Jai Prakash Alias Prakash vs State Of Himachal Pradesh & Ors
2023 Latest Caselaw 18624 HP

Himachal Pradesh High Court

Jai Prakash Alias Prakash vs State Of Himachal Pradesh & Ors on 30 November, 2023

Bench: Tarlok Singh Chauhan, Satyen Vaidya

        IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
                                            CWP No. 8170/2023
                                            Decided on : 30.11.2023

    Jai Prakash alias Prakash                                                  .....Petitioner




                                                                               .

                                   Versus

    State of Himachal Pradesh & Ors.                                       ....Respondents





    Coram:
    The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
    The Hon'ble Mr. Justice Satyen Vaidya, Judge.




                                                   of
    Whether approved for reporting?1 No

    For the Petitioner:                     Mr. N. S. Chandel, Sr. Advocate
                      rt                    with Mr. Vinod Kumar Gupta,
                                            Advocate.
    For the Respondents:                    Mr. I. N. Mehta, Mr. Y.W. Chauhan

                                            Sr. Addl.A.Gs. with Ms. Sharmila
                                            Patial, Addl. A.G.
    ____________________________________________________________________
                  Justice Tarlok Singh Chauhan, Judge (oral)

The instant petition has been filed for grant of

following substantive relief:

"issue a writ of mandamus or any other writ of the

similar nature whereby the respondent No.2 be directed to grant parole/furlough under Section 3 of

Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 in view of application dated 25.7.2022 (Annexure P-2) filed by the petitioner for grant of parole/furlough in the peculiar facts and circumstances of the case in the interest of justice."

1 Whether reporters of the local papers may be allowed to see the judgment? Yes.

2 The petitioner is serving life sentence after having

been convicted under Section 302 of the Indian Penal Code and

Section 3(2)(v) of Schedule Castes and Schedule Tribes

.

(Prevention of Atrocities) Act.

3 The records reveal that the petitioner has undergone

about 4 years and 8 months of imprisonment. On 25.8.2022,

the application dated 25.7.2022 submitted by the petitioner for

of his release on parole was received in the office of the Additional

District Magistrate Sirmour, H.P. and the same was thereafter rt marked to Superintendent of Police, Sirmour for providing

recommendation report regarding temporary release on parole

of the petitioner.

4 On 27.8.2022, status report from SHO, Police

Station Shillai was received in the office of S.P. Sirmour,

wherein at Sr. No.4 of the status report, it was stated that the

local Gram Panchayats Bakras and Kyari Gundah have no

objection if the petitioner is released on parole. Statements of

the Pradhans of the concerned Gram Panchayats were also got

recorded in this regard. However, vide letter dated 20.9.2022

some objections were raised by the office of the S.P. Shimla and

the same were sent to SHO, Police Station Shillai for removal of

the same.

5 Status report dated 30.10.2022 was thereafter sent

by the SHO, wherein it was stated that the elder brother i.e.

Heera Singh and other family members of deceased Kedar

.

Singh have orally objected to the release of the petitioner on

parole, but they have refused to give their statements in this

regard.

6 S.P. Sirmour again sent the matter to SDPO and

of SHO, Shillai with the instruction to record statements of the

family members of the deceased. However, vide report dated rt 27.12.2022 received from SHO, Shillai, it was stated that

statement of Gulab Singh, i.e. brother of the deceased had been

recorded wherein he had stated that he had no objection in

case the petitioner is released on parole.

7 It was after considering all the status reports of the

SHO, Shillai that the S.P. Sirmour sent recommendation report

dated 6.2.2023 to the District Magistrate, Sirmour informing

him that the police had no objection to the petitioner being

released on parole, however on 15.2.2023, a letter dated

14.2.2023 issued by the Additional District Magistrate, Sirmour

was received in the office of S.P. Sirmour with the objections to

send clear cut report regarding the petitioner.

8 In the meanwhile, on 16.2.2023, an application was

received through e-mail from Ms. Hemlata Jindan, wife of late

Mr. Kedar Jindan, in the office of S.P. Sirmour, in which, she

prayed for non-release of the petitioner on parole as she had

apprehension of life threat from the petitioner. The facts

.

containing in e-mail were duly verified from the deceased's wife

and on the basis of status report as well application of the

deceased's wife received through e-mail, parole of the petitioner

was not recommended. Hence, the instant petition.

of 9 At this stage, it needs to be observed that an

identical case came up for consideration before this court of the

co-accused rtGopal Singh, who is also undergoing life

imprisonment, wherein again wife of the deceased Ms. Hem

Lata Jindan had sent a FAX message objecting parole of co-

accused Gopal Singh and this Court while dealing with aspect

of the matter observed as under:-

"7(i). As per the mandate of the Himachal Pradesh

Good Conduct Prisoners (Temporary Release) Act, 1968

and Rule 3 of the Rules, the District Magistrate was bound to verify the facts, to ascertain the genuineness of the grounds on which parole was requested and then

to form an opinion based on an impartial and independent application of mind after considering the entire material i.e. reports-recommendations-inputs etc made by all the designated authorities and then in taking a holistic view of the matter.

In the instant case, a perusal of the impugned order dated 26.05.2023, Annexure P-5, reveals that the District Magistrate has not recommended the case of the

petitioner for parole by primarily relying upon the isolated statement made by the wife of the deceased and by ignoring the other materials i.e. reports-records- inputs furnished by other designated authorities, which

.

were in favour of the petitioner. In these circumstances,

the action of the District Magistrate in totally "brushing aside the available relevant material(s) while forming

an opinion" as required by the applicable Statute and the Law, which vitiates the decision making process as well as the impugned orders. We order accordingly.

of 7(ii). One more aspect needs to be looked into is, that the respondents have rejected the case of the petitioner for parole on 26.05.2023, Annexure P-5, in rt view of an objection raised by the wife of the deceased, namely, Hemlata Jindan vide letters dated

16/25.02.2023 vide Annexure R-3. We are of the considered view that the objection made by the wife of the deceased cannot be made the sole basis for denying

the parole, when a reference to the letter dated 07.03.2023 reveals that the brother of the deceased, namely, Shri Gulab Singh has made a statement on

21.12.2022 before the Incharge /SHO Police Station Shillai, in District Sirmaur stating that the objector-wife

of the deceased does not reside in village Kiyari Gundal, under Gram Panchayat Bakras, Tehsil Shillai, in District

Sirmour whereas she actually resides in Shimla (District Shimla), along with children.

Thus, we are of the considered view that the objection-statement made by the wife of the deceased cannot be given "pre-dominance and over-weightage" nor can any such statement made by the wife or the relative be made the "sole determinative factor" for denying parole to a convict, alike the petitioner. Moreover,

once the District Magistrate as well as the Respondent no 2-Director General of Prison, Shimla, have brushed aside these aspects, then, is sufficient to vitiate the entire decision making process and therefore, the action of

.

the respondents in not recommending the case of the

petitioner for parole does not stand the test of judicial scrutiny, being erroneous in law.

7(iii). The case records manifest that once the designated authorities under the State Act and Rules had submitted various reports-recommendations-inputs

of i.e. the resolution passed by the Gram Panchayat Bakras (Annexure P-6) ; the Custody Certificate (Annexure P-1), the Parole Recommendation Certificate(Annexure P-4); rt the No Objection by the Local Police as in the letter dated 30.10.2022 (Annexure R-3/T) and the statement

made by the brother of the deceased that the wife of the deceased does not stays in village Kiyari Gudah, in Tehsil Shillai but she infact resides in Shimla as

in letter dated 07.03.2023 (Annexure R-3/T). Thus, once the respondents have "failed to resort to a comprehensive exercise for formation of required opinion, after taking

into account entire material i.e. reports-recommendations

-inputs, in the context of the object and rationale of

Parole as mandated by the Statute, Rules and Law in the case of Asfaq (supra) and therefore, the opinion

formation, the non-recommendation of the case of the petitioner and the impugned orders denying the parole are illegal, arbitrary and cannot be permitted to operate. Accordingly, the same are set-aside.

7(iv). We now proceed to examine the case from another angle. Provision of Section 6 of the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 stipulates that the temporary release-parole can

be denied only if the release of a convict is likely to endanger the security of the State or the maintenance of public order.

In the present case, the respondents have not

.

placed on record any cogent and convincing material justifying that the temporary release of the petitioner on parole would infringe the mandate of Section 6 of

the Act, as mentioned above. Thus, once the case of the petitioner does not fall in any of the exceptional categories, therefore, the inaction of respondents and the

of impugned order denying the parole to the petitioner does not stand the test of judicial scrutiny and is set-aside."

rt Since the co-accused Gopal Singh has also been

granted parole in absolutely identical facts and circumstances,

we see no reason why the petitioner should be deprived of such

benefit. Accordingly, the instant petition is allowed with the

following directions:-

(i) Respondents are directed to re-consider

the case and to extend the concession of parole to the petitioner, for a period

of 28 days; on his furnishing a personal bond in the sum of Rs 1,50,000/- with two sureties in the like amount, to the satisfaction of Superintendent Jail, Model Central Jail, Nahan, District Sirmour, Himachal Pradesh.

(ii) It is also made clear that the petitioner shall surrender before Superintendent of Jail, Model Central Jail, Nahan, District Sirmour

(HP), on expiry of parole period. In case, the petitioner breaches any of the conditions of parole order or creates any law and order problem, then, the respondents are free to

.

cancel the parole and take action against the petitioner in accordance with law.

(iv). In peculiar facts and circumstances, herein, respondents are at liberty to impose any other just and reasonable condition(s), in

of addition to the conditions mentioned in Para 7(viii), of this Order, supra, if deemed fit and

rt proper, to meet the ends of justice.

11 The instant petition is allowed in the aforesaid

terms. Pending application(s), if any, also stands disposed of.

(Tarlok Singh Chauhan) Judge

(Satyen Vaidya)

30.11.2023 Judge (pankaj)