Himachal Pradesh High Court

Resham Chand vs State Of H.P. & Ors on 11 July, 2024

Bench: Tarlok Singh Chauhan, Sushil Kukreja

                                                                                    ( 2024:HHC:5128



         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                      CWP No. 4241 of 2024
                                                      Date of Decision: 11.07.2024




                                                                                         .

           Resham Chand                                                          ...Petitioner
                                                   Versus
           State of H.P. & ors.                                                   ...Respondents





           Coram
           Hon'ble Mr Justice Tarlok Singh Chauhan, Judge.





           Hon'ble Mr Justice Sushil Kukreja, Judge.
           Whether approved for reporting?1
           For the petitioner                 :         Mr. H.R. Bhardwaj, Advocate.

           For the Respondents                :         Mr. Anup Rattan, Advocate General

                                                        with Mr. Navlesh Verma, Ms.
                                                        Sharmila      Patial,   Additional
                                                        Advocates General with Mr. Raj
                                                        Negi, Deputy Advocate General.



           Tarlok Singh Chauhan, Judge (Oral)

The instant petition has been filed for grant of the

following substantive relief:-

"That the impugned communication dated 15.12.2023 (Annexure P-1) may kindly be quashed and set aside and

the respondents directions may kindly be directed to release/grant leave to the petitioner on parole for 42 days as to meet his old aged ailing parents forthwith."

2. The only ground for rejecting the request made by the

petitioner for grant of parole is that the District Authorities, on the

basis of the report submitted by the Incharge, Police Station, BSL

Colony, Sunder Nagar, District Mandi, H.P., have observed that the

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

( 2024:HHC:5128

victim's family have raised objection, qua release of the petitioner on

parole, as the house of the petitioner is only at a distance of 45 Kms

from the house of the victim and there is possibility that the petitioner

might commit crime again, if released on parole. Further, the crime

committed by the petitioner falls under the category of heinous crime

and there is likelihood of his being absconding if released on parole.

3. We have heard learned counsel for the parties and have

gone through the material placed on record.

4. As regards the petitioner, who is a permanent resident

of Himachal Pradesh, stringent conditions with regard to his release

to ensure that he does not jump the parole can only be imposed by

this Court.

5. As the petitioner has been convicted for heinous crime,

it only needs to be reiterated that there is no presumption that a

person who is convicted for serious or heinous crime is to be ipso

facto treated as hardened criminal. Hardened criminal would be a

person for whom it has become habit or way of life and such a

person would necessarily tend to commit crime again and again.

Obviously, if a person has committed a serious offence, for which he

is convicted, but at the same time, if it is also found that it is the only

crime he has committed, he cannot be categorized as hardened

criminal.

( 2024:HHC:5128

6. It appears that the respondents have been completely

oblivious that grant of parole whereby convict can be released from

jail for 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 too must breathe fresh air

for at least some time provided they maintain good conduct

consistently during incarceration and show a tendency to reform

themselves and become good citizens. Thus, redemption and

rehabilitation of such prisoners for the good of society must receive

due weightage while they are undergoing sentence of imprisonment.

7. 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, al beit for 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

( 2024:HHC:5128

aimed for the good of the society and, therefore, are in public

interest.

8. All these aspects as well as objectives of parole have

been elaborately set out by the Hon'ble Supreme Court in Asfaq vs.

State of Rajasthan (2017) 15 SCC 55, the relevant observations

whereof read as under:-

"11. There is a subtle distinction between parole and furlough. A parole can be defined as conditional release of prisoners i.e. an early

release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict

is released before the expiration of his term. Thus, the parole is granted for good behaviour on

the condition that parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporarily on some basic grounds. In that eventuality, it is to be treated as mere suspension

of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in

certain specified exigencies. Such paroles are normally granted in certain situations some of which may be as follows:-

(i) member of the prisoner's family has died or is seriously ill or the prisoner himself is seriously ill; or

(ii) the marriage of the prisoner himself, his son, daughter, grandson, granddaughter, brother, sister, sister's son or daughter is to be celebrated; or

(iii) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation of his land or his father's undivided land actually in possession of the prisoner; or

(iv) it is desirable to do so for any other sufficient cause;

( 2024:HHC:5128

(v) parole can be granted only after a portion of sentence is already served;

(vi) if conditions of parole are not abided by the parolee he may be returned to serve his sentence in prison, such conditions may be such as those of committing a

new offence; and

(vii) parole may also be granted on the basis of aspects related to health of convict

himself.

15. A convict, literally speaking, 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 too must breathe fresh air for at least

some time provided they maintain good conduct consistently during incarceration and show a

tendency to reform themselves and become good citizens. Thus, redemption and rehabilitation of such prisoners for good of societies must receive due weightage while they are undergoing

sentence of imprisonment.

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,

( 2024:HHC:5128

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. Having noted the aforesaid public purpose in

granting parole or furlough, ingrained in the reformation theory of sentencing, other competing public interest has also to be kept in

mind while deciding as to whether in a particular case parole or furlough is to be granted or not. This public interest also demands that those who

are habitual offenders and may have the tendency to commit the crime again after their release on parole or have the tendency to

become threat to the law and order of the society, should not be released on parole. This aspect takes care of other objectives of sentencing, namely, deterrence and prevention. This side of the coin is the experience that great number of crimes are committed by the offenders who have been put back in the street after conviction. Therefore, while deciding as to whether a particular prisoner deserves to be released on parole or not, the aforesaid aspects have also to be kept in mind. To put it tersely, the authorities are supposed to address the question as to whether the convict is such a person who has the tendency to commit such a crime or he is

( 2024:HHC:5128

showing tendency to reform himself to become a good citizen.

20. Thus, not all people in prison are appropriate for grant of furlough or parole. Obviously, society must isolate those who show patterns of preying

upon victims. Yet administrators ought to

encourage those offenders who demonstrate a commitment to reconcile with society and whose behaviour shows that aspire to live as law- abiding citizens. Thus, parole program should be

used as a tool to shape such adjustments.

21. To sum up, in introducing penal reforms, the State that runs the administration on behalf of the society and for the benefit of the society at large

cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty. It is for this reason that in introducing such reforms, the

authorities cannot be oblivious of the obligation to the society to render it immune from those who

are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty (by a Court) of having 8 perpetrated a criminal act. One of the discernible purposes of imposing the penalty of

imprisonment is to render the society immune from the criminal for a specified period. It is, therefore, understandable that while meting out

humane treatment to the convicts, care has to be taken to ensure that kindness to the convicts does not result in cruelty to the society. Naturally

enough, the authorities would be anxious to ensure that the convict who is released on furlough does not seize the opportunity to commit

another crime when he is at large for the time- being under the furlough leave granted to him by way of a measure of penal reform. 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

( 2024:HHC:5128

cannot be categorized 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 outrightly. 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 9 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 (II) v. Delhi Administration (1980) 3 SCC 488, Maneka Gandhi v. Union of India and Another (1978) 1 SCC 248, and Charles Sobraj v. Superintendent Central Jai, Tihar, New Delhi (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

( 2024:HHC:5128

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." (Underlining ours).

9 The view taken by the Hon'ble Supreme Court has

thereafter been followed by this Court in hundred of decisions.

10 In the given facts and circumstances, we are of the

considered view that the request of the petitioner for grant of parole

has wrongly been rejected by the respondents vide its order dated

15.12.2023 (Annexure P-1) and the same is accordingly quashed.

11 Consequently, the respondents are directed to release

the petitioner on parole for a period of 42 days, subject to his

furnishing personal bond to the tune of Rs. 2,00,000/- (Rupees two

lacs) with two local sureties in the like amount each to the

satisfaction of the Superintendent, Model Central Jail, Nahan,

District Sirmaur, H.P. However, the petitioner will not leave the