CWP/10039/2023 on 29 December 2023

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP No. 10039/2023 Decided on : 29.12.2023

Kalyan Singh

…..Petitioner

Versus

State of H.P. & ors.

….Respondents

Coram:

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon’ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1No

For the Petitioner: Mr. Anil Kumar Manget, Advocate.

For the Respondents: Mr. I. N. Mehta, Mr. Y.W. Chauhan, Sr. Addl. A.Gs with Mr. Navlesh Verma & Ms. Sharmila Patial, Addl. A.Gs.

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Justice Tarlok Singh Chauhan, Judge

A request made by the petitioner for his release on parole on medical grounds has been turned down by the respondents constraining him to file the instant petition.

It is not in dispute that the petitioner has been convicted for offences under Sections 302, 392, 328, 471 read with Section 34 of the Indian Penal Code (for short, IPC) and has been sentenced to undergo life imprisonment and to pay a

Whether reporters of the local papers may be allowed to see the judgment? Yes.

fine of Rs.50,000/- with default sentence. The petitioner has completed substantive/actual sentence of 11 years 11 months and 10 days as on 22.12.2023 excluding remission/parole period and conduct of the prisoner inside jail has been reported to be satisfactory by the concerned Superintendent Jail.

The petitioner had earlier applied for temporary release on parole on seventeen occasions and on each occasion, his request was rejected by the competent authority due to adverse report of the concerned District Authorities. However on two occasions, the petitioner was ordered to be released on parole - firstly, for two days on account of marriage of his daughter under proper police escort and thereafter for fourteen days w.e.f. 21.5.2023 to 3.6.2023.

The petitioner had again applied for temporary release on parole on 3.7.2023 i.e. immediately after his earlier parole had come to an end and this time request of parole was on medical grounds.

Request of the petitioner was forwarded by the Superintendent Jail to the concerned District Authorities i.e. District Magistrate/Superintendent of Police, District Sirmour at Nahan for their recommendations/verifications reports as required under the provisions of H.P. Good Conduct Prisoners

(Temporary Release) Act, 1968, (for short, “the Act”). However, the parole case of the petitioner, after conducting necessary enquiry, has not been recommended by the District Magistrate firstly on the ground that as per report the District authorities, the petitioner’s wife Nago Devi has stated that her husband is suffering from heart problem, for which treatment has been advised at Govt. Hospital Nahan and she wants to get him treated at IGMC Medical College & Hospital, Shimla, but she could not produce any such document in support of her husband’s disease to the police. Further the police report indicates that the petitioner has criminal record with around 30 cases registered against him including theft, murder, attempt to murder, robbery, dacoity etc. The report also suggests that if the petitioner is released temporarily, he may jump the parole, hence parole case of the petitioner was rejected by the competent authority.

It is vehemently argued by the learned counsel for the petitioner that even a convict is entitled to parole to maintain family and social ties and also take care of his health and to get best medical facilities and that even the Hon’ble Supreme Court in Asfaq vs. State of Rajasthan (2017) 15 SCC 55 has recognized reformation as one of the objectives

behind sentence and punishment, which 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 and another objective, which this theory underlines is that even such convicts have right to breathe fresh air, albeit for short 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 are ultimately aimed for the good of the society and, therefore, are in public interest.

Strong reliance in support of such contention is placed on the judgment in Asfaq’s case (supra), more particularly, paras 17 and 18 thereof, which read as under:-

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 recognise 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, al beit 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 are ultimately aimed for the good of the 2 (2000) 3 SCC 394 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 prison 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.

On the other hand, learned Additional Advocate General has vehemently opposed the prayer made by the petitioner on the ground that since the petitioner is a hardcore criminal having about 30 cases against him that too of extremely serious nature like theft, murder, attempt to murder, robbery, dacoity etc., his release on parole is likely to endanger the security of the State and even the maintenance of public order.

We have heard the learned counsel for the parties and have also gone through the material placed on record.

At the outset, it shall be necessary to refer to relevant provisions of the Act, as contained in Sections 3, 6 and 10, which read 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 (b) the marriage of the prisoner's son or daughter is to be celebrated ; or

(c) 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- 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.

10. Power to make rules.- (1) The Government may, by notification, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for - (a) the execution by the prisoner (including his sureties) of bond for his good behaviour during the release period and for his surrender on the expiry of such period;

(b) the amount for which and the form and manner in which such bonds shall be furnished;

(c) the forfeiture of the amount of bond in case of breach of any of its terms; (d) the conditions on which and the manner in which prisoners may be released temporarily under this Act; (e) the manner in which the District Magistrate shall be consulted before a prisoner is released; and (f) the extent to which and the manner in which journey expenses of poor prisoners shall be borne by the Government.

(3) All rules under this section shall, as soon as may be after they are made, be laid before the Legislative Assembly.”

Section of the Act empowers the State Government, or any officer duly authorized by it in that behalf, in consultation with the District Magistrate, to temporarily release for a specified period any prisoner, if the government is satisfied about the existence of the grounds mentioned in the said section.

Section 10 of the Act confers upon the Government the power to frame rules for carrying out the purposes of the Act and it specifically provides for the enactment of rules prescribing the condition on which and the manner in which prisoner can be released temporarily under the Act.

In exercise of powers conferred by Section 10 of the Act, the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Rules, 1969 have been duly enacted.

Sub-rule (2) of Rule 3 of the said rules requires the Superintendent of Jail to forward the application of the prisoner for temporary release with his report to the District Magistrate of the District to which the prisoner belongs. The District Magistrate, after consulting the Superintendent of Police of his District, is required to forward the case with his recommendations to the Inspector General of Prisons. The Inspector General of Prisons is then required to record his views on the case whether the prisoner is to be released or not and submit the same to the releasing authority, that is, the Government or the authority to whom the powers are delegated, for orders. The District Magistrate, before making any recommendation, is under a statutory duty to verify the facts and grounds on which release has been requested and to give an opinion "whether the temporary release on parole or furlough is opposed on grounds of prisoner's presence being dangerous to the security of State or prejudicial to the maintenance of public order".

The provisions of section 6 and sub-rule (2) of rule 3 make it abundantly clear that no prisoner would be entitled to be released on parole or furlough if the competent authority is satisfied that such release is likely to endanger the "security of State" or the maintenance of "public order".

Adverting to the facts of the instant case, learned counsel for the petitioner is not in a position to dispute that apart from conviction and sentence now being undergone by the petitioner, he is accused in 30 cases, which are grave in nature, including cases relating to theft, murder, attempt to murder, robbery, dacoity etc. which not only goes a long way, but establishes beyond all reasonable doubts that the petitioner is a hardcore prisoner or, as is normally termed, “habitual offender” and it is on account of tendency to commit crime again and again that he is facing 30 cases.

It is more than settled that public purpose in granting parole or furlough is ingrained in the reformation theory of sentencing, as referred to in paras 17 and 18 in Asfaq’s case and the Court is also required to keep in mind other competing public interest and only then take a call 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 other objectives of sentencing, namely, deterrence and prevention.

In coming to such conclusion, we are duly supported by the observations of the Hon’ble Supreme Court in Asfaq’s case (supra) in para 19 thereof, which reads as under:-

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 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.

Apart from above, the petitioner cannot be released even on health grounds as there is nothing on record placed by the petitioner or for that matter before the concerned District Authorities to indicate that the petitioner is not being provided with adequate medical facilities in the jail where he is lodged.

In view of aforesaid discussions and for the reasons stated hereinabove, we find no merit in the instant petition and the same is accordingly dismissed, so also the pending application(s), if any.

(Tarlok Singh Chauhan)

Judge

(Satyen Vaidya) 29.12.2023

Judge (pankaj)