Punjab-Haryana High Court
Shahbaj Singh vs State Of Haryana And Others on 10 November, 2022
CRWP-8858-2022 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRWP-8858-2022 (O&M)
Date of Decision:10.11.2022
Shahbaj Singh ... Petitioner
Versus
State of Haryana & others ... Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
HON'BLE MR. JUSTICE SANJIV BERRY.
Present:- Mr. Rubal Garg, Advocate
Mr. Sonpreet .S. Brar, Advocate for the petitioner.
Mr. Vivek Saini, Addl. AG, Haryana.
.....
SANJIV BERRY, J. (ORAL)
The instant petition has been filed challenging the impugned
order dated 25.08.2022 (Annexure P-5) passed by respondent No. 2 vide
which the application for grant of parole to the petitioner had been declined
by the Divisional Commissioner, Ambala Division, Ambala, on the ground
that the petitioner falls into the definition of a 'hard-core criminal' and has
also sought directions to the respondents for granting parole to the petitioner
to enable him to meet his family members.
A perusal of the paper book reveal that the petitioner is
undergoing life imprisonment under Section 302 of IPC in case FIR No. 345
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dated 01.07.2016 under Sections 302, 376-A IPC and 6 of POSCO Act
registered at Police Station Sadar, Thanesar, District Kurukshetra and the
said conviction had been challenged vide appeal number CRA-D-750-DB of
2018, which is lying admitted before this Court.
After issuance of notice of motion on 14.09.2022, respondents
No. 1 to 5 filed their reply way of an affidavit dated 07.10.2022 , wherein it
was submitted that the petitioner cannot claim parole as a matter of right as
this is only a concession given to the prisoners for good conduct on certain
grounds.
Learned counsel for the petitioner contends that petitioner is in
custody since 02.07.2016. He had filed his first regular parole application
under Section 3 (2) of the Haryana Good Conduct Prisoners (Temporary
Release) Act, 2022 for a period of 07 weeks, which was considered and
rejected by the Divisional Commissioner, Ambala Division, Ambala, by
passing the impugned order dated 25.08.2022 (Annexure P-5), after
considering the reports of Superintendent of Police, Kaithal, and District
Magistrate, Kaithal, solely on the ground that the petitioner-convict falls
under the category of 'hardcore criminal' and if he is granted parole he
would commit serious crime.
Learned counsel for the petitioner contends that the action of
not granting parole to the petitioner is not just a punishment to the petitioner
but to his family as well. He further submits that the conduct of the
petitioner has been good and cooperative in jail, as is clear from the
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recommendation (Annexure P-4), so made by the Jail Superintendent,
District Jail, Kurukshetra. He further submitted that the offence for which
the petitioner has been convicted does not fall in the category of 'hardcore
criminal' as no penetrative sexual assault is therein alleged, as per the
requirement or Rule 2(g)(5) and 2(g)(6) of the Haryana Good Conduct of
Prisionsers Temporary Release) Act, 2022.
Learned counsel refers to the judgments of this Court in Aman
Singh vs. State of Haryana,1997 (4) RCR (Criminal) 287 and Mehboob
vs. State of Punjab through Director General of Prisons, 2002 (4) RCR
(Criminal) 463, to contend that parole cannot be refused on the ground that
there was apprehension of peace and it is the duty of police and the District
Magistrate to give protection to the people.
However, learned State counsel submits that as per Haryana
Good Conduct Prisoners (Temporary Release) Act, 2022, a prisoner cannot
claim parole as a matter of right as it is the only concession given to the
prisoner for his good conduct and on certain conditions.
We have given our thoughtful consideration to the matter and
have also gone through the record with the assistance of learned counsel for
the respective parties.
Hon'ble Apex Court in Asfaq vs. State of Rajasthan and
others, 2017 (15) SCC 55 while dealing with the issue of provisions of
parole and furlough, has held that a humanistic approach is to be adopted
against those who are lodged in jails. It has been held therein that furlough is
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a brief release from the prison which is conditional and is given in case of
long term imprisonment which is granted as a good conduct remission. His
release from jail for short period has to be considered as an opportunity
afforded to him not only to solve his personal and family problems but also
to maintain his links with society and the convicts too mush breathe fresh air
for at least some times provided, they maintain good conduct consistently,
during incarceration and show a tendency to reform themselves to become
good citizens. Thus, the redemption and rehabilitation of such prisoners for
good of society must receive due weightage while they are undergoing
sentence of imprisonment. Hon'ble Apex Court has further clarified that the
provisions of parole and furlough thus provide for humanistic approach
towards those lodged in jails. Even citizens of the country have a vested
interest in preparing offenders for successful re-entry into the society after
their release. Those who leave prisons without a strong network of support,
employment prospects, fundamental knowledge of the community to which
they will return and without resources stand a significantly higher chance of
failure. Furlough or parole can help the offenders prepare for success. Being
in a civilized society organized with law and 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 such crime he seizes to be a
human being and he can be deprived of those aspects of life which
constitutes human dignity. It has been emphasized that the parole
programme should be used as a tool to shape such adjustments.
Further a Division Bench of this Court in Ram Chander vs.
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State of Punjab and others2017(3) R.C.R. (Criminal) 340, while taking
into account the judgment in CRM-M No.34013 of 2009 titled Varun @
Gullu vs. State of Haryana and others, decided on 26.04.2010, had
noticed that the benefits of parole and furlough are regulated by a statute and
the authorities cannot act arbitrarily, capriciously or without due application
of mind. Declining the request for parole or furlough only for the reason of
apprehension of breach of peace, for which there is no such condition under
the Act, was held not to be justified.
In the present case the benefit of parole has been declined to
the petitioner vide impugned order dated 25.08.2022 (Annexure P-5) on the
ground that convict falls under the 'hardcore criminal'and if convict is
granted parole it cannot be denied that he would commit some serious crime
and also placed reliance on the report of the District Magistrate, Kaithal, and
Superintendent of Police, Kaithal, not recommending the grant of parole to
the petitioner. It is clear from the report of the Superintendent, District Jail,
Kurukshetra, (Annexure P-4) that the petitioner is being in jail for more than
05 years. He has not committed any jail offence nor is there any other case
pending against him and such the Superintendent of Jail had recommended
his first parole. The reasoning given in impugned order to the effect that if
convict is granted parole, it cannot be denied that he would commit some
serious crime is, thus, not sustainable as mere likelihood of committing a
crime while being on parole would not be sufficient ground to deny the
temporary release as such apprehension cannot be taken as threat to the
security of the state or maintenance of public order. The mere fact that a
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person is convicted of an offence does not ipso facto mean that he may
abscond or commit a crime if released temporarily as it is always open to the
authorities to impose stringent conditions to guard against such eventualities.
It appears that the competent authority while passing the
impugned order dated 25.08.2022 (Annexure P-5) acted mechanically and as
such we feel, in the circumstances mentioned above, that the impugned order
is without any sustainable reasons and accordingly the present petition is
allowed by setting aside the impugned order dated 25.08.2022 (Annexure P-
5). The petitioner shall be released on parole for the period of six weeks on
his furnishing the requisite bail bonds to the satisfaction of the competent
authority and he shall surrender back in time in jail premises on the expiry of
the said period after his release from jail.
(TEJINDER SINGH DHINDSA) (SANJIV BERRY)
JUDGE JUDGE
10.11.2022
Preeti/Gyan
i) Whether speaking/reasoned? Yes/No
ii) Whether reportable? Yes/No
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