Punjab-Haryana High Court
Kuldeep @ Balkar vs State Of Haryana And Others on 6 November, 2023
Neutral Citation No:=2023:PHHC:140937
2023: PHHC: 140937
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CRWP-9208-2023
Reserved on: 31.10.2023
Pronounced on: 06.11.2023
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KULDEEP @ BALKAR
. . . . Petitioner
Vs.
STATE OF HARYANA AND OTHERS
. . .Respondents
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CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
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Present: - Mr. Harsh Rana, Advocate, for the petitioner.
Mr. Parveen Kumar Aggarwal, DAG, Haryana.
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DEEPAK GUPTA, J.
Petitioner is aggrieved by the order dated 15.03.2023
(Annexure P1) passed by the Superintendent Jail, District Jail, Nuh,
whereby application of the petitioner for his temporary release on parole
has been rejected. By way of this petition, prayer is made for issuance of a
writ in the nature of certiorari for quashing the aforesaid order dated
15.03.2023 and further to issue writ in the nature of mandamus directing the
respondents to release the petitioner on parole for a period 10 weeks under
Section 3(2) of the Haryana Good Conduct Prisoners (Temporary Release)
Act, 2022 [for short 'the Act'].
2. Admittedly, petitioner is serving sentence of imprisonment for
life in District Jail, Nuh, after his conviction recorded in case FIR No.115
dated 11.04.2010 registered at Police Station Ganaur Sonipat, under
Sections 148/149/302/307/324/323/395/447 IPC and Section 25 of the
Arms Act. Criminal Appeal bearing CRA-D-394-DB-2013 filed by the
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petitioner, was dismissed by this Court vide judgment dated 11.01.2017.
Petitioner applied for temporary release on parole and his request has been
declined by way of the impugned order on the ground that he falls in the
category of hardcore prisoner, in accordance with Section 2(1)(g)(vi) of the
Act.
3. The contention of ld. counsel for the petitioner is that words
used in Section 2(1)(g)(vi) of the Act are that 'whoever commits an
offence'. Ld. counsel contends that petitioner has not been convicted so far
in the two cases as referred by the Superintendent Jail in the impugned
order and so, he deserves to be released on parole.
4. Opposing the petition, respondent/State in its reply filed by
way of affidavit of Shri Resham Singh, Deputy Superintendent Jail, District
Jail, Nuh, on behalf of respondents No.1 to 4, has given details of the
pending cases against the petitioner, committed during parole, which are as
under: -
(i) Case FIR No. 213 dated 17.07.2020 u/s 341, 364A, 34 & 25/54/59
of the A. Act at PS Rai, Sonipat (Committed during special parole
period) - (Facing trial before the Ld. Court of Sh. Parmod Goyal,
Sessions Judge, Sonipat. He is on bail in this case.
(ii) Case FIR No. 304/2020 u/s 25/54/59 of A. Act PS Ganaur, Sonipat
(Committed during special parole period) - (Facing trial before the
Ld. Court of Ms. Sonia Sheokand, Sub Divisional Magistrate,
Ganaur, Sonipat. He is on bail in this case.
(iii) Case FIR No. 373 dated 10.08.2021 u/s 392.120B, 482 IPC PS
Dankaur, Gautam Budh Nagar (Committed during parole period) -
(Facing trial before the Ld. Court of ACJM, Sessions Judge.
Gautam Budh Nagar. He is on bail in this case.
Respondent/State has further given details of the cases already decided
against the petitioner, which are as under: -
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(i) Case FIR No, 404 dated 25.10.2013. U/s 420,506,120B IPC & 42
Prisons Act P.S. City Sonipat- (Acquitted by the Ld. Court of Sh
Surender Kumar, CJM Sonipat, on 05.10.2015).
(ii) Case FIR No. 277/2008, U/s 323,427,506 IPC P.S. Matlauda,
Panipat- (Acquitted by the Ld. Court of Dr. Sunita Grover, ACJM
Panipat, on 17.07.2012).
(iii) Case FIR No. 107/2007, U/s 323,324,506 IPC P.S. Ganaur,
Sonipat- (Acquitted by the Ld. Court of Sh Amit Garg, SDJM,
Ganaur, Sonipat, on 08.12.2012).
(iv) Case FIR No. 197/2009, U/s 323, 325, 34 IPC P.S. Ganaur,
Sonipat-(Acquitted by the Ld. Court of Sh Vikrant, JMIC, Ganaur,
Sonipat, on 12.11.2013).
(v) Case FIR No. 253/2012, U/s 42 Prisons Act P.S. City Sonipat-
(Acquitted by the Ld. Court of Sh Ashutosh, JMIC Sonipat, on
8.09.2014).
(vi) Case FIR No. 34 dated 11.04.2010, U/s 147,148,323,452,506 IPC
Matlauda, Panipat - (Acquitted by the Ld. Court of Sh Madhur
Bajaj, JMIC Panipat, on 07.08.2014).
5. (i) Ld. State counsel submits that apart from above, petitioner
committed jail offences, which have been judicially appraised, for recovery
of a mobile phone from him during search on 07.10.2013 and for which he
was awarded punishment of separate confinement in security cell for a
period of 30 days. The two cases bearing FIR No.213 dated 17.07.2020
registered at Police Station PS Rai, Sonipat under Sections 341, 364A, 34
IPC and 25/54/59 of the Arms Act; and FIR No.373 dated 10.08.2021
registered at Police Station Dankaur, Gautam Budh Nagar, under Sections
392, 120B and 482 IPC were registered against the petitioner for
committing the offences, when he was released on parole.
(ii) Ld. State counsel has further referred to the definition of
'hardcore prisoner' as provided under Section 2(1)(g) of the Act and
submits that petitioner falls in the said category. Ld. State counsel has
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further referred to the judgment of this Court passed in CWP No.10236 of
2018, titled as Virender @ Dhillu Versus State of Haryana and others,
decided on 26.04.2018 so as to contend that petitioner cannot claim release
on parole as a matter of right, and having regard to the facts and
circumstances of the case and the criminal history of the petitioner, parole
has been rightly declined by passing the speaking impugned order.
6. I have considered submissions of both the sides and have
appraised the record.
7. As per Section 2(1)(i) of the Act, 'parole' means temporary
release of a convicted prisoner from custody and is categorised as under: -
"2(1)(i) "parole" means temporary release of a convicted prisoner from
custody and is categorized as under: -
(i) 'custody parole' means escorting of a convicted prisoner under
armed police custody to the place of visit (within the territory of
Republic of India) and return therefrom for a specific period
and for specific reasons as provided under this Act;
(ii) 'emergency parole' means parole granted to a convicted
prisoner by the Superintendent Jail when a member of the
convicted prisoner's family has died or is in serious condition or
the convicted prisoner himself is in serious condition under
section 5;
(iii) 'regular parole' means parole granted to a convicted prisoner
by the competent authority under section 3;
8. A prisoner cannot claim release on parole as a matter of right.
It is just a privilege provided by the State. In this regard, observations made
by this Court in CWP-10236-2018 titled as Virender @ Dhillu vs. State of
Haryana decided on 26.04.2018, are relevant, which read as under: -
"The remission and parole are not the vested rights of the prisoners. In
fact, these are privileges granted by the State to the convicted prisoners.
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Therefore, a convict prisoner cannot claim these two privileges as his
vested rights. There is a difference between right and privilege. Rights are
classified under two categories of either being a fundamental right under
the Constitution, or a statutory right granted by the Statute. On the other
hand, a privilege is granted by the State under certain conditions and can
equally be taken away by the State. The privilege can be given on certain
specific grounds. Parole is a part of reformative theory of punishment. It is
not necessary that all the convicts must have the privilege extended to
them. These benefits can be refused in case refusal is based on intelligent
differentia and has a nexus to the object of the Rules. A refusal cannot be
violative of Article 14 of the Constitution of India. A prisoner may be
released temporarily by an officer appointed in this behalf by the state
government in case it is desirable for a sufficient cause."
9. In the present case, petitioner is praying for grant of regular
parole, which is to be considered by the competent authority under Section
3 of the Act, subject to such conditions and procedure as specified under
Sections 11 and 12 of the Act.
10. Section 3 of the Act deals with temporary release of convicted
prisoner on regular parole on certain conditions. Section 4 of the Act deals
with temporary release of convicted prisoner on furlough on certain
conditions. Section 5 deals with temporary release of a convicted prisoner
on emergency parole on certain conditions.
11. Section 6 of the Act deals with temporary release of a
convicted prison on custody parole. It also contains special provisions for
hardcore convicted prisoners. It reads as under: -
"(1) The competent authority shall grant custody parole to a convicted
prisoner subject to such conditions and procedure as specified under
sections 11 and 12.
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(2) Notwithstanding anything contained in sections 3, 4 and 5, no
hardcore convicted prisoner shall be entitled to be released on emergency
parole or regular parole or furlough:
Provided that a hardcore convicted prisoner may be granted custody
parole for attending funeral of his family members or marriage of his
children or siblings.
(3) Notwithstanding anything contained in sub-section (1), a hardcore
convicted prisoner, who has not been awarded death penalty or life
imprisonment till natural life and has completed five years of his sentence
(including maximum two years under trial period), without committing
any major jail offence or any cognizable offence during the last five
years, shall be entitled for emergency parole or regular parole or furlough
at par with convicted prisoners. Such period of five years shall be
counted from the date of his latest offence or act which falls under the
category of hardcore convicted prisoner:
Provided that a hardcore convicted prisoner who has been sentenced for
imprisonment till natural life shall be eligible for emergency parole or
regular parole at par with convicted prisoners only after completion of
seven years of imprisonment after conviction:
Provided further that if the hardcore convicted prisoner so released
temporarily violates any condition of parole or furlough or commits any
cognizable offence, he shall be debarred from such release for next three
years.
(4) Convicted prisoner including hardcore convicted prisoner may be
granted custody parole without taking into account his period of
completion of sentence for attending funeral of his family member or
marriage of his children or siblings.
(5) The competent authority shall verify the facts for granting custody
parole through in-charge of the police station where the prisoner wants to
avail the custody parole or through a jail officer not below the rank of
Assistant Superintendent Jail.
(6) Custody parole shall not be granted for more than six hours for one
event excluding the journey time and the police escort guard for the
custody parole shall be provided by the Superintendent of Police or the
Deputy Commissioner of Police of the district within whose jurisdiction the
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jail is situated. The period of custody parole shall be treated as period
spent in jail."
12. The aforesaid provision clearly lays down that no hardcore
convicted prisoner shall be entitled to be released on emergency parole or
regular parole, although custody parole may be allowed in certain
circumstances. Sub Section (3) of Section 6 of the Act further makes it clear
that a hardcore convicted prisoner, not awarded death penalty or life
imprisonment till natural life, and who has completed five years of his
sentence, without committing any major jail offence or any cognizable
offence during the last five years, shall be entitled for emergency parole or
regular parole or furlough at par with convicted prisoners and that period of
five years shall be counted from the date of his latest offence or act, which
falls under the category of hardcore convicted prisoner.
13. Section 2(1)(g) of the Act provides various situations, when a
prisoner will fall under the category of 'hardcore convicted prisoner'.
Relevant part of the said section reads as under: -
"2 (1) (g) "hardcore convicted prisoner means any prisoner -
(i) to (v) xxxxxxxxxx [not relevant]
(vi) who commits a cognizable offence punishable with imprisonment
for a period of seven years or above during confinement in the jail
or during his temporary release under this Act; or"
14. In the present case, as per the reply filed by the respondent-
State, when the petitioner was on special parole, he committed offence, for
which he was booked in case FIR No.213 dated 17.07.2020 under Sections
341, 364A, 34 IPC & 25/54/59 of the Arms Act registered at PS Rai,
Sonipat, in which he is presently facing trial in the Court of ld. Sessions
Judge, Sonipat. Not only this, during parole period, petitioner also
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committed offence, for which he was booked in case FIR No.304 of 2020
under Sections 25/54/59 of the Arms Act, registered at Police Station
Ganaur, Sonipat, in which he is facing trial in the Court of ld. Sub
Divisional Judicial Magistrate, Ganaur, Sonipat. Petitioner committed yet
another offence under Sections 392, 120B and 482 IPC (i.e., a cognizable
offence, punishable up to 10 years imprisonment) during the parole period
for which he was booked in case FIR No.373 dated 10.08.2021 registered at
Police Station Dankaur, Gautam Budh Nagar, in which he is facing trial in
the court of ld. ACJM, Gautam Budh Nagar.
15. Thus, the last offence committed during the parole period is on
10.08.2021 and so, as per Section 6 (3) of the Act, the application for
regular parole of the petitioner can be considered after the period of five
years is over from the date of the said latest offence, which falls the in the
category of 'hardcore convicted person'.
16. The contention of ld. Counsel is that petitioner is only accused
of committing the offences during the parole period and that he has not
been convicted in those cases and therefore, he does not fall in the category
of 'hardcore convicted prisoner'.
17. I am afraid that the above contention is devoid of any merits.
The words used in Section 2(1)(g)(vi) of the Act are that 'who commits a
cognizable offence'; and not 'who is convicted of committing a cognizable
offence'. It is important to notice that in Section 2(1)(g)(viii) of the Act,
words used are 'who has been detained or convicted under National
Security Act, 1980, Terrorist and Disruptive Activities (prevention) Act,
1987, the Official Secrets Act, 1923, the Foreigners Act, 1946 or any Act
(Central or State) for control of organised crime.
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18. Thus, for a prisoner who fall in the category of 'hardcore
criminal' prescribed under Section 2(1)(g)(viii) of the Act, a prisoner
should have been detained or convicted under any of the Acts mentioned
therein, but for a prisoner, who fall in the category of 'hardcore criminal'
under Section 2(1)(g)(vi) of the Act, it is sufficient that he is alleged to have
committed a cognizable offence punishable with imprisonment for a period
of 7 years or above, during his conviction in jail or during his temporary
release under the Act. The very object of declining the parole for a certain
period to a hardcore criminal shall be defeated, if the interpretation as
suggested by ld. counsel for the petitioner, is accepted. If that interpretation
is accepted, it would mean that a prisoner released on temporary parole,
may commit any offence of whatever nature and will not fall in the category
of hardcore criminal, till his conviction is recorded for that offence
committed during parole period. This could not be the legislative intent.
19. On account of the entire discussion as above, it is held that no
fault can be found with the impugned order (Annexure P1) passed by the
Superintendent Jail, Nuh. It is further held that having regard to the criminal
antecedents of the petitioner as per the details given in the reply filed by the
State, which has also been reproduced above, this Court is not inclined to
issue any writ for releasing the petitioner on parole.
Consequently, the present petition is hereby dismissed.
(DEEPAK GUPTA)
JUDGE
06.11.2023
Vivek
1. Whether speaking/reasoned? Yes
2. Whether reportable? Yes/No
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