Himachal Pradesh High Court
Date Of Decision:27.5.2025 vs State Of H.P. & Another on 27 May, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
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CWP No. 11538 of 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 11538 of 2024
Date of decision:27.5.2025
Mohan Lal. ...Petitioner.
Versus
State of H.P. & Another. ...Respondents.
Corum
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner. Mr. George and Mr.Vinod Kumar Soni,
Advocates.
For the Respondents: Mr.Manoj Chauhan, Additional Advocate
General.
Vivek Singh Thakur, Judge
Petitioner by invoking provisions of Article 226 of the
Constitution of India, has approached this Court seeking direction to the
respondents to release him on parole of 30 days because of rejection of his
application submitted for parole, by the competent authority due to non-
recommendation by concerned authority, which was communicated to him
vide communication dated 13.11.2024, during pendency of the petition.
2. Petitioner is a convict and serving his sentence imposed upon
him vide judgment dated 23.5.2023 passed by learned Sessions Judge,
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
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Kinnaur at Rampur Bushahr in case FIR No.197 of 2015, registered under
Sections 302, 201, 34 of the Indian Penal Code in Police Station Rampur,
District Shimla, H.P. and sentenced to undergo rigorous imprisonment for
life and to pay a fine of ₹2,05,000/- and in default of payment of fine, to
further undergo 1 year and 1 month's simple imprisonment.
3. Petitioner, before conviction, had spent 2 years 14 days as an
undertrial prisoner. After the date of sentence, i.e. 23.5.2023, he is in
detention.
4. Petitioner vide application dated 5.6.2024 had applied for his
temporary release on parole for 42 days on the ground that he was serving
the sentence in a disciplined manner in Model Central Jail, Kanda, District
Shimla, H.P. He belongs to a poor family. His father has passed away,
and he intends to meet his old mother and to do agricultural work to help
his mother. Thus, his prayer to enlarge him on parole was twofold, i.e. for
agricultural work and to meet his family.
5. Till the filing of the petition on 15.10.2024, no decision was
taken and communicated to the petitioner with respect to his application for
parole. After filing of the petition, respondents-State filed instructions dated
6.11.2024 alongwith documents, which indicates that the matter was
referred by the Superintendent Model Central Jail, Kanda vide letter dated
11.6.2024 for verification/report of Superintendent of Police through District
Magistrate, Shimla and till October, 2024, nothing was done by the
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Superintendent of Police, Shimla. After the filing of the present petition,
Superintendent of Police, Shimla, through Police Station, Rampur, carried
out verification and recorded statements of the family of the victim, i.e.
mother and wife of the victim, the statement of Pradhan and Ward Panch of
Gram Panchayat as well as mother of the petitioner on 16.10.2024. In the
statements, the family of the victim had expressed apprehension of damage
from the release of the petitioner on parole, whereas Pradhan and Ward
Panch of the Gram Panchayat had communicated no objection on behalf of
the inhabitants of the village. As expected, the mother of the victim had
also requested for enlarging the petitioner on parole. Thereafter, the
Superintendent of Police had submitted his report to the District Magistrate
vide communication dated 29.10.2024, which was received in the Office of
the Additional District Magistrate on 4.11.2024, and thereafter Additional
District Magistrate vide communication dated 5.11.2024 had communicated
non-recommendation of sanction of temporary release of the petitioner.
6. It is also apt to record that along with petitioner, Govind,
Chaman Lal and Sunil Kumar were also convicted, and some of them had
also applied for parole and for not enlarging them on parole, they have also
approached the Court.
7. Taking note of the aforesaid facts, the petition for enlarging on
parole filed by the co-convict was allowed. However, the present petition
was kept pending as we do not find any provision dealing with the situation
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where more than one convict for a heinous offence, like Section 302 IPC,is
seeking parole simultaneously.In such a situation, whether all convicts can
be enlarged on parole together or they are to be enlarged on parole turn by
turn and on what basis, priority of temporary release is to be given are the
questions which are not covered by any provision. Therefore, the present
petition was not taken for consideration along with connected matters;
however, during the pendency of the petition, certain information was called
from the respondents-State, which has been placed on record.
8. It has been submitted on behalf of respondents-State that
enlargement of convicts on parole is governed by The Himachal Pradesh
Good Conduct Prisoners (Temporary Release) Act, 1968, Himachal
Pradesh Good Conduct Prisoners (Temporary Release) Rules, 1969 (for
short the "Rules, 1969") as well as provisions complied in Prison Manual,
2021, especially Chapter-XIX thereof and instructions issued from time to
time to supplement the provisions of the Act, Rules and Jail Manual. Some
discrepancies or ambiguities were also noticed in the procedure provided
for temporary release in Rules, 1969 and Chapter-XIX of the Prison
Manual dealing with parole and furlough, especially in Rule 3 of Rules,
1969 and para 19.18 of the Prison Manual. Rule 3 (2) of the Rules, 1969
reads as under:-
"3. (2) The Superintendent of Jail shall forward the application
of a prisoner within 24 hours of its receipt, along with his
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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 Prisons (Releasing Authority)
together with report of Superintendent Jail, who shall decide
the parole/ furlough case ordinarily within three days from the
date of receipt of the recommendations of the District
Magistrate.
In the event of the serious illness of a 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 the death of a 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 a
reasonable time about the genuineness of the certificate. To
satisfy himself, he will approach the concerned Police Station
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by wireless and verify the truth of the death and the exact
relationship of the prisoner with the deceased 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 prison 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 Prisons, enabling him to
ensure that the Superintendent has used proper discretion in
effecting the release."
9. Para 19.18 of the Prison Manual reads as under:-
"19.18 The Superintendent of Jail shall forward the application
so received to the Superintendent of police of the concerned
district within 3 days of receipt of the application, along with
the recommendation of the Superintendent of Prison for his
report through the District Magistrate concerned. The
Superintendent of Police shall send his report to the
competent authority through the District Magistrate within 14
days from the date of receipt of the reference of the
competent authority. The District Magistrate is allowed 3 days
to forward the report of the Superintendent of Police, so
received, to the competent authority. In case the police
disagree with the proposed release of a prisoner on leave,
reasons for such disagreement should be specified. The
competent authority is allowed a period of 7 days to decide on
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the application from the date of receipt of the report of the
District Magistrate was received by him."
10. Rule 3 of the Rules, 1969 provides that the Superintendent of
Jail shall forward a prisoner's application within 24 hours of its receipt,along
with his report, to the District Magistrate of the District to which the convict
belongs. In contrast, para 19.18 of the Prison Manual provides that the
Superintendent of Jail shall forward the application to the Superintendent of
Police through the District Magistrate within 3 days of receipt of the
application, along with the recommendation of the Superintendent of
Prison. It is not clear from para 19.18 in what context the Superintendent of
Prisons has been referred separately. In Rule 3 of Rules, 1969, there is a
reference to a report of the Superintendent of Jail, whereas in para 19.18,
there is a reference to forwarding of the application by the Superintendent
of Jail, but along with recommendations of the Superintendent of Prison. In
case both the Superintendent of Jail and the Superintendent of Prison are
the same authority, then the language should have been "along with his
recommendations". But para 19.18 of the Prison Manual purports that the
Superintendent of Jail and the Superintendent of Prison are two different
authorities. The application is to be forwarded within 24 hours to the District
Magistrate as per Rule 3 of the Rules, 1969, whereas para 19.18 of the
Prison Manual provides forwarding of the said application within 3 days of
receipt.
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11. Rule 3 of the Rules, 1969 provides that District Magistrate
shall complete the procedure in consultation with the Superintendent of
Police within one week and forward his recommendations to Inspector
General of Prisons/Releasing Authority together with the report of
Superintendent Jail and the concerned authority shall decide the parole
case ordinarily within 3 days from the date of recommendation of District
Magistrate. Whereas, para 19.18 of the Prison Manual provides that the
Superintendent of Police shall submit his report to the competent authority
through the District Magistrate within 14 days from the date of receipt of
reference of the competent authority, and the District Magistrate shall
forward the report within 3 days to the competent authority.
12. It is also noteworthy that in the process provided under para
19.18 of Prison Manual, reference to the District Magistrate is to be made
by Superintendent of Jail and whereas competent authority to sanction
release on parole or furlough provided under para 19.15 of the Prison
Manual is Head of the Prison Department or any other competent authority
as mentioned in the law/instructions in the subject and normal
circumstances Director General of Prison Department is the Head of the
Prison Department and thus is competent authority. As per para 19.18 of
Prison Manual, Head of Department Director General of Prison, is not the
authority making reference to the Superintendent of Police through District
Magistrate, but it is Superintendent of Jail, therefore, when no reference is
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received of the competent authority by District Magistrate or Superintendent
of Police, then who and from which date 14 days are to be counted from the
date of receipt of reference of the competent authority. As per Rule 3 of the
Rules, 1969, the report is to be submitted within 7 days, whereas as per
para 19.18 of the Prison Manual, the report is to be submitted within 17
days (14+3 days) to the competent authority. As per Rule 3 of the Rules,
1969 competent authority has to take a decision ordinarily within 3 days,
whereas para 19.18 provides 7 days to decide the application.
13. In the present case application was submitted on 5.6.2024,
which appears to have been referred to the District
Magistrate/Superintendent of Police on 11.6.2024, i.e. within 5 days.
Thereafter District Magistrate and Superintendent of Police took nearly 5
months to report back. It is not a case where the convict was residing in
another District or another State or a distantly located part of India, but the
jail is in Shimla, the District Magistrate and Superintendent of Police are
from Shimla, and the convict is also a resident of District of Shimla. From
the information available on record, submitted by the Department as well as
apparent from the submissions made by learned counsel for the petitioner
including learned Additional Advocate General, there are huge number of
cases where prisoners are compelled to approach the Court for no
decisions on their applications for a considerable long time, sometimes 8-9
or 12 months. It has also come on record that a large number of prisoners
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are released on parole only after the intervention of the Court, even though
they are entitled to parole even otherwise in ordinary circumstances. But
for the laxity or callous attitude or insensitive approach of the concerned
Officers/authorities, convict prisoners are denied temporary release for the
periods during which they need it desperately.
14. In para 19.12 of the Prison Manual, eligibility for first release
on parole or furlough is clear on completion of 1 year of actual
imprisonment, which should be counted from the date of admission to the
prison. There were instances where persons were in detention as an
undertrial prisoner for more than 1 year, sometimes for 4-5 years and
thereafter they were convicted and admitted to jail as a convict prisoner.
Undertrial prisoners are not entitled to parole or furlough, or any other
temporary release, except interim bail granted by the Trial Court during the
pendency of the Trial in extraordinary circumstances. Such convicts, when
approached Superintendent Jail/competent authority, after conviction, for
their enlargement on temporary release, but before expiry of 1 year from
the date of conviction, their applications were and are rejected for non-
completion of 1 year of actual imprisonment, counting such period from the
date of admission to the prison. There may be a case where persons are
convicted for 5 years imprisonment after spending 4 years as an undertrial
prisoner. In such an event, for 4 years, such a person was not entitled to
parole or furlough, and after conviction, he shall not be entitled to temporary
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release or parole or furlough because he is not entitled to temporary
release or parole until the completion of one year's imprisonment as a
convict. Thus, he is effectively denied the temporary release/parole.
15. Realising the aforesaid facts and circumstances, the Co-
ordinate Bench of this Court vide judgment dated 2.7.2024 passed in CWP
No. 2733 of 2024, titled as Duni Chand Vs. State of H.P. and another,
and judgment dated 8.4.2024 passed in CWP No. 1447 of 2024, titled as
Meera Devi Vs. State of H.P. & others had directed the respondents to
enlarge convicts/prisoners on parole after taking into consideration their
period of detention as undertrial prisoners, as well as the period spent in
other jails before their admission to the last prison, wherefrom the prisoner
had applied for temporary release on parole.
16. No doubt, after passing of aforesaid judgments, instructions
dated 13.8.2024 regarding parole of convicts were circulated by the State of
Himachal Pradesh as under:-
"While recommending the first release of a convict on parole,
in future, the following instruction should be followed:-
(1) "Temporary Release of convicted prisoners is to
be considered after undergoing one year of actual
imprisonment to be counted from the date of
admission to prison."
17. Para 19.12 of the Prison Manual reads as under:-
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"9.12 Subject to the above, eligibility for parole and furlough
should be regulated as follows:
When due for first When due for When due for
release on parole second release subsequent
releases.
On completion of After completion After completion of
one year of actual of six months of six months of
imprisonment-- to actual actual
be counted from the imprisonment -- to imprisonment, to be
date of admission to be counted from counted from the
prison. the date of his last date of his last
return from return from leave.
parole.
18. Perusal of para 19.12 and instructions dated 13.8.2024, on
the face of it, depicts that there is no change in the condition for
determining the due date for eligibility for temporary release on parole or
furlough for the first time. Though it has been communicated on behalf of
respondents that the period spent as an undertrial prisoner, in continuity
with detention before and after conviction, is being taken into consideration
for a qualifying period of one year of actual imprisonment to determine
eligibility for parole and furlough for the first time. However, there are
instances noticed in various petitions that sometimes some
Officers/authorities are not taking the period of detention as an undertrial
prisoner for qualifying 1 year of actual imprisonment for the first release on
parole.
19. It is apt to record that the aforesaid interpretation is based on
a basic difference between the nature of detention as an undertrial prisoner
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and a convict prisoner, and also the definition of prisoner in the Himachal
Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968, applies.
20. Following definitions given in the Prison Manual, 2021 may be
relevant:-
"(4) Civil prisoner" means any prisoner who is not committed
to custody under a writ, warrant or order of any court or
authority exercising criminal jurisdiction, or by order of a court
martial and who is not a detenue;
...... ..... ...
(8) "Convict" means any prisoner under sentence of a court
exercising criminal jurisdiction or court martial and includes a
person detained in prison under the provisions of chapter VIII
of the Code of Criminal Procedure of 1973, (Central Act 2 of
1974) and the Prisoners Act of 1900 (Central Act 3 of 1900);
...... .... ....
(29) "Military Prisoner" means a prisoner convicted by court
martial;
..... ..... .....
(34) "Prison" means any place used permanently or
temporarily under the general or special orders of the State
government for the detention of prisoners, under section 417
of the Code of Criminal Procedure, 1973 and includes all land
and buildings used thereto, but does not include;
(a) any place for the confinement of prisoners who
are exclusively in the custody of the police;
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(b) any place specially appointed by the State
government under section 541 of the Code of Criminal
Procedure, 1882 (10 of 1882); and
(35) "Prisoner" means any person confined in prison under the
order of a competent authority;
(36) "Criminal Prisoner" means any prisoner duly committed to
custody under the writ, warrant or order of any Court or
authority exercising criminal jurisdiction, or by order of court-
martial;
(37) "Convicted criminal Prisoner" means any criminal
prisoner under sentence of a court or Court martial, and
includes a person detained in prison under the provisions of
Chapter VIII of the Code of Criminal Procedure, 1973, or
under the Prisoners Act, 1900;
...... ...... ....
(52) "Under-trial prisoner" means a person who has been
committed to judicial custody pending investigation or trial by
a competent authority."
21. Aforesaid definitions given in Prison Manual, 2021 give the
definitions of various kinds of prisoners in general, but the definition at Sr.
No. 35 of prisoner is also general, which covers all persons confined in
prison under the order of the competent authority. However, for the
applicability of the Himachal Pradesh Good Conduct Prisoners (Temporary
Release) Act, 1968, the definition of prisoner to whom provision for
temporary release on parole and furlough has been enacted, is to be
governed as per the definition given in this Act. Section 2(g) of Himachal
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Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 defines a
prisoner as under: -
"2(a) to (f)......
(g) "prisoner" means a person confined in prison under a
sentence of imprisonment."
22. It is also apt to record here that the undertrial prisoner is not a
convict and thus not a prisoner confined in prison under a sentence of
imprisonment. An undertrial prisoner is not supposed to be detained in a
regular jail, therefore, there is a provision for keeping undertrial prisoners
and prisoners in different compartments/cells of the jail in case a separate
jail is not in existence or available for convict prisoners and undertrial
prisoners. There is a provision for providing judicial lockups at the places of
trial. Due to the unavailability of such judicial lockups and also for serious
difficulty in managing a large number of judicial lockups for detaining
undertrial prisoners, undertrial prisoners are being kept in the prison,
though separate from convicts.
23. Undertrial prisoners are, in fact, in judicial custody. They are
committed to jail by handing them over to the Superintendent of Jail in their
extended custody of the Court. They are detained in jail by the concerned
authority under orders of the Court during the period of detention till
conviction or acquittal or grant of bail on behalf of the Court, and, therefore,
they are not treated to be prisoners, much less convict prisoners.
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24. Irrespective of the aforesaid difference between the convict
prisoners and the undertrial prisoners, the fact remains that both are
detained in prison. No doubt, a person may be considered to have been
admitted to jail/prison only after conviction. Before that, he was an innocent
person, but under detention for non-grant of bail, in the custody of the
Court. However, he suffers trauma of detention like a convict prisoner.
Therefore, he may not be entitled to parole or furlough like a convict
prisoner, but after his conviction, his previous period of detention must be
taken into consideration for the extension of the benefit of parole or furlough
to him to avoid unnecessary hardship. Therefore, in Duni Chand's case
(supra) Co-ordinate Bench of this Court had directed to consider the entire
period of the custody, including the custody as an undertrial prisoner, for
determining the eligibility for parole for the first time. To remove any doubt,
it would be appropriate to carry out necessary corrections or issue a
corrigendum explaining that to determine the date of completion of 1 year
for applying first parole, the period of detention as an undertrial prisoner,
followed by imprisonment as a convict prisoner without interruption, is to be
taken into consideration. Needless to say, in case of enlargement on
temporary bail or interim bail to an undertrial prisoner, the period for the
aforesaid purpose shall be counted from the date of surrender by the
undertrial prisoner after expiry of the period of interim/temporary bail.
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25. There is no provision, instructions or directions about the
percentage of convict prisoners to extend the benefit of temporary release
on parole or furlough at a particular point of time. Similarly, there is also a
vacuum with respect to eligibility of co-convicts, particularly for commission
of a heinous crime, to be extended the benefit of parole or furlough
simultaneously or turn by turn, one after another. There may be
circumstances where the simultaneous temporary release of such prisoners
may give a wrong impression to society, but the possibility cannot be ruled
out that extraordinary circumstances may warrant for extension of benefits
of temporary release on parole or furlough to all of them or more than one
of them. In this regard, also, proper necessary provisions are required to
be made.
26. The present petition was kept pending, and the co-convict was
allowed to be enlarged on temporary release on parole; however, by now
their parole period may have ended, and they may have surrendered. If so,
then the petitioner shall also be extended the benefit of temporary release
for 30 days on usual terms with the additional condition of furnishing a
personal bond in the sum of ₹1,00,000/- with one surety in the like amount
to the satisfaction of the Superintendent Jail. In this regard, the competent
authority shall issue a final order within 10 days from today, and in case the
co-convict is still on parole, then within 10 days after expiry of the parole
period of the co-convict, with the condition that no co-convict is on
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temporary release during that period, unless extraordinary circumstances
warrant so.
27. It is also undisputed fact that because of lacuna in the system,
delay in deciding the application, absence of standardized parole procedure
in the State, lack of proper guidance and training, insensitive approach of
the concerned authorities, delay in deciding the applications for parole is
resulting into flood of Writ Petitions in the Courts in parole matters, causing
wastage of valuable time and energy of the Courts, State as well as
stakeholders and also causing wastage of public exchequer and such a
situation is causing unnecessary overburden on the Courts working, leading
to delay in deciding other matters of much more importance. Therefore, we
are constrained to issue following directions inter alia amongst other
directions issued and observations made herein above:-
(i) Taking into consideration the pronouncement of the
Supreme Court in Asfaq Vs. State of Rajasthan and others
(2017) 15 SCC 55, we consider it fit to observe that there
should be an unambiguous, meaningful provision for
considering eligibility for enlarging prisoners on parole,
including eligibility for applying for parole for the first time.
The denial of the extension of the benefit of parole should not
be based upon vague and general objections communicated
casually, but there must be substance or material to sustain
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the reasons for not recommending the case of the prisoners
for release on parole. Mere apprehension without any
substance or material should not be made basis for denying
the benefit of temporary release on parole. The denial or non-
recommendation should be based on a credible assertion,
including a real cause or threat warranting non-
recommendation and denial of the benefit of temporary
release.
(ii) Necessary amendments/corrections be carried out and
corrigendum be issued explaining that to determine the date
of completion of 1 year for applying first parole, the period of
detention as an undertrial prisoner, followed by imprisonment
as a convict prisoner without interruption, is to be taken into
consideration. Needless to say, in case of enlargement on
temporary bail or interim bail to an undertrial prisoner, the
period for the aforesaid purpose shall be counted from the
date of surrender by the undertrial prisoner after expiry of the
period of interim/temporary bail.
(iii) The respondents should develop a mechanism to
promulgate, monitor, revise and enforce compliance of
relevant provisions, Jail Manual, H.P. Good Conduct
Prisoners (Temporary Release) Act and Rules framed
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thereunder, especially with respect to the time frame
prescribed for process, considering and deciding the
applications for temporary release.
(iv) Respondents are also directed to undertake exercise to
remove discrepancies and ambiguities among various
provisions contained in the Act, Rules framed thereunder, as
well as the Jail Manual, particularly with respect to the manner
of processing of applications and time provided to the
concerned authority to perform various acts on its part.
(v) There should be a strong mechanism to ensure
adherence to the time schedule prescribed for processing,
considering and deciding the applications for extension of
benefits of temporary release. Failure, for no plausible
sufficient cause, must invite stringent adverse action against
the erring officials/officers. Necessary amendments in the
Act, Rules and Jail Manual be incorporated.
(vi) Provisions with respect to the percentage of
prisoners permissible to be enlarged on temporary release
should be incorporated in the relevant provisions, the Act,
Rules and Jail Manual.
(vii) There is also a vacuum with respect to eligibility
of co-convicts, particularly for commission of a heinous crime,
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to be extended the benefit of parole or furlough
simultaneously or turn by turn, one after another. There may
be circumstances where the simultaneous temporary release
of such prisoners may give a wrong impression to society, but
the possibility cannot be ruled out that extraordinary
circumstances may warrant for extension of benefits of
temporary release on parole or furlough to all of them or more
than one of them. In this regard, also, proper necessary
provisions are required to be made.
(viii) Provisions providing a mechanism for
consideration of applications of each convict during his
detention as a prisoner for extension of the benefit of
temporary release must be provided by incorporating a
suitable provision. An application/software may be developed
for regulating, receiving, processing, considering and deciding
the applications for temporary release.
(ix) A mechanism to track the applications for parole
should be developed.
(x) Monthly statements of pendency of applications
for parole submitted by prisoners, along with their status, must
be issued and considered by the competent authority to
ensure the timely disposal of parole applications.
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28. The aforesaid exercise shall be undertaken by the
respondents on or before 15th July, 2025.
The petition stands disposed of in the aforesaid terms.
(Vivek Singh Thakur),
Judge.
(Rakesh Kainthla),
Judge.
27th May 2025
(Keshav)
