Himachal Pradesh High Court

Sh. Tilak Raj vs State Of Rajasthan And Others on 12 May, 2022

Bench: Mohammad Rafiq, Sandeep Sharma

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA




                                                      .
              ON THE 12h 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. 2453 of 2022

       SH. TILAK RAJ, S/O SH. RANGI RAM,
       R/O VPO KOTLA KHURD, TEHSIL AND
       DISTT. UNA, H.P.



                                              ...PETITIONER

       (BY  MR.   ASHWANI        KAUNDAL,




       ADVOCATE.)





       AND

    1. STATE    OF        H.P.   THROUGH





       SECRETARY      (HOME)    TO     THE
       GOVERNMENT OF H.P., SHIMLA-
       171002.
    2. DIRECTOR GENERAL OF PRISONS
       (RELEASING AUTHORITY), KASUMPTI,
       SHIMLA, H.P.
    3. SUPERINTENDENT OF POLICE UNA,
       DISTRICT UNA, H.P.
    4. SUPERINTENDENT, CENTRAL MODEL
       JAIL, KANDA, DISTRICT SHIMLA, H.P.

                                       ... RESPONDENTS




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         (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

Son of the petitioner-Rajinder Sharma has been

convicted for offence under Section 376-D of the Indian Penal

Code by Special Judge, Hamirpur, District Hamirpur, Himachal

Pradesh. He has been sentenced to undergo rigorous

imprisonment for 20 years and to pay a fine of Rs.20,000/- with

default clauses vide judgment dated 11.06.2019. By means of

the present petition, the petitioner seeks parole for 28 days for

his son.

2. As per the averments made in the petition, the

son of the petitioner had applied for parole on 28.04.2021 to

meet his parents. His application was rejected by the

respondents on 21.06.2021. His son subsequently moved

another application for parole on 05.09.2021, which was also

rejected on the basis of non-recommendation from the

concerned District Magistrate. Aggrieved against the rejection of

the applications of his son for grant of parole, the petitioner has

preferred the present petition praying that the rejection of the

applications of his son 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 Una, District Una, Himachal

Pradesh through the Superintendent of Police, District Una,

Himachal Pradesh. After conducting necessary inquiry, the

parole case of the son of the petitioner was not recommended

by the District Magistrate, Una.

4. We have heard learned counsel for the parties and

gone through the record of the case.

5. Vide judgment dated 11.06.2019, the son of the

petitioner has been convicted for the offence under Section

376-D of the Indian Penal Code and has been sentenced to

undergo rigorous imprisonment for 20 years and to pay a fine of

Rs. 20,000/- with default clauses. In the reply, the respondents

have submitted that the son of the petitioner has completed 04

years, 08 months and 24 days of his sentence and his conduct

in jail has been satisfactory.

6. We have also seen communication dated 29th

December, 2021, sent by the Superintendent of Police, Una,

District Una, H.P. to the Deputy Commissioner, Una, District

Una, H.P. in which it is mentioned that the Pradhan of Gram

Panchayat Kotla Khurd has reported that the convict is a

permanent resident of Village Kotla Khurd, Police Station,

Tehsil & District Una, Himachal Pradesh and the parents of

convict are very old, who are not in a situation to meet their son

at Model Central Jail Kanda (Shimla) due to pandemic disease.

It is further mentioned that if the convict during his parole lives

in peaceful manner in the village and does not quarrel with any

one in the area, then the local Panchayat has no objection for

his release on parole. Further, it is mentioned that Incharge

Police Station has raised objection for release of the convict on

parole as he has committed a heinous crime and he may

abscond. The sole

reason given in the report

rejecting petitioner's application for release on parole is that r for

his release will send wrong message to the society.

7. In Asfaq Vs. State of Rajasthan and others,

(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.