jail, Model Central Jail, Nahan, H.P

immediately on expiry of 15 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.

12. Accordingly, the writ petition is disposed of, so also

pending miscellaneous application(s), if any.

( Mohammad Rafiq ) Chief Justice

( Sabina ) Judge October 27, 2021 (hemlata)