Himachal Pradesh High Court
Padmi vs State Of Rajasthan And Others on 23 May, 2022
Bench: Mohammad Rafiq, Sandeep Sharma
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
.
ON THE 23RD DAY OF MAY, 2022
BEFORE
HON'BLE MR.JUSTICE MOHAMMAD RAFIQ
CHIEF JUSTICE
&
HON'BLE MR.JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION NO.1347 OF 2022
Between:-
DHARAM PAL SON OF SH.RAM SINGH,
AGED ABOUT 28 YEARS, R/O VILLAGE
PADMI, POST OFFICE BALLIAN, TEHSIL
BAIHADI, POLICE STATION
SASHIGARH, DISTRICT BARELI, U.P.
THROUGH SUPERINTENDENT OF JAIL.
...... PETITIONER (IN JAIL)
(BY MR.SUNIL KUMAR, ADVOCATE.)
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 (H.P.)
3. INSPECTOR GENERAL OF PRISONS
& CORRECTIONAL SERVICES,
HIMACHAL PRADESH, SHIMLA-
171009.
4. THE SUPERINTENDENT OF JAIL,
MODEL CENTRAL JAIL KANDA,
DISTRICT SHIMLA, (H.P.)
......RESPONDENTS
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2
( BY MR.ASHOK SHARMA, ADVOCATE
GENERAL WITH MR.VIKAS RATHORE,
ADDITIONAL ADVOCATE GENERAL)
.
This petition coming on for orders this day, Hon'ble Mr.Justice
Sandeep Sharma, passed the following:
ORDER
Being aggrieved and dissatisfied with the order dated
06.10.2021 (Annexure P-2), whereby prayer made on behalf of the
petitioner-convict (hereinafter referred to as the 'petitioner') for
grant of parole came to be rejected, petitioner has approached this
Court in the instant proceedings filed under Article 226 of the
Constitution of India, praying therein for issuance of writ of
certiorari to quash and set aside the aforesaid order dated
06.10.2021 and grant parole of 28 days.
2. For having bird's eye view, certain undisputed facts,
which may be relevant for adjudication of the case at hand, are
that FIR No.218 of 2014 dated 27.09.2014 was registered against
the petitioner alongwith other persons at Police Station Nalagarh,
District Solan for their having allegedly committed offences
punishable under Section 302, 364 and 201 read with Section 34
of the Indian Penal Code (for short 'IPC'). Vide judgment dated
23.10.2019 passed by learned Additional Sessions Judge,
Nalagarh, District Solan, in Sessions Trial No.16-NL/7 of 2015,
petitioner came to be convicted and sentenced to undergo rigorous
imprisonment for life and to pay a fine to the tune of Rs.five
thousand for his having committed offence punishable under
Section 302 read with Section 34 IPC. Besides above, petitioner
also came to be convicted and sentenced to undergo rigorous
imprisonment for five years and to pay a fine to the tune of
.
Rs.3000/- for his having committed offence punishable under
Section 364 read with Section 34 IPC.
3. Being aggrieved and dissatisfied with the aforesaid
judgment of conviction and order of sentence passed by Court
below, petitioner-convict preferred an appeal bearing Criminal
Appeal No.115 of 2020 before this Court, but the same is pending
adjudication.
4.
Petitioner has already undergone sentence of almost
eight years and five months including the remission period of five
months and seventeen days till date. On 17.11.2020, vide
Annexure P-1, petitioner applied for temporary parole to Director
General of Prisons & Correctional Services, Shimla, (hereinafter
referred to as DG (Prisons), with a view to meet his family.
However, after approximately 11 months of filing the application,
office of Additional Director General Prisons vide a communication
dated 06.10.2021 (Annexure P-2) informed the petitioner through
Superintendent Jail, Model Central Jail, Kanda, District Shimla
that his prayer for parole has been rejected on account of non-
recommendation by District Magistrate.
5. In the aforesaid background, petitioner has
approached this Court in the instant proceedings, praying therein
for issuance of direction to DG (Prisons) to grant him parole for 28
days.
6. Reply to the petition stands filed on behalf of the
.
respondents, wherein it has been stated that on 17.11.2020,
petitioner Dharam Pal had applied for temporary release on parole
to meet his family members and his request was duly processed by
the Superintendent Jail, Model Central Jail, Kanda (Shimla), H.P.
vide his letter No.9950-52, dated 20.11.2020 and thereafter the
same was forwarded to the concerned District Authorities i.e.
District Magistrate and Superintendent of Police, District Bareli,
Uttar Pradesh, for their recommendation/verification, as required
under the Himachal Pradesh Good Conduct Prisoners (Temporary
Release) Act, 1968, (hereinafter referred to as the 'Act'). It has
further been averred in the reply that District Magistrate Bareli,
Uttar Pradesh vide letter dated 08.09.2021 (Annexure R-2), after
having got conducted necessary inquiry through Superintendent of
Police, not recommended the case of the petitioner for parole. In
the aforesaid communication, it has been specifically stated that
local police has raised objection for the temporary release, as there
is apprehension that petitioner may abscond, if released on parole.
7. Having heard learned counsel appearing for the parties
and perused material available on record vis-à-vis reasoning
assigned in the impugned order Annexure P-2, we find that
primarily prayer made on behalf of the petitioner for grant of parole
has been rejected on the ground that in the event of petitioner
being enlarged on parole, he may abscond. However, we are of the
considered view that ground raised by the authorities for not
granting parole to the petitioner is totally unreasonable and
.
imaginary and as such cannot be accepted. The very purpose of
granting parole is that prisoner is allowed to maintain family and
social ties. For this purpose, he is to be released from Jail for some
time so that he is able to maintain his family and social contact.
One of the objectives behind sentence and punishment is
reformation of the convict. When we recognize reformation as one
of the objectives, it provides justification for letting of even the life
convicts for
r 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.
Hon'ble Apex Court as well as this Court in catena of cases have
repeatedly held that the request for parole made on behalf of the
prisoner is required to be considered sympathetically while
applying humanistic approach.
8. In the case at hand, petitioner is behind the bars for
more than eight years and five months and during this period he
has been not even granted parole for once. Needless to say, a
convict becomes entitled for parole after five years of his conviction
spent in jail, but, interestingly, in the case at hand, prayer made
on behalf of the petitioner for grant of parole is being sought to be
rejected on flimsy ground as has been taken note herein above. No
material worth credence has been led on record suggestive of the
fact that in the event of petitioner's being enlarged on parole, there
is likelihood of his fleeing from justice. District Magistrate while
responding to the communication sent by office of DG (Prisons) has
.
nowhere stated that past criminal record of petitioner is such that
his release may endanger the society or he may specifically cause
harm/injury, if any, to the family of the victims.
9. Since it stands duly established on record that the
petitioner is permanent resident of Village Padmi, Post Office
Ballia, Tehsil Baheri, Police Station Sheeshgarh, District Bareli,
U.P. and his family resides on the given address, prayer made on
behalf of the petitioner cannot be rejected that too on the ground
raised by the police after verification. It is none of the case of the
respondents that behaviour of the petitioner has been not found
good during his stay in the jail and as such, we see no reason to
not to grant parole to the petitioner for some time enabling him to
meet his family and solve other domestic problems, if any.
10. 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
r 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 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
r 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.
.
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
r 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 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."
11. 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."
12. 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 petitioner-
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
May 23, 2022 (Sandeep Sharma)
(aks) Judge
