Himachal Pradesh High Court
Khers) vs State Of Rajasthan And Others on 10 May, 2022
Bench: Mohammad Rafiq, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 10th DAY OF MAY, 2022
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
CHIEF JUSTICE
&
HON'BLE MR. JUSTICE SANDEEP SHARMA
Between:
r to
CIVIL WRIT PETITION No. 1636 of 2022
RITESH KUMAR, AGE 32 YEARS, S/O
SH. RAJINDER PRASAD, R/O VILLAGE
ISMAILPUR AMBAPARA (KURMI
KHERS), POST OFFICE & PS
BANGARMAU, DISTT. UNNAV, U.P.
THROUGH SUPERINTENDENT OF
JAIL, MODEL CENTRAL JAIL, NAHAN,
H.P.
...PETITIONER
(BY MR. MOHAR SINGH, ADVOCATE.)
AND
1. STATE OF HIMACHAL PRADESH,
THROUGH ITS PRINCIPAL
SECRETARY, DEPARTMENT OF HOME
(JAIL), SHIMLA, H.P.
2. THE DIRECTORATE OF PRISONS AND
CORRECTIONAL SERVICES, SHIMLA
(H.P), THROUGH ITS DIRECTOR
GENERAL.
3. THE SUPERINTENDENT OF JAIL,
MODEL CENTRAL JAIL, NAHAN,
DISTRICT SIRMOUR, H.P.
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4. THE DISTRICT MAGISTRATE UNNAO,
DISTT. UNNAO, UTTER PRADESH.
.
... RESPONDENTS
(BY MR. VIKAS RATHORE,
ADDITIONAL ADVOCATE GENERAL.)
____________________________________________________
This petition coming on for admission this day,
Hon'ble Mr. Justice Mohammad Rafiq, passed the following:
ORDER
Petitioner has been convicted for offences under
Section 302 of the Indian Penal Code by Sessions Judge,
District Sirmour at Nahan, Himachal Pradesh. He has been
sentenced to undergo rigorous imprisonment for life and to pay
a fine of Rs.10,000/- with default clauses vide judgment dated
27.11.2019. By means of the present petition, he seeks parole
for 28 days.
2. As per the averments made in the petition, the
petitioner applied for parole in the year 2020 to meet his old
aged parents and family members. His application was rejected
by respondent No.3 on 25.03.2021. The petitioner subsequently
moved another application for parole in the year 2021, which
was also rejected on the basis of
non-recommendation from the concerned District Magistrate.
Aggrieved against the rejection of his applications for grant of
parole, the petitioner has preferred the present petition
.
praying that the rejection of his applications are in violation of
his legal rights guaranteed under the Constitution as well as the
Himachal Pradesh Good Conduct Prisoners (Temporary
Release) Act, 1968 (in short the Act) and Rules 1969 framed
thereunder.
3.
In reply, the respondents while opposing the
petition have submitted that in accordance with provisions of
the Act & the Rules framed thereunder, the parole applications
of the prisoners are to be forwarded to the District Magistrate of
the concerned district for his recommendation. The District
Magistrate after consulting the Superintendent of Police and
on making such inquiries as deemed fit is to make his
recommendation with regard to the release of the convict. It
has been further submitted that in case the District Magistrate,
on inquiry is satisfied that the release of the convict is likely to
endanger the security of the State or the maintenance of
public order then the convict is not entitled to be released as
per the provisions of Section 6 of the Act.
Learned Additional Advocate General submitted
that the matter regarding the parole of the petitioner was got
inquired by the District Magistrate Unnav, Uttar Pradesh
through the Superintendent of Police, District Unnav, Uttar
.
Pradesh. After conducting necessary inquiry, the parole
case of the petitioner was not recommended by the District
Magistrate Unnav.
4. We have heard learned counsel for the parties and
gone through the record of the case.
5.
Vide judgment dated 27.11.2019, petitioner has
been convicted for the offence under Section 302 of
the Indian Penal Code and has been sentenced to undergo
rigorous imprisonment for life and to pay a fine of Rs.10,000/-
with default clauses. As per certificate (Annexure P-3)
issued by the Superintendent Jail, Model Central Jail Nahan,
appended with the petition, the petitioner has completed 6
years, 6 months and 4 days of his sentence. The certificate
also reflects that the conduct of the petitioner in jail has been
satisfactory.
6. We have also seen communication dated 17th
August, 2021, sent by the District Magistrate to the
Superintendent Jail, Model Central Jail, Nahan, District Sirmour,
in which it is mentioned that the report from the Superintendent
of Police, Unnav has been received. As per his report dated
30.06.2021, the convict has two brothers and two wives and
he has no land in his name. The sole reason given in the report
.
for
rejecting petitioner's application for release on parole is that
his release will send wrong message to the society. The reply
to the writ petition also states that the
petitioner belongs to the State of Uttar Pradesh and there is
likelihood
7.
of his
toabsconding
In Asfaq Vs. State of Rajasthan and others,
r during parole.
(2017) 15 SCC 55, the Apex Court considered various
precedents in timeline with respect to
parole/remission/premature release-furlough and emphasized
on reformation theory for granting opportunity to the convict to
reform himself. It was observed that a convict, 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 must also breathe
fresh air for at least sometime, provided they maintain good
conduct consistently during incarceration and show a tendency
to reform. Relevant paragraphs of the judgment read thus:-
"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, albeit 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 to 21 xxxxx xxxxx xxxxx xxxxx xxxxx
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 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 (2) v. State (UT of
Delhi) (1980) 3 SCC 488, Maneka Gandhi v. Union
of India and another (1978) 1 SCC 248 and Charles
Sobraj v. Superintendent Central Jail (1978) 4 SCC
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. In Shor Vs. State of Uttar Pradesh WP(Criminal)
No. 58 of 2020, decided on 05.08.2020, while considering
Section 2 of the United Provinces Prisoners Release on
Probation Act 1938, the Supreme Court held that 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 of the
Act. Relevant para of the judgment
reads as under:-
"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. Also having
regard to the long incarceration of 29 years
(approx.) without remission, we do not wish
to drive the petitioner to a
further proceeding challenging the order
dated 22.01.2018 when we find that the
order has been passed mechanically and
without application of mind to Section 2 of
the U.P. Act. In these circumstances, we set
aside the aforesaid order and set the
petitioners free. It will be open for the
State Government to impose such
conditions as are mentioned in Section 2 of
the U.P. Act on the footing
that the petitioners now stand released
forthwith.
The Writ Petitions stand allowed in the
aforesaid terms."
9. In light of the above decisions, the ground
taken by the respondents that petitioner's release on parole
would send negative message to the society, cannot be
countenanced. The issue in question is otherwise squarely
covered by a judgment rendered by a Coordinate Bench of
- 10 -
this Court in CWP No.1497/2020, dated 07.10.2020, titled
.
as Anil Kumar Vs. State of Himachal Pradesh & Others.
10. In view of the above, the present petition is
allowed. Respondents are directed to release the petitioner
on parole for a period of 28 days after taking requisite
personal and surety bonds. However, before parting, it is
clarified that in case the convict violates or breaches any
condition of parole order, by threatening the family of the
complainant or otherwise creating law and order problem, then
it shall be a factor to cancel the parole so granted by this Court
and shall also be a relevant factor for considering the future
request of the convict made in this regard.
With these observations, the present petition is disposed of
alongwith pending miscellaneous application(s), if any.
( Mohammad Rafiq )
Chief Justice
( Sandeep Sharma )
Judge
May 10, 2022
(hemlata)
