Punjab-Haryana High Court
Taqdir vs State Of Haryana on 8 January, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:001440
CRM-M No.12665 of 2022 (O&M) 1 2024:PHHC:001440
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on 13.12.2023
Pronounced on : 08.01.2024
CRM-M No.12665 of 2022 (O&M)
Taqdir ...... Petitioner
versus
State of Haryana ...... Respondent
CORAM : HON'BLE MR.JUSTICE PANKAJ JAIN
***
Present :- Mr. Saurabh Dalal, Advocate
for the petitioner.
Mr. Ramesh Kumar Ambavta, AAG, Haryana.
***
PANKAJ JAIN, J.
1 Petitioner is seeking quashing of FIR No.47 dated 19.03.2022
registered at Police Station Sadar, Bahadurgarh, Jhajjar under Sections 8 & 9
of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (for
short 'the 1988 Act').
2 The petitioner was booked in FIR No.215 dated 22.06.2010
registered for offences punishable under Sections 302/307/120-B IPC at
Police Station City Bahadurgarh, District Jhajjar. He was convicted and
sentenced to imprisonment for life. While serving sentence, he was
temporarily released for 25 days on agricultural parole w.e.f. 09.12.2019 in
terms of release order passed by District Magistrate, Jhajjar dated
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09.12.2019. He was directed to surrender on or before 04.01.2020 i.e. on
expiry of 25 days agricultural parole. Petitioner approached this Court in
CRWP No.2240 of 2020 seeking extension of parole. Vide order dated
28.01.2021 the parole of the petitioner was extended till 30.08.2021. The
petition was finally dismissed on 21.02.2022. The petitioner opted not to
surrender on 30.08.2021 (i.e. when the extension granted by this Court
expired) and remained an absconder. He surrendered before Jail authorities
only on 22.02.2022.
3 On 02.03.2022, the appeal preferred by the petitioner against
order of conviction was heard. The conviction of the petitioner was set aside
and he was ordered to be acquitted. Copy of the judgment passed by
Supreme Court in Criminal Appeal No.1537 of 2018 titled as Taqdir Vs.
State of Haryana dated 02.02.2022 has been placed on record as Annexure
P-3.
4 Learned counsel for the petitioner submits that the impugned
FIR registered under Sections 8 & 9 of the 1988 Act cannot survive in view
of the fact that the petitioner now stands acquitted by the Apex Court. It has
been contended by him that the acquittal will take a retrospective effect and
thus on the day, the petitioner is alleged to have jumped the parole he was
not a convict and was not required to serve sentence. Reliance is being
placed upon observations made by Apex Court in the case of Manni Lal Vs.
Shri Parmai Lal & ors., (1971) AIR 330. He further submits that there was
a decision taken by High-Powered Committee held under the Chairmanship
of Hon'ble Judge of this Court dated 09.05.2021 which extended the parole
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of the convicts by 90 days.
5 Per contra learned State counsel submits that so far as offence
of the petitioner under Sections 8 & 9 of the 1988 Act is concerned, the
petitioner cannot hide behind order of acquittal which is a subsequent event.
The moment the petitioner jumped the parole, offence was committed. He
further submits that rather in terms of directions issued by the High-Powered
Committee of this Court exception was carved out to deny release on special
parole to the convicts who have violated the order of parole or of special
parole.
6 I have heard rival contentions of the learned counsels
representing the parties and have gone through the records of the case
carefully.
7 Facts are not much in dispute. The questions that arise for the
consideration of this Court are :-
(a) Can the petitioner take refuge under the decision of high-Powered
Committee to claim that he was not required to surrender on expiry of
extended parole; and
(b) Whether the subsequent acquittal of the petitioner in the main case for
which he was serving sentence can have an effect of erasing the
conduct of the petitioner which constitutes new offence?
8 Coming on to the first question, the relevant extract of High-
Powered Committee reads as under :-
FOR RELEASE OF CONVICTED PRISONERS
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(A). The convicts who are at present on parole should be
granted Special Parole for 90 days (as a one time measure
only).
(B). The convicts who have previously availed Special Parole,
as per the orders of High Powered Committee in the year 2020
and surrendered in time, should be granted fresh 90 days
Special Parole (as a one time measure only) on the same set of
sureties, if the sureties so consented, and without holding fresh
inquiry. Further, in case new sureties are required (in case
consent not given by the old sureties or otherwise), then, on
fresh sureties but should be without holding fresh inquiry in
order to attain expeditious release on Special Parole.
(C).The convicts who have previously availed Special Parole,
as per the orders of High Powered Committee In the year 2020
and surrendered in time and who are also facing trial in other
cases, shall be considered for release on 90 days Special
Parole (as a one time measure only) after verification by the
office of D.M. concerned, if they are on bail in those pending
case(s).
(D). The convicts who have not availed parole or special parole
till date and who have now applied for parole or will apply for
special parole, then, the District Magistrate concerned is
hereby directed to process all (pending as well as new)
application liberally and sympathetically, on urgent basis and
preferably within 07 days from, and latest within 10 days of, the
receipt of the application.
Exceptions:
The following category of convicts/prisoners, even if they
are falling in the above criteria, shall not be released on
Special Parole:-
(a) The convicts/prisoners who are foreign nationals.
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(b) The convicts who are confirmed or suspected cases of
Covid, or are kept under observation for Covid, or who
can cause infection if released, in such cases the Jail
Authorities shall follow the latest guidelines of Health
Department in this regard. However, in future they may
be considered for the benefits of Special Parole on the
basis of their medical reports.
(c) The convicts who have violated the Parole or special
parole conditions and have been re-arrested during last
six months.
Note:-
The period of release under aforesaid directions shall
not be counted towards the total period of the sentence of the
prisoner/convict. Further, the Jail Superintendent shall obtain
declaration from the convict to the effect that he/she shall not
claim counting of the period of special parole against the total
period of sentence at the time of applying for special parole
itself."
9 From the bare perusal of the aforesaid decision, it is evident that
in case the petitioner thought he was entitled for special parole in terms
thereof, he was required to surrender in time and thereafter seek
consideration for special parole in terms of decision at point (C). Rather the
petitioner by sheer dint of his conduct led to a situation where he is required
to be dealt with in accordance of the decision taken by the High Powered
Committee falling in exceptions carved out.
10 In view of above, this Court does not find that the decision
taken by the High-Powered Committee dated 09.05.2021 in any way helps
the cause of the petitioner.
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11 Resultantly, the first question is answered against the petitioner.
12 Coming on to the second question, Sections 8 & 9 of the 1988
Act need to be perused.
"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 or Prison Officer
without a warrant and shall be delivered over to the officer incharge of the
prison from which he was released 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 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
(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;
(f) reduction from higher to a lower class or grade.
9. Penalty for failure to surrender.- (1) 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 [three years but
shall not be less than two years).
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(2) An offence punishable under sub-section (1) shall be deemed to be
cognizable and non-bailable.
Explanation.- The punishment in this section is in addition to the
punishment awarded to the prisoner for the offence for which he was
convicted."
13 Learned counsel representing the petitioner is not in a position
to deny that prima-facie at this stage it cannot be said that the conduct of the
petitioner as alleged in the FIR does not constitute offence punishable under
Sections 8 & 9 of the 1988 Act. However, the consideration relates to effect
of the observations made in Manni Lal's case supra. In the said case the
question related to election of respondent No.1 Shri Parmai Lal. It was
claimed that the elected candidate i.e. Parmai Lal was disqualified under
Section 8 (2) of the Representation of the People Act 1951 as he was
convicted for offences punishable under Sections 148 and Section 304 IPC.
The last date for filing nomination was 09.01.1969. He was convicted two
days thereafter on 11.01.1969. He filed appeal against his conviction on
16.01.1969. Polling took place on 09.02.1969. Result was declared on
11.02.1969. He was declared successful candidate having secured largest
number of votes. On 30.09.1969 in appeal filed by him his conviction and
sentence was set aside. At that time election petition was pending. Election
petition was decided vide judgment dated 27.10.1969. In these
circumstances, Apex Court observed as under :-
"This argument overlooks the fact that an appellate order of acquittal,
takes effect retrospectively and the conviction and sentence are deemed to
be set aside with effect from the date they were recorded. Once an order of
acquittal has been made, it has to be held that the conviction has been
wiped out and did not exist at all. The disqualification, which existed on
the, 9th or 11th February, 1969 as a fact, was wiped out when the
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conviction recorded on 11th January, 1969 was set aside and that
acquittal took effect from that very date. It is significant that the High
Court, under section 106 (1) (a) of the Act, is to declare the election of a
returned candidate to be void if the High Court is of opinion that, on the
date of his election, a returned candidate was dot qualified, or was
disqualified, to be chosen to fill the seat under the Constitution or the Act.
It is true that the opinion has to be formed as to whether the successful
candidate was disqualified on the date of his election; but, this opinion is
to be formed by the High Court at the time of pronouncing the judgment in
the election petition. In this case, the High Court proceeded to pronounce
the judgment on 27th October, 1969. The High Court had before it the
order of acquittal which had taken effect retrospectively from 11th
January, 1969. It was, therefore, impossible for the High Court to arrive
at the opinion that on 9th or 11th February, 1969, respondent No. 1 was
disqualified. The conviction and sentence had been retrospectively wiped
out, so that the opinion required to be formed by the High Court to declare
the election void could not be formed. The situation is similar to one that
could have come into existence if Parliament itself had chosen to repeal
s. 8 (2) of the Act retrospectively with effect from 11th January, 1969.
Learned counsel conceded that, if a law had been passed repealing s. 8 (2)
of the Act and the law had been deemed to come into effect from 11th
January, 1969, he could not have possibly urged thereafter, when the point
came up before the High Court, that respondent No. 1 was disqualified on
9th or 11th February, 1969. The setting aside of the conviction and
sentence in- appeal has a similar effect of wiping out retrospectively the
disqualification. The High Court was, therefore, right in holding, that
respondent No. 1 was not disqualified and that his election was not void
on that ground."
14 In the considered opinion of this Court, the judgment in Manni
Lal's case supra is of no help to the petitioner in the present case. There the
question was with respect to disqualification which was to be ascertained
vis-à-vis last date of filing of nomination papers. On that date admittedly
respondent No.1 i.e. Parmai Lal was fully eligible and had not earned
conviction. He was convicted subsequently and the said conviction was set
aside before adjudication of Election Petition. In the present case, on the
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day the offence is alleged to have been committed by the petitioner, he was a
convict serving sentence. As per the facts he failed to surrender in time as
required under law leading to commission of offence. Thus even if it is
taken that the acquittal of the petitioner shall take retrospective effect, the
fiction created by law in favour of the petitioner cannot take an effect of
erasing the act and omission on part of the petitioner which prima-facie
constitutes offence under law.
15 Resultantly, second question as framed above in para No.7 is
also answered against the petitioner.
16 Keeping in view the aforesaid discussion, present petition
seeking quashing of FIR is hereby ordered to be dismissed.
17 Needless to say that anything observed herein shall not be
construed to be an opinion on the merits of the case.
18 Pending miscellaneous application, if any, shall also stand
disposed off.
( PANKAJ JAIN )
JUDGE
08.01.2024
Pooja sharma-I
Whether speaking/reasoned Yes
Whether Reportable : Yes
Neutral Citation No:=2024:PHHC:001440
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