Himachal Pradesh High Court
Decided On : 07.05.2025 vs State Of Himachal Pradesh & Ors on 7 May, 2025
2025:HHC:16071-DB
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
CWP No : 694 of 2025
Decided on : 07.05.2025
__________________________________________________________
Devender Kumar alias Jhengi ...Petitioner
Versus
State of Himachal Pradesh & ors. ...Respondents
Coram:
Hon'ble Mr. Justice G.S. Sandhawalia, Chief Justice
Hon'ble Mr. Justice Ranjan Sharma, Judge
1Whether approved for reporting? Yes
For the petitioner : Mr. Sunil Kumar &
Mr. Pankaj Sawant,
Advocates.
For the respondents : Ms. Priyanka Chauhan,
Deputy Advocate General.
Per Ranjan Sharma, Judge
Petitioner, Devender Kumar @ Jhengi, a
convict has come up before this Court, seeking his
temporary release-parole, with the following relief(s):-
"i). That this Hon'ble Court may kindly be
pleased to issue writ in the nature of
certiorari, thereby quash and set aside
Annexure P-2 dated 05.02.2024, in the
interest of justice and fair play.
ii). That this Hon'ble Court may kindly be
pleased to issue writ in the nature of
mandamus, thereby directing the
1 Whether reporters of Local Papers may be allowed to see the judgment?
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respondents to release the petitioner on
parole for the period of 42 days, in the facts
and circumstances of the present case."
FACTUAL MATRIX:
2. Case as set-up by Learned Counsel is
that in pursuance of registration of FIR No.47/2019,
dated 19.05.2019, registered at Police Station Anni,
District Kullu [HP] the petitioner was convicted by
Learned Additional Sessions Judge, Fast Track Special
Court (Rape/POCSO), Kinnaur Sessions Division at
Rampur Bushahr on 26.04.2022 and was sentenced to
undergo-
"i) Rigorous imprisonment for 10 years under
Section 376AB read with 511 of IPC and to
pay a fine of Rs.5,000/- [Rupees Five
Thousand Only with default sentence].
ii) Rigorous imprisonment for 02 years under
Section 3(1)(w)(i) of SC&ST Act and to pay a
fine of Rs.3,000/- [Rupees Three Thousand
Only with default sentence]."
It is averred that on 28.02.2023 [Annexure
P-1] the petitioner had applied for parole for
agricultural purpose in view of the fact that parents of
the petitioner are aged and disabled and also ailing
who are seeking treatment in IGMC Shimla and
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therefore, the petitioner requested for parole for
undertaking agricultural work and also to meet the
family but, the case of the petitioner was rejected by
respondent No.2-Director General Prisons Correctional
Services, Himachal Pradesh on 05.02.2024 [Annexure
P-2] in view of the non-recommendation of District
Authorities. It is further averred that Impugned Order
dated 05.02.2024 [Annexure P-2], disallowing the
parole request is factually erroneous and is legally
untenable as the parole being a step towards
reformation could not have been brushed aside or
rejected in casual manner. In this background the
impugned order was assailed, praying for parole.
PROCEEDINGS BEFORE THIS COURT
3. Pursuant to issuance of notice on
10.01.2025, the State Authorities were directed to file
reply/Instructions.
3(i). The matter was listed on 07.03.2025 when,
the State Authorities have furnished the Instructions
dated 06.03.2025 which indicated that the petitioner
applied for parole on 02.05.2023 for agricultural work
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but his claim for parole was rejected, in view of the
non-recommendation by District Magistrate, Kullu,
vide letter dated 10.10.2023 [Annexure P-3 with the
Instructions]. These Instructions indicate that the
victim's mother, Meena Devi had given a statement to
the police during verification opposing the grant of
parole on the ground, that the path from the of victim's
house towards her school passes through house of the
petitioner and grant of parole may pose a threat to the
said victim. The Instructions further referred to similar
objection made by grand-mother, Champa Devi. Based
on above statement(s) even local police had objected to
grant of parole to petitioner in view of the statement
made by victim's mother and grand-mother, as referred
to above.
3(ii). The matter was then listed on 10.03.2025
when, the objection taken by the State Authorities in
the Instructions dated 06.03.2025, was disputed by
Learned Counsel for the petitioner by stating that the
factual averment that passage-way of the victim's
house to victim's school crosses through the
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petitioner's house posing a threat to the victim was
factually incorrect. In view of this, this Court passed
an order on 10.03.2025 directing the State Authorities
to have a fresh re-look into the matter and to get the
issue of location and distance etc. checked from an
independent source rather than by relying upon the
statement of the mother and grand-mother of the
victim.
3(iii). Pursuant to the orders passed by this Court
on 10.03.2025, the State Authorities have re-looked
into the issue and have filed a Compliance Affidavit
dated 05.04.2025 of Director of General Prisons
Correctional Services, Himachal Pradesh. Perusal of
Paras 2 & 3 of the Compliance Affidavit indicates that
the distance between the house of the petitioner and
victim is approximately two kilometers. It is averred
that the victim is studying in GSSS Shilhi Janja and
the path/passage used by the victim towards her
school is approximately 700 meters from nearest point.
It is further averred that the path from the victim's
house to the school does not pass to the village of the
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petitioner. However, the Compliance Affidavit points
out the possibility of repetition of crime by petitioner
herein. Along with the compliance affidavit, the reports
of Tehsildar Anni and Site-Plan, showing the location
and distance of victim's house towards victim's school
and the house of the petitioner has also been placed on
record.
4. Though, the compliance Affidavit dated
05.04.2025 was filed before this Court but, by ignoring
the material available, the Respondent No.2-Director of
Prisons and Correctional Services, Himachal Pradesh
has again passed an order on 04.04.2025 [Annexure
R-3] reflecting the claim for release on parole in view of
non-recommendation by District Authorities in a
casual/cryptic manner.
5. Before examining the matter on merits, it is
necessary to have a recap of the Rejection Orders i.e.
the Impugned Order dated 05.02.2024 [Annexure P-2]
and Fresh Rejection Order dated 04.04.2025 [Annexure
R-3] denying the claim of the petitioner for parole, in
following terms:-
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IMPUGNED ORDER DATED 05.02.2024 [ANNEXURE P-2]
"No.4-98/2023-Jails-3254-921
Government of Himachal Pradesh
"Directorate of Prisons & Correctional Services"
From
The Director General
Prisons & Correctional Services,
Himachal Pradesh.
To
The Superintendent Jail,
Model Central Jail, Kanda
District Shimla, Himachal Pradesh.
Dated Shimla-171009, the 5th February, 2024
Subject:-Regarding parole case of convict Devinder
Kumar alias Jhengi S/o Sh. Pyare Lal.
Memo,
Refer to office letter No.1871 dated 10/10/2023
received from District Magistrate, Kullu, District Kullu, H.P.
The parole case of convict Devinder Kumar alias
Jhengi S/o Sh. Pyare Lal is hereby rejected in view of the
non-recommendation of the District Authorities. The
convict be informed accordingly.
Sd/-
For Director General
Prisons & Correctional Services,
Himachal Pradesh."
FRESH ORDER DATED 04.04.2025 [ANNEXURE R-3]
"No.4-98/2023-Jails-3254-2175
Government of Himachal Pradesh
"Directorate of Prisons & Correctional Services"
From
The Director General
Prisons & Correctional Services,
Himachal Pradesh.
To
The Superintendent Jail,
Model Central Jail, Kanda (Shimla).
Dated Shimla-171009, the 4th April, 2025
Subject:-Regarding parole case of convict Devinder
Kumar alias Jhengi S/o Sh. Pyare Lal.
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Memo,
In continuation to this office letter No.4-98/2023-
Jails-3254-921 dated 05/02/2024, on the subject cited
above.
In compliance of orders dated 10/03/2025 passed
by the Hon'ble High Court of Himachal Pradesh in CWP
No.694/2025 titled as Devender Kumar @ Jhengi Vs State
of H.P. & Others, the District Magistrate, Kullu (HP) was
again requested to provide the specific recommendation/
independent opinion in accordance with the aforesaid orders
of the Hon'ble Court in the matter.
The District Magistrate, Kullu has not
recommended the parole case of the convict vide his
letter report 03/04/2025, based on the report of the
Superintendent of Police, Kullu (HP), who has reported
that the distance between the houses of
accused/convict and the victim is approximately two
kilometers and the victim is studying in GSSS Shilhi Janja
and the path used by the victim to her school is
approximately 700/800 meters distant from the village of
the accused/convict and the path does not pass through
the village of accused/convict as per the report of the
Sub Divisional Police, Officer, Anni, District Kullu (HP).
Further, stated that the repetition of the crime cannot be
negated in the matter and the convict may seek retribution
against the victim/complainants.
Hence, keeping in view of the no-recommendations
of the District Authorities, the parole case of convict
Devinder Kumar alias Jhengi S/o Sh. Pyare Lal is hereby
rejected. The convict be informed accordingly.
Sd/-
For Director General
Prisons & Correctional Services,
Himachal Pradesh."
6. Heard, Mr. Sunil Kumar, Mr. Pankaj Sawant
Advocates, for the petitioner as well as
Ms. Priyanka Chauhan, Learned State Counsel for the
respondents and have gone through the material on
record.
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LEGAL POSITION:
7. Before adverting to the claim-controversy
in instant case, it would be necessary to have
a recap of the mandate of the Hon'ble Supreme
Court from time to time.
7(i). The Hon'ble Supreme Court in Poonam
Lata versus M. L. Wadhawan, (1987) 3 SCC 347,
has outlined the intent, object and scope of parole
to a convict, mandating that release on parole is
a wing of the reformative process so as to provide
opportunity to the Prisoner to transform himself
into a useful citizen. Parole is a partial liberty
granted conditionally to a convict so as to enable
him to move towards reformation in the following
words:
8. There is no denying of the fact that
preventive detention is not punishment
and the concept of serving out a
sentence would not legitimately be within
the purview of preventive detention.
The grant of parole is essentially an
executive function and instances of
release of detenus on parole were literally
unknown until this Court and some
of the High Courts in India in recent
years made orders of release on
parole on humanitarian considerations.
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Historically 'parole' is a concept known
to military law and denotes release
of a Prisoner of war on promise to
return. Parole has become an integral
part of the English and American systems
of criminal justice interwined with
the evolution of changing attitudes of
the society towards crime and criminals.
As a consequence of the introduction
of parole into the penal system, all
fixed terms sentences of imprisonment
of above 18 months are subject to
release on license i.e. parole after a
third of a period of sentence has been
served. In those countries, parole is
taken as an act of grace and not as a
matter of right and the convict Prisoner
may be released on condition that
he abides by the promise. It is a
provisional release from confinement
but is deemed to be a part of the
imprisonment. Release on parole is
a wing of the reformative process and
is expected to provide opportunity
to the Prisoner to transform himself
into a useful citizen. Parole is thus
a grant of partial liberty or lessening
of restrictions to a convict Prisoner,
but release on parole does not change
the status of the Prisoner. Rules are
framed providing supervision by parole
authorities of the convicts released
on parole and in case of failure to
reform the promise the convict released
on parole is directed to surrender
to custody. It follows from these
authorities that parole is the release
of a very long term Prisoner from
a penal or correctional institution
after he has served a part of his
sentence under the continuous custody
of the State and under conditions
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that permit his incarceration in the
event of misbehavior.
7(ii). While dealing with the object of parole,
it has been held by the Hon'ble Supreme Court
in State of Maharashtra and another versus
Suresh Pandurang Darvakar, (2006) 4 SCC 776
that parole is to be granted on sufficient cause
being shown, so as to enable the Prisoner to
have family association, family and social ties and
to avoid ill-effect of continuous Prisons life.
5. According to the learned counsel for
the appellants, the High Court has
not kept in view Rules 4(4) and 6
of the Prisons (Bombay Furlough
and Parole) Rules, 1959 in short "the
Rules"). The said Rules have been framed
in exercise of powers conferred by
clauses (5) and (28) of Section 59 of
the Prisons Act, 1894 (in short "the
Act") in its application to the State
of Maharashtra as it stood then. The
expression "furlough system" is defined
in clause (5-A) of Section 3 of the
Act, while the expression "parole
system" is defined in clause (5-B) of the
said provision. The underlying object
of the Rules relating to "parole" and
"furlough" have been mentioned in
the report submitted by All-India Jail
Manual Committee and the objects
mentioned in Model Prisons Manual.
The "furlough" and "parole" have two
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different purposes. It is not necessary
to state the reasons while releasing
the Prisoner on furlough, but in
case of parole reasons are to be
indicated in terms of Rule 19. But
release on furlough cannot be said
to be an absolute right of the Prisoner
as culled out from Rule 17. It is
subject to the conditions mentioned
in Rules 4(4) and 6. Furlough is allowed
periodically under Rule 3 irrespective
of any particular reason merely with
a view to enable the Prisoner to
have family association, family and
social ties and to avoid ill-effect
of continuous Prisons life. Period of
furlough is treated as a period spent
in Prisons. But Rule 20 shows that
period spent on parole is not to
be counted as remission of sentence.
Since the furlough is granted for
no particular reason, it can be
denied in the interest of society;
whereas parole is to be granted only
on sufficient cause being shown.
9. Unfortunately, the High Court does
not appear to have addressed itself
to these relevant aspects. It took note
of the fact that nobody was willing
to stand surety for release of the
respondent. The High Court directed
that he can be released on furnishing
surety of amount lying in deposit
with the jail authorities. That is not
the only condition for release on
furlough. There is another requirement.
Even if it is held for the sake of
argument that furnishing of surety of
any amount lying in deposit with
the jail authorities can be construed
to be in compliance with the requirements
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of Rules 6. Rule 4 (4) mandates
that the Prisoner who seeks to
be released cannot be released if
not recommended by the concerned
authority on the ground of public
peace and tranquility. The High Court
has not recorded any finding that
the report of the District Magistrate
and/or Superintendent of Police had
not objected to the release on furlough
on the ground of public peace and
tranquility.
10. Looked at from any angle, the High
Court's order is indefensible. The
same is set aside. It is, however, open
to the respondent to apply for release
on fulfillment of the requisite conditions
as prescribed in the Rules. Needless
to say that the same shall be considered
in its own perspective in accordance
with law. The appeal is allowed
7(iii). The Hon'ble Apex Court in Asfaq
versus State of Rajasthan and others, (2017)
15 Supreme Court Cases 55, enunciating
that the object of granting parole to a
convict is towards reformation of a convict.
It has been held that the convicts have a
right to breathe fresh air albeit for short
periods. The main purpose of parole is to provide
humanistic approach towards those lodged in jails
so that such convicts can prepare not only to
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solve their personal and family problems but
also to maintain their links with society and
such gestures by the State go a long way for
redemption and rehabilitation of such Prisoners,
which are good for the society and are in
public interest, in the following terms, which
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 behavior
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
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the Prisoner himself is seriously
ill; or
(ii) the marriage of the Prisoner himself,
his son, daughter, grandson, grand-
daughter, 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;
(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 Prisons,
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
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
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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
recognize 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
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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 Prisons 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
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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 showing tendency to reform
himself to become a good citizen.
20. Thus, not all people in Prisons 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 behavior
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
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tendencies and have proved their
susceptibility to indulge in criminal
activities by being found guilty (by
a Court) of having 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 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
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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 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
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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 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)
7(iv). Underscoring the object of temporary
release, be it parole or furlough, the Hon'ble
Supreme Court after relying upon the judgement
law in case of Asfaq (supra), has mandated in
State of Gujrat versus Narayan, (2021) 20 SCC
304, that while dealing with the claim for
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parole/furlough a balance has to be maintained
between two competing interests in reforming the
convict vis-a vis the public purpose and interests
of society on the other:
20. The principles may be formulated in
broad, general terms bearing in mind
the caveat that the governing rules
for parole and furlough have to be
applied in each context. The principles
are thus:
(i) Furlough and parole envisage a short-
term temporary release from custody;
(ii) While parole is granted for the
Prisoner to meet a specific exigency,
furlough may be granted after a stipulated
number of years have been served without
any reason;
(iii) The grant of furlough is to break
the monotony of imprisonment and to
enable the convict to maintain continuity
with family life and integration with
society;
(iv) Although furlough can be claimed
without a reason, the Prisoner does not
have an absolute legal right to claim
furlough;
(v) The grant of furlough must be balanced
against the public interest and can
be refused to certain categories of Prisoners.
21. The furlough application of the respondent
was rejected by the DGP by an order
dated 8 May 2021. The DGP relied on
the concurrent opinion of the ACP, DCP
and Jail Superintendent to deny the
- 23 - 2025:HHC:16071-DB
grant of furlough, based on the following
circumstances: (i) the gravity of the
offences that the respondent has been
convicted of, including, Sections 376
(2)(c), 377, 354, 504, 506(2), 508 of the
IPC; (ii) the criminal misconduct of the
respondent, during the trial, including
attempts to bribe public officials; threatening,
assaulting and murdering of 21 witnesses
by followers of the respondent; threatening
police officials and inspectors of the Income
Tax Department; (iii) mass following of
the respondent willing to commit offences
at the instance of the respondent; and (iv)
illegal activities while in custody, such as
keeping a mobile phone and attempting
to establish contact with outsiders.
23. The DGP has invoked Rules 4(4), 4(6)
and 4(10) of the Rules to dismiss the
furlough leave application. Rule 4(4) of
the Rules provides that Prisoners whose
release is not recommended by the
Commissioner of Police on grounds of
public peace and tranquility may not
be considered eligible for furlough.
Rule 4(6) provides for rejection of
furlough leave where the conduct of
the Prisoner is not satisfactory and
Rule 4(10) provides that Prisoners who
have escaped, or attempted to escape
from lawful custody or have defaulted
in surrendering, may not be eligible
for furlough.
25. Turning now to Rule 4(6) of the Rules,
the Jail Superintendent has given a
negative opinion based on the fact that
the respondent kept a mobile phone
inside the jail illegally and attempted
to make contacts with the outside
world. Rule 4(4) of the Rules provides
- 24 - 2025:HHC:16071-DB
for denial of furlough on grounds
of disturbance to public peace and
tranquility. The order dated 8 May 2021
has adduced a number of circumstances
which cumulatively indicate that the
release of the respondent on furlough
may lead to a violation of public peace.
The order refers specifically to the threat
he and his followers pose to the
complainant and other persons who
deposed at the trial. An attempt has
been made to threaten and suborn
the investigating team and the witnesses.
The respondent and his father have a
mass following of persons who owe
loyalty to them and there is a reasonable
apprehension of a disruption of public
peace and tranquility. During the trial,
attempts have been made to bribe public
officials. The conduct after the trial, in
jail, has not been shown to be above
reproach. The respondent was released
earlier this year to accommodate a
genuine need to attend to his mother's
health at the relevant time. Based on
this, we are unable to agree with
the line of reasoning of the High
Court.
26. It has been urged that the objections
mentioned in the order dated 8 May
2021 were raised by the authorities to
the grant of furlough in December 2020
in spite of which the High Court allowed
the plea for furlough. We do not find
merit in this submission. The previous
order of the High Court did not deal
with these submissions. The order only
referred to the fact that the respondent's
mother was suffering on account of a
cardiac arrest and granted furlough on
this basis. The Solicitor General in fact
- 25 - 2025:HHC:16071-DB
stated that the earlier proceedings were
not contested before the High Court
since the ground for furlough then
was the ill-health of the mother of
the respondent. The opinion of the
Sanctioning Authority under the Rules
does not suffer from perversity nor
does it consider material extraneous
to the Rules governing the grant of
furlough.
7(v). While dealing with claim for furlough
[which in Respondent State is placed akin to
parole, both being temporary release under the
State Act, as detailed hereinbelow] in case of
a life convict, the blanket denial of furlough
[or parole, as the case may be] was disapproved.
Parole/furlough were lawful consequences of good
conduct. Denial of parole/furlough tends to take
away an incentive or motivation for good conduct.
The requirement of maintaining good conduct or
reformative approach or incentive for good conduct
cannot be permitted to whittle down. In case, a
convict maintains good conduct, parole/furlough
cannot be denied as a matter of course, in Atbir
versus State (NCT Delhi), (2022) 13 SCC 96, in
- 26 - 2025:HHC:16071-DB
the following terms :-
28. On a close look at the decision in
the case of Chandra Kant Jha (supra),
it appears that the observations of
this Court in the case of Asfaq (supra)
to the effect that 'Furlough is granted
as a good conduct remission' were taken
by the High Court as decisive of the
matter and leading to the conclusion that
furlough is available only if remission
is available. With respect, we are unable
to agree with this line of reasoning
of the High Court. Those observations
of this Court in paragraph 14 on the
decision in Asfaq (supra) cannot be read
in isolation and cannot be read to mean
that getting remission is a pre-requisite
for obtaining furlough. The whole of
the scheme of granting furlough is
based on the approach of reformation
and as incentive for maintaining good
conduct.
30. Viewed from any angle, we are satisfied
that the logic and reasoning of the High
Court in the case of Chandra Kant
Jha (supra), which has been followed
in the order impugned, cannot be
approved.
31. In other words, even if the appellant is
to remain in Prisons for the whole of
remainder of his life, the expectations
from him of good conduct in jail would
always remain; and the lawful consequences
of good conduct, including that of
furlough, cannot be denied, particularly
when the same has not been prohibited
in the order dated 15.11.2012. We need
not elaborate to say that depriving of
even the concession of furlough and
thereby taking away an incentive /
- 27 - 2025:HHC:16071-DB
motivation for good conduct would not
only be counter-productive but would
be an antithesis to the reformative
approach otherwise running through
the scheme of Rules of 2018.
33. Thus, looking to the concept of furlough
and the reasons for extending this
concession to a Prisoner lead us to hold
that even if a Prisoner like the appellant
is not to get any remission in his
sentence and has to serve the sentence
of imprisonment throughout his natural
life, neither the requirements of his
maintaining good conduct are whittled
down nor the reformative approach
and incentive for good conduct cease
to exist in his relation. Thus, if he
maintains good conduct, furlough cannot
be denied as a matter of course.
34. We would hasten to observe that whether
furlough is to be granted in a given
case or not is a matter entirely different.
Taking the case of the appellant, he
is a person convicted of multiple murders.
Therefore, the requirement of Rule 1225
of the Rules of 2018 may come into
operation. However, it cannot be said
that his case would never be considered
for furlough. Whether he is to be given
furlough on the parameters delineated
therein or not is a matter to be examined
by the authorities in accordance with
law.
35. In view of the above, while disapproving
blanket denial of furlough to the
appellant in the orders impugned, we
would leave the case of the appellant
for grant of furlough open for examination
by the authorities concerned in accordance
- 28 - 2025:HHC:16071-DB
with law.
36. For what has been observed, discussed
and held hereinabove, this appeal succeeds
and is allowed; the impugned order dated
02.08.2021 as passed by the High Court
of Delhi and the order dated 21.10.2019
as passed by the Director General of
Prisons, Prisons Headquarters, Tihar,
Janakpuri, New Delhi are set aside;
and the case of the appellant for grant
of furlough is restored for reconsideration
of the said Director General of Prisons....''
STATUTORY PROVISIONS IN RESPONDENT
STATE:
8. So far as Respondent State is concerned,
the State Legislature enacted "The Himachal Pradesh
Good Conduct Prisoners (Temporary Release) Act,
1968", providing for temporary release of Prisoners
subject to certain conditions. Section 3, 6, 8 and
Section 9 of the Act, reads as under:-
"3. Temporary release of Prisoners on certain
grounds.-
(1) The Government may, in consultation with
the District Magistrate and subject to
such conditions and in such manner
as may be prescribed, release temporarily
for a period specified in sub-section (2)
any Prisoner if the Government is satisfied
that,-
(a) a member of the Prisoner's
family has died or is seriously
ill ; or
- 29 - 2025:HHC:16071-DB
(b) the marriage of the Prisoner's
son or daughter is to be celebrated;
or
(b) the temporary release of the
Prisoner is necessary for ploughing,
sowing or harvesting or carrying
on any other agricultural operation
on his land and no friend of
the Prisoner or a member of
the Prisoner's family is prepared
to help him in this behalf in
his absence ; or
(d) it is desirable so to do for any
other sufficient cause.
(2). The period for which a Prisoner may
be released shall be determined by
the Government so as not to exceed,-
(a) Where the Prisoner is to be
released on the ground specified
in clause (a) of sub-section (1),
two weeks;
(b) where the Prisoner is to be released
on the ground specified in clause
(b) or clause (d) of sub-section
(1), four weeks ; and
(c) where the Prisoner is to be
released on the ground specified
in clause (c) of sub-section (1), six
weeks.
(3). The period of release under this section
shall not count towards the total period
of the sentence of a Prisoner.
(4). The Government may, by notification,
authorize any officer to exercise its
power under this section in respect of
all or any of the grounds specified
therein."
6. Prisoners not entitled to be released
in certain cases-
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Notwithstanding anything contained
in sections 3 and 4, no Prisoner shall
be entitled to be released under this
Act, if, on the report of the District
Magistrate, the Government or an
officer authorized by it in this behalf
is satisfied that his release is likely
to endanger the security of the
State or the maintenance of public
order."
8. Liability of Prisoner to surrender
on expiry of release period and
consequences of overstaying.-
(1) On the expiry of the period for
which a Prisoner is released under
this Act, he shall surrender himself
to the Superintendent of the jail from
which he was released.
(2) If a Prisoner does not surrender himself
as required by sub-section (1) within
a period of ten days from the date
on which he should have so
surrendered, he may be arrested
by any police officer without a warrant
and shall be remanded to undergo
the unexpired portion of his
sentence.
(3) If a Prisoner surrenders himself to
the Superintendent of the jail from
which he was released within a period
of ten days of the date on which
he should have so surrendered, but
fails to satisfy the Superintendent of
the jail that he was prevented by
any sufficient cause from surrendering
himself immediately on the expiry
of the period for which he was
released, all or any of the following
penalties shall, after affording the
- 31 - 2025:HHC:16071-DB
Prisoner a reasonable opportunity of
being heard, be awarded to him
by the Superintendent of the jail,
namely,-
(a) a maximum cut of five days' remission
for each day of overstay;
(b) stoppage of canteen concession for a
maximum period of one month;
(c) withholding concession of either
interviews or letters or both for a maximum
period of three months;
(d) the period of temporary release on
furlough of the Prisoner under section
4 shall not be counted towards his
sentence;
(e) warning; and
(f) reduction from the status and grade
of "Convict Watchman" or "Convict
Overseer".
9. Penalty for failure to surrender.-
Any Prisoner who is liable to be arrested
under sub-section (2) of section 8, shall
be punishable with imprisonment of
either description which may extend
to two years or with fine or with
both.
Explanation.- The punishment in this
section is in addition to the
punishment awarded to the
Prisoner for the offence for which
he was convicted.
8(i). In exercise of powers conferred by Section
10 of the Act, the State Authorities has framed
"The Himachal Pradesh Good Conduct Prisoners
(Temporary Release) Rules, 1969" (for short 'Rules')
- 32 - 2025:HHC:16071-DB
and Rule 3 reads as under:-
"3. Procedure for temporary release:-
(1) A Prisoner desirous of seeking temporary
release under section 3 or section 4 of
the Act shall make an application
in Form 'A-1', Form 'A-2', as the case
may be, to the Superintendent of
Jail. Such an application may also
be made by an adult member of the
Prisoners' family.
(2). The Superintendent of Jail shall forward
the application of a Prisoner within
24 hours of its receipt along with his
report to the District Magistrate of
the district to which the convict
belongs. The District Magistrate before
making any recommendations shall,
with the consultation of the
Superintendent of Police, verify the
facts and grounds on which temporary
release has been requested and shall
also give their opinion whether the
temporary release on parole/furlough
is opposed on ground of Prisoner's
presence being dangerous to the
security of State or prejudicial to
the maintenance of Public Order.
The District Magistrate shall complete
the process of consultation with the
Superintendent of Police and forward
his recommendations within one week
to the Inspector General of Prisonss
(Releasing Authority) together with
report of Superintendent Jail, who
shall decide the parole/furlough case
ordinarily within a period of three
days from the date of receipt of
the recommendations of the District
Magistrate.
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In the event of the serious illness
of close relation i.e. father, mother,
brother, sister, spouse or child of
the Prisoner, the application should
be processed more expeditiously.
However in the event of death of the
close relation i.e. father, mother, brother,
sister, spouse or child of the Prisoner
the Superintendent of the Jail shall
also be the competent authority to
release a Prisoner on parole for a
period not exceeding fifteen days.
The Superintendent of Jail should
release a Prisoner on parole immediately
on receipt of a death certificate, provided
he satisfies himself independently within
reasonable time about the genuineness
of the certificate. For satisfying himself
he will approach the concerned Police
Station by wireless and verify about
the truth of the death and the exact
relation of the Prisoner with the deceased
in order to ascertain the nearness
of the relationship.
The Superintendent of Jail shall also
take into consideration the Prisoner's
past criminal history and behaviour
in the Prisons since admission as
recorded in his case file and the
likelihood of his not abusing the
concession of parole, if granted.
The Superintendent of Jail shall without
fail submit the case file of the Prisoner
to whom parole is thus granted,
to the Inspector General of Prisonss
enabling him to ensure that the
Superintendent has used proper
discretion in effecting the release.
(3). The District Magistrate, while
- 34 - 2025:HHC:16071-DB
recommending the parole/ furlough
cases of Prisoners will specify whether
the Prisoner shall be required to furnish
the security bond or personal bond
or both. He shall also indicate the
amount of such bond(s) with due
regard to the circumstances of cases.
Such amount shall not in any event
be excessive and shall not be
mechanically fixed. While recommending
release of the Prisoner on his
furnishing a personal bond, his family
ties and relationships, his reputation,
character and monetary conditions
and his roots in the community shall
be taken into consideration. If after
making such enquiry as it may deemed
fit, the Releasing Authority is satisfied
that the Prisoner is entitled to be
released under the Act, the Releasing
Authority may issue to the
Superintendent of Jail a duly signed
and sealed warrant in Form `B' ordering
the temporary release of the Prisoner,
specifying therein, (1) the period of
release of the Prisoner, (2) the place
or places which the Prisoner is allowed
to visit during the period of such
temporary release and the amount, as
may be specified by the District
Magistrate for which the security bond
or personal bond shall be furnished
by the Prisoner in Form `C' or `D'
respectively.
In case of second and subsequent
release on parole/furlough the
Releasing Authority shall be competent
to order release of the Prisoner on
the recommendation of Superintendent
of Jail concerned provided that the
convict/ Prisoner maintained good
behavior during the previous release
- 35 - 2025:HHC:16071-DB
(s) and nothing adverse was reported
against him.
(4). On receipt of the release warrant the
Superintendent of Jail shall inform the
Prisoner concerned and such member
of the Prisoner's family as the Prisoner
may specify in that behalf for making
arrangements for execution of the
security and surety bonds in Forms
C and D, respectively for securing
the release of the Prisoner. A copy
of the release warrant shall also
be sent by the Superintendent of
Jail to the District Magistrate.
(5). On receipt of the information from
the District Magistrate that the
necessary bonds have been furnished,
the Superintendent of Jail shall release
the Prisoner for such period as is
specified in the release warrant.
(6). The Superintendent of Jail shall also
immediately forward to the officer
in charge of the Police Station
within whose jurisdiction the place or
places to be visited by the Prisoner
is or are situated, a copy of the
warrant and the release certificate
in Form E. The officer in charge of
the Police Station shall keep a watch
on the conduct and activities of the
Prisoner and shall submit a report
relating thereto to the Superintendent
of Jail who shall forward the same
to the Inspector General.
(7). The date of release as well as the
date on which the Prisoner surrenders
himself under sub-section (1) of section
8 of the Act shall be reported by
the Superintendent of Jail to the
Inspector General who will inform the
- 36 - 2025:HHC:16071-DB
Government accordingly.
8(ii). A perusal of Section 3 of the Himachal
Pradesh Good Conduct Prisoners (Temporary
Release) Act, 1968 and Rule 3 stipulate that
a convict (Prisoner) can seek temporary release
for meeting his family members-relations and
/or for carrying out any other agricultural
operation, or on any other sufficient cause, besides
other grounds, as mentioned therein. Rule 3
prescribes the procedure and the time line
within which an application for parole is to
be processed, examined and decided by the
competent authority. Rule mandates that in
certain eventualities, an application needs to
be processed expeditiously. Sub Rule (2) of
Rule 3 provides after receipt of report from
Superintendent of Police concerned, the District
Magistrate is bound to undertake consultation
with the Superintendent of Police and verify
the facts and grounds on which temporary
release has been requested. Thereafter, District
- 37 - 2025:HHC:16071-DB
Magistrate is bound to give his opinion as to
whether the temporary release on parole/furlough
is opposed on ground of Prisoner's presence being
dangerous to the security of State or prejudicial
to the maintenance of Public Order and after
completing the process of consultation with the
Superintendent of Police, the District Magistrate
shall forward his recommendations within one
week to Inspector General of Prisons (Releasing
Authority), who shall then decide the parole/
furlough case ordinarily within a period of
three days from the date of receipt of the
recommendations of the District Magistrate. In
case of second and subsequent release on parole
the Releasing Authority shall be competent to
order release a Prisoner on parole on the
recommendation of the Superintendent of Jail
provided that the Prisoner/convict maintained good
behavior during previous release and nothing
adverse was reported against him. Section 6 of the
Act bars the release of the Prisoners in specified
- 38 - 2025:HHC:16071-DB
eventualities, in case the release is likely to endanger
the security of the State or maintenance of public
order. Thus, the Act and the Rules provide a
procedure containing checks and balances while
dealing with the claim of a convict for
parole/furlough.
ANALYSIS:
9. Taking into account the entirety of
the facts and circumstances, the Instructions dated
06.03.2025 and the Compliance Affidavit dated
05.04.2025 filed by the State Authorities, this Court is
of the considered view that the rejection orders dated
05.02.2024 [Annexure P-2] and the Fresh Rejection
Orders dated 04.04.2025 [Annexure R-3], denying the
parole to the petitioner deserves to be set-aside and
the prayer of the petitioner for grant of parole is
accepted for the following reasons:
9(i). Admittedly, the petitioner is a convict in
terms of sentence imposed by Learned Additional
Sessions Judge, Fast Track Special Court
(Rape/POCSO), Kinnaur Sessions Division at Rampur
- 39 - 2025:HHC:16071-DB
Bushahr on 26.04.2022 for rigorous imprisonment for
a period of ten years for commission of offence under
Section 376 AB read with Section 511 of Indian Penal
Code and two years imprisonment with fine for
commission of offence under Section 3(1)(w)(i) of
SC&ST Act read with Section 511 of the Indian Penal
Code, with a default clause in case of non-deposit of
fine. Perusal of Custody Certificate [Annexure-A]
annexed with Instructions dated 06.03.2025 indicate
that petitioner has undergone six years six months
and eleven days of sentence as on 28.02.2025 and the
petitioner had applied for parole on 02.08.2023
[Annexure P-1] for agricultural purpose and also for
meeting his old ailing and disabled parents who were
unable to perform agriculture work and therefore, the
parole was prayed for.
9(ii). The rejection orders dated 05.02.2024
[Annexure P-2] and 04.04.2025 [AnnexureR-3] were
passed by the State Authorities, on the ground, that
the Superintendent of Police and District Magistrate
concerned did not recommend the case of the
- 40 - 2025:HHC:16071-DB
petitioner for grant of parole and this plea is
sustainable for the reason, that firstly, the rejection
order certainly amounts to defeating the intent of the
enactment as applicable in the Respondent State ; and
secondly, the rejection order tends to render the
object and mandate of law on parole as redundant and
otiose, which cannot be permitted in any eventuality ;
and thirdly, the rejection order denying parole has
been passed in a casual and cryptic manner ; and
fourthly, the District Magistrate has not resorted
to any consultation with the Superintendent of
Police for verifying the facts and grounds on
which temporary release is requested as mandated
by Sub Rule 2 of Rule 3 ; and fifthly, even after
receipt of report from concerned Superintendent
of Police, the District Magistrate has not given
any opinion as whether the temporary release
was being opposed on the ground that the release
was dangerous to security of State or prejudicial
to maintenance of public order. After forming
his opinion, the District Magistrate was bound to
- 41 - 2025:HHC:16071-DB
forward his recommendations to the Competent-
Releasing Authority. In instant case, the District
Magistrate has neither given his opinion nor
applied his mind to the twin requirements as
to whether the grant of parole would be dangerous
to security of State or prejudicial to maintenance
of public order or not in the light of Section
6 and Rule 3 and thus non-adherence to the
above twin pre-requirements is uncalled for and
deprecated ; and lastly, the action of Respondent
No 2-Competent Authority in rejecting the parole
request of petitioner without independently applying
its mind to fact-situation of instant case and
the twin preconditions which disentitle a convict
for parole under section 6 and rule 3, by ignoring
the underlying intent and object of granting parole
in terms of the Statute and the mandate of law,
as referred to above by not taking a holistic view
of the entire matter, so as to give an opportunity
to the petitioner-convict to move a step towards
reformation, for the reason that a convict has
- 42 - 2025:HHC:16071-DB
life and a heart and a right to breathe fresh air.
Even the petitioner-convict has a fundamental
right to live with dignity. Every conviction cannot
be the sole basis for complete severance of a
convict from maintaining family and social ties
which shall be an effort and an attempt towards
transformation of a convict into a useful citizen.
In the instant case, once the petitioner
requested for parole for agricultural purposes and also
to meet his parents, who were aged, ailing and
disabled amounts to defeating the underlying intent
and object of parole under the Statute and also
tends to negates the mandate of law declared by
the Hon'ble Supreme Court, as referred to above.
Thus, action of State Authorities, which deprives
or takes away the right of the petitioner for
parole, so as to meet his family members
for maintaining family and social ties is an attempt
to scuttle the efforts towards reformation of the
petitioner. In these circumstances, rejection order(s),
in facts of instant case are quashed and set-
- 43 - 2025:HHC:16071-DB
aside.
9(iii). The rejection orders dated 05.02.2024
[Annexure P-2] and Fresh Rejection Orders dated
04.04.2025 [Annexure R-3], denying the parole to the
petitioner does not stand the test of judicial scrutiny
for the reasons:-
In the teeth of the Himachal Pradesh
Good Conduct Prisoners (Temporary Release) Act
1968 and Section 6 thereof, a convict is disentitled
for temporary release, in case, the release is likely
to endanger the security of State or maintenance
of public order. In the instant case, the State
Authorities have neither spelt out any adversial
eventualities under Section 6 of the Act that the
temporary release of petitioner on parole is likely
to endanger the security of State or maintenance
of public order nor placed on record any cogent
and convincing material to assert the disentitlement
of petitioner for parole under Section 6 of the
Act. A mere bald averment in the report(s) cannot
be made the basis for disentitling the petitioner-
- 44 - 2025:HHC:16071-DB
convict of the benefit of parole. Thus, in absence
of any such adversial eventuality and any cogent
supportive material disentitling the petitioner from
parole under Section 6 and Rule 3, the Rejection
Orders dated 05.02.2024 [Annexure P-2] and
Fresh Rejection Orders dated 04.04.2025
[Annexure R-3] denying parole does not stand the test
of judicial scrutiny, in fact-situation of instant case.
9(iv). Once the conduct and behavior of the
petitioner while in custody and even during earlier
parole was good and nothing adverse was reported
against petitioner therefore, the correctional therapy
needs to be given a face-lift. Depriving a convict of the
benefit of parole when, his conduct and behavior was
good and nothing adverse was reported against the
petitioner so as to enable him to move towards
reformation and to re-establish his social ties and
family ties for attaining the object of parole needs
to be accepted, in facts of this case.
9(v). Material on record reveals that the claim of
the petitioner for parole was rejected by the State
- 45 - 2025:HHC:16071-DB
Authorities on 05.04.2024 [Annexure P-2]. The
available records reveal that the aforesaid rejection
was based on the statement given by Meena Devi i.e.
the mother of the victim to the police authorities
during verification on 19.08.2023. It is borne out that
Champa Devi i.e. grand-mother of the victim had also
given a similar statement on 19.08.2023 objecting to
the grant of parole to the petitioner on the ground that
the passage-path from the house of victim towards her
school crosses through the house of petitioner
Devender Kumar @ Jhengi and there is possibility that
he may resort to similar incident with the victim.
Any objection raised by either the relatives
of victim/victim's or other stakeholders [concerned
Superintendent of Police or the District Magistrate]
cannot be the sole determinative basis for refusing
parole and any such report or objection cannot be
given "pre-dominance and "over weightage" by totally
brushing aside the relevant considerations within the
ambit of Section 6 of the Act when, nothing adverse
regarding the conduct and behavior during custody
- 46 - 2025:HHC:16071-DB
was borne out from the records and once the State
authorities have neither produced nor spelt out any
cogent and convincing material that release of
petitioner was likely to be prejudicial to the security of
State or the maintenance of public order {under
Section 6 of the Act. In these circumstances,
the decision-making process does not conform
to the Statute and the Statutory rules, is perverse
and is also contrary to established principles for
granting parole/furlough as mandated by the
Hon'ble Supreme Court in the cases of Poonam
Lata, Suresh Pandurang Darvakar, Asfaq, Narayan
and Atbir (supra) and also the mandate of this
Court then, the rejection order(s) denying parole to
the petitioner, is interdicted by this Court in
these proceedings. Ordered accordingly.
9(vi). Material on record reveals that as per
Custody Certificate dated 28.02.2025 issued by Jail
Authorities in Model Central Jail, Kanda, District
Shimla [Annexure-A, with the Instructions] reveals that
the petitioner has undergone six years, six months
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and eleven days of sentence and the conduct of the
petitioner during his detention has been satisfactory
and he has not availed the benefit of parole even once.
Further, the Pradhan Gram Panchayat Ropa has also
certified on 07.07.2023 [Annexure B, Colly with the
Instructions] that Gram Panchayat Ropa has no
objection to the release of petitioner in view of the fact
that both the parents of petitioner are disabled and
both are aged and ailing and under treatment in IGMC
Shimla. This certificate corroborates the claim for
parole on the ground that in order to undertake
agricultural/horticultural activities the parole is
necessary. Even, Up-Pradhan of Gram Panchayat
Ropa, had issued a certificate during verification on
19.08.2023 that local Panchayat has no objection to
the release of petitioner. Even the local residents
namely, Kehar Kumar and Ajay Kumar during
verification have stated that they have no objection for
the release of Devender Kumar @ Jhengi in view of
family circumstances. Even a perusal of Paras 2 & 3 of
the compliance affidavit dated 05.04.2025 supports
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the claim of petitioner for parole, for the reason that
the plea-objection raised by the mother and
grand-mother of victim that the passage/path of
victim's house towards the victim's school, crosses
through the house of petitioner is proven to be
factually incorrect. A perusal of Report dated
29.03.2025 of Sub-Divisional Magistrate Anni, District
Kullu, corroborates that the passage/path leading to
victim's school does not pass through the village of
convict-petitioner. Similar report has been made by
Tehsildar Anni, District Kullu. Even, a Site-Plan has
been placed on record, with the compliance affidavit
which reveals that the house of the victim i.e. in
Village Thach viz-a-viz the house of the convict i.e. in
Village Bhares are located in different villages and the
approach from victim's house to her school is
entirely different. However, the Additional Deputy
Commissioner Kullu has casually forwarded a
communication dated 03.04.2025 [Annexure R-2]
endorsing the earlier non-recommendation, stating
that the parole may not be granted, which ex-facie
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reveals perversity in decision making process and then
the rejection orders are vitiated.
9(vii). Even, a communication dated 08.03.2025
from the Superintendent of Police Kullu, also
corroborates the claim of the petitioner by stating
that the house of the petitioner-Devender Kumar
alias Jhengi and the house of the victim/victim's
mother is approximately two kilometers apart and both
reside in different villages i.e. petitioner in village
Bhares and the victim in village Thach which are
distantly situated. The aforesaid report further states
that the road/path leading from victim's house to
victim's school does not pass through the house of the
petitioner-Devender Kumar alias Jhengi and the
rejection order(s) passed by ignoring these material-
relevant factors is sufficient to set-aside the impugned
orders.
9(viii). Despite the above material on record
the Additional Deputy Commissioner Kullu, has
forwarded a communication/report dated 03.04.2025
[Annexure R-2] in not recommending the case for
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grant of parole. Based on said report of District
Magistrate, Kullu dated 03.04.2025 [Annexure R-2] the
parole request has again been rejected on 04.04.2025
[Annexure R-3] by ignoring the material on record and
without applying its mind to relevant factors i.e. No
Objections by the Panchayat Functionaries, local
residents and the Custody Certificate revealing
Satisfactory Conduct and the factum that the
distance of victim's house to the house of petitioner is
two kilometers, which are distantly located in different
villages altogether been brushed aside. Thus, the
rejection orders dated 05.02.2024 [Annexure P-2] and
the Fresh Rejection Orders dated 04.04.2025
[Annexure R-3] passed by ignoring relevant aspects
leads to perversity and therefore, the Impugned
Order(s) cannot sustain and the same are accordingly
set-aside.
10. Case records manifest that once the
designated authorities under State Act and Rules
have failed to resort to a comprehensive exercise
for formation of required opinion, in the context of
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object and rationale of Parole as mandated by
the Statute, Rules and Law in the case of M. L.
Wadhawan, Asfaq, Narayan, Atbir (supra) therefore,
the impugned order(s) and the action of the State
Authorities in denying parole to the petitioner is illegal,
arbitrary and it cannot be permitted to operate.
Accordingly, the same are set-aside.
11. Submission of Learned State Counsel
that parole cannot be claimed as of right.
The above contention of the Learned
State Counsel is to be examined in the context,
that even if parole is a concession, then also,
the designated authorities are bound to exercise
its discretion in a fair, impartial and judicious
manner, by taking a holistic view, after taking
into account the mandate of the Act/Rules and
all other relevant factor(s)/materials including the
good conduct and behavior during custody and
the fact as to whether the designated authorities
have not pointed out any cogent and convincing
material disentitling the petitioner for parole on
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the ground that his temporary release is likely
to endanger the security of State or maintenance
of public order. A blanket denial of parole/furlough
needs to be disapproved for the reason, that the
concession of parole is a lawful consequence of
good conduct. Denial of parole shall certainly
amount to taking away the incentive/motivation
for good conduct and would be counter-productive
and will an antithesis to the reformative approach
and denial of parole/furlough shall whittle down
the incentive for maintaining good conduct or
reformative approach, and if a convict maintains
good conduct, parole/furlough cannot be denied
as a matter of course, in view of the mandate
of law declared by the Hon'ble Supreme Court in
the case of Atbir (supra).
Thus, in these circumstances, the
rejection order dated Rejection Orders dated
05.02.2024 [Annexure P-2] and the Fresh Rejection
Orders dated 04.04.2025 [Annexure R-3] denying
parole cannot operate to the prejudice and
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disadvantage of petitioner so as take away and deprive
him of meeting his family members, in facts of
instant case.
12. In order to maintain a balance between
the claim of the petitioner for parole vis-à-vis
the apprehension expressed by stakeholders i.e the
relatives and based thereon by local police that there is
a possibility that petitioner may repeat-commit similar
crime/offence against the victim.
The apprehension expressed that the
petitioner may repeat similar offence, in considered
view of this Court, cannot be the sole ground to deny
the parole request altogether in fact situation of the
instant case. However, apprehension, if any can be
adequately safeguarded, by incorporating stringent
condition(s), which is so done, in later part of this
order.
13. In similar eventualities, this Court had
granted the concession of parole in similar fact-
situation in CWP No. 4351 of 2023 titled as
Abshishek @ Shekhu versus State of Himachal
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Pradesh and others, decided on 02.08.2023;
CWP No.5289 of 2023 titled as Vijay Singh
versus State of Himachal Pradesh and others,
decided on 31.08.2023; CWP No.528 of 2023
titled as Gopal Singh versus State of Himachal
Pradesh and others; CWP No. 9339 of 2023
titled as Sewak Ram @ Sanjeev versus State
of Himachal Pradesh & Others, decided on
18.12.2023; CWP No.2885 of 2023 titled as
Sunil Kumar versus of Himachal Pradesh &
Others, decided on 03.04.2025; and in CWP
No. 3338 of 2025 titled as Kedar Singh versus
State of Himachal Pradesh & Others, decided
on 07.04.2025; and in CWP No.2609 of 2025, titled
as Kashish Gulyani versus State of Himachal
Pradesh & ors., decided on 11.04.2025.
CONCLUSION AND DIRECTIONS:
14. In view of the above discussion and for
reasons recorded hereinabove, the instant petition
is allowed, in following terms: -
(i) Rejection orders dated 05.02.2024
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[Annexure P-2] and the Fresh
Rejection Orders dated 04.04.2025
[Annexure R-3] disallowing the parole
request of the petitioner are quashed
and set-aside ;
(ii) A mandamus is issued that the
Respondents State Authorities shall
release the petitioner on parole for 28
days on 27.05.2025 in pursuance to his
application dated 02.08.2023;
(iii). During parole the petitioner shall not
visit towards the house of the victim or
her school;
(iv). As a sequel to directions (i) to (iii)
supra, the petitioner shall surrender
before concerned jail authorities i.e.
Superintendent Jail, Model Central
Jail, Kanda, District Shimla [HP], on
26.06.2025, before 3:00 p.m.;
(v). Release of parole shall be subject
to furnishing a personal bond by
petitioner to the tune of Rs 25,000/-
[Rupees Twenty Five Thousand] with
one surety of his native place to
the satisfaction of the Trial Court
concerned;
(vi). During parole, petitioner shall neither
involve himself nor shall abet the
commission of any offence hereinafter.
Involvement in any offence whatsoever
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or its abetting thereof shall entail
automatic cancellation of concession
of parole granted in terms of this
order;
(vii). Petitioner shall disclose his functional
E-Mail IDs/ WhatsApp number and
that of his surety to Superintendent
(Jails) concerned;
(viii). Petitioner shall not jump over the
parole and also shall not leave the
country;
(ix). Learned Trial Court or the State
Authorities, including Superintendent
Jail, Shimla, District Shimla, is free
to impose any other condition on
the petitioner before or during parole
period hereinafter;
(x). State Authorities are free to move
this Court for seeking alteration/
modification or cancellation of parole
in case, of violation of any condition
imposed in terms of this order or
by Learned Trial Court or Supdt.
Jails concerned or if fact situation
of instant case or circumstances
so necessitate, at any time herein-
after;
(xi). Costs made easy for respective parties
herein.
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15. Registry is directed to furnish a copy of
this judgement to the Director General, Prisons
and Correctional Services, Himachal Pradesh Shimla
and to District Magistrate/Deputy Commissioner,
Superintendent of Police Shimla, District Shimla [HP]
through Email and/or other permissible modes for
compliance.
In aforesaid terms, the instant petition
and all pending application(s), if any, shall stand
disposed of.
(G.S. Sandhawalia) (Ranjan Sharma)
Chief Justice Judge
May 07, 2025
[Shivender]
