Crl. Writ Petition No.2431 of 2011 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Writ Petition No.-2431 of 2011 Dated of decision:-22.11.2011 Hawa Singh .....Petitioner Versus State of Haryana and others .....Respondents CORAM: HON'BLE MR. JUSTICE S.S. SARON HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK. Present: Mr. V. S. Rana, Advocate for the petitioner. Mr. H.S. Deol, Addl. AG, Haryana. S.S. SARON, J. The wife of the petitioner filed an application (Annexure P-1) for grant of parole to the petitioner for agricultural purposes. It was submitted that the family of the petitioner was totally dependent on agriculture work. The said application for temporary release of the petitioner was recommended by the Superintendent Jail, Hisar (respondent No.4). The recommendation was sent to the District Magistrate, Fatehabad (respondent No.3). The District Magistrate (respondent No.3) also recommended the release of the petitioner on parole. The said recommendation was sent to the Competent Authority i.e. the Commissioner Hisar Division, Hisar (respondent No.2) who vide order dated 26.08.2011 (Annexure P-2) granted six weeks parole to the petitioner. The present petition has been filed for directing respondent No.3 i.e. District Magistrate, Fatehabad to accept the bail bonds and surety of the petitioner and release him temporarily from custody forthwith so as to enable him to carry out agricultural operations. Crl. Writ Petition No.2431 of 2011 - 2 - According to the petitioner, he has maintained good conduct in jail. There has been no complaint against him, while he remained in jail and even while availing parole; besides, he never misused the concession of parole that was given by the authorities and had always surrendered before the jail authorities well within time after the expiry of parole. The petitioner, it is stated, has availed about 13 paroles but has always surrendered before the jail authorities well within time. It is submitted that despite the warrant (Annexure P-2) issued for the release of the petitioner on parole, he is not being released. The District Magistrate, Fatehabad (respondent No.3) has returned the bail bonds and surety bonds furnished by the petitioner on the ground that the Model Election Code of Conduct is in force and the bail bonds and surety bonds cannot be accepted during the operation of the said code. It is submitted that though the District Magistrate, Fatehabad (respondent No.3) has been taking abundant caution not to violate the Model Code of Conduct for the guidance of the political parties and candidates issued by Election Commission of India, but there cannot be any bar to give effect to the provisions of the Haryana Good Conduct Prisioners (Temporary Release) Act, 1988 (‘Act’-for short) and to release the petitioner on parole in terms of the provisions of the Act. Notice of motion was issued in the case. Reply to the petition has been filed by the District Magistrate, Fatehabad (respondent No.3) on behalf of respondent Nos.1 to 3. It is stated that the Commissioner Hisar Division, Hisar (respondent No.2) issued warrants for the release of the petitioner granting him six weeks parole for agricultural purposes vide order dated 26.08.2011 (Annexure P- 2) with the condition that the petitioner should furnish two sureties of Rs.2,00,000/- each. The same was received in the office of District Magistrate, Fatehabad (respondent No.3) on 02.09.2011. The family members of the petitioner did not approach or appear before the District Magistrate, Fatehabad (respondent No.3) in the month of September and Crl. Writ Petition No.2431 of 2011 - 3 - October, 2011 for furnishing the bail bonds and sureties. On 01.11.2011, the Model Code of Conduct for guidance of political parties and candidates issued by the Election Commission of India had came into force due to the bye-election for the Ratia Assembly Constituency in District Fatehabad. A reference has been made to question No.49 of the Frequently Asked Questions (FAQs) as contained in the Model Code of Conduct for guidance of political parties and candidates. In view of the said Model Code of Conduct, the District Magistrate (respondent No.3) wrote a letter to the Chief Electoral Officer, Haryana on 11.11.2011 which was followed by another letter on 12.11.2011. The Chief Electoral Officer, Haryana, however, vide letter dated 13.11.2011 intimated that a detailed proposal for the grant of parole to the convict Hawa Singh (petitioner) should be sent through the Adminstrative Secretary. Accordingly, the District Magistrate, Fatehabad (respondent No.3) wrote a letter dated 16.11.2011 to the Commissioner Hisar Division, Hisar (respondent No.2) with a copy to the Chief Electoral Officer, Haryana. A request vide letter dated 18.11.2011 has also been made to the Financial Commissioner and Principal Secretary to Government of Haryana, Home Department, Chandigarh requesting for taking approval of Chief Electoral Officer, Haryana. The premission, it is stated, is still awaited. We have heard learned counsel for the parties and also gone through the pleadings. It is admitted position that Hawa Singh (petitioner) has been undergoing imprisonment for life at Central Jail, Hisar for having committed an offence punishable under Sections 302, 201 and 120-B of the Indian Penal Code. Against the judgment of his conviction and sentence, Criminal Appeal No.86-DB of 2007 is pending in this Court. During trial of the case he remained in custody and he was convicted by the learned Sessions Judge, Fatehabad vide order dated 16.12.2006 and by a separate order passed on 19.12.2006, he was sentenced to undergo imprisonment for life. Crl. Writ Petition No.2431 of 2011 - 4 - In terms of the averments made in the petition, it is stated that the petitioner has availed about 13 paroles and each time he has surrendered before the jail authorities in time. The said averment has been admitted in the corresponding para of the reply filed by the District Magistrate, Fatehabad (respondent No.3). The reason as to why the release of the petitioner on parole is being delayed is that in case an election for any assembly or parliamentary constituency is to be held, the release of convicts on parole is to be with the consultation of the Chief Electoral Officer. A reference has been made to question No.49 of the Frequently Asked Questions (FAQs) as contained in the Model Code of Conduct for the guidance of political parties and candidates issued by the Election Commission of India. Question No.49 and its answer are as under:- “Q.49. Whether Govt. can release convicted criminals on parole after following due procedures? Ans. If the Govt. feels that the release of any convict on parole is absolutely essential for certain compelling reasons, in that case Govt. shall consult the Chief Electoral Officer before granting parole.” A perusal of the above shows that it is only if the Government feels that release of any convict on parole is absolutely essential for certain reasons, in that case the Government shall consult the Chief Electoral Officer before granting parole. The Model Code of Conduct in case an election process has started would be in the nature of guidelines for the purpose of grant of parole. For grant of parole it would not supersede the statutory provisions as contained in the Act (i.e. the Haryana Good Conduct Prisioner (Temporary Release) Act, 1988). Section 3(1)(c) of the Act reads as under:- 3(1) “ The State Government may, in consultation with the District Magistrate or any other officer appointed in this behalf, by notification in the official Gazette and subject to such conditions and in Crl. Writ Petition No.2431 of 2011 - 5 - such manner as may be prescribed, release temporarily for a period specified in Sub Section (2), any prisoner, if the State Government is satisfied that:- (a) xxxx (b) xxxx (c) the temporary release of the prisioner is necessary for ploughing, sowing or harvesting or carrying any other agricultural operation on his land or his father’s undivided land actually in possession of the prisoner. Sub-Section (2) of Section 3 provides the period for which a prisoner may be released shall be determined by the State Government so as not to exceed; in the case of release of prisoners in terms of Clause (c), six weeks. Therefore, it is statutory right of a prisoner to be considered for being released on parole in terms of the provisions of the Act and if parole is granted he is entitled to be released for the period of time for which parole is granted. The provisions of the Act are to be followed for the temporary release of a prisoner. It may be noticed that though the District Magistrate, Fatehabad wrote letters to the Chief Electoral Officer, Haryana, however, the latter returned the proposal to be submitted through the Administrative Secretary. The answer to the Frequently Asked Question No.49 is that the Government shall consult the Chief Electoral Officer before granting parole. However, the District Magistrate, Fatehabad (respondent No.3) in his reply has stated that the permission of the Chief Electoral Officer is still awaited. In fact the permission of the Chief Electoral Officer for release of a prisoner is not required and only consultation is to be made before release of a prisoner on parole. It is only required that the Government shall consult the Chief Electoral Officer. The process of consultation does not mean concurrence. In Madan Mohan Choudhary versus State of Bihar, (1999) 3 SCC 396 it was held by the Supreme Court that the word “consult” Crl. Writ Petition No.2431 of 2011 - 6 - in its ordinary meaning means “to ask advice” or “to take counsel”. Therefore, it is not as if permission of the Chief Electoral Officer is required to release a prisoner temporarily and he is to be consulted only. Besides, the Chief Electoral Officer is to attend to the consultation with promptness and not with delay so as to defeat the purpose for which temporary release is sought. Moreover, it is not as if a prisoner is to be released on parole during an election process only if his release is essential for certain compelling reasons as mentioned in answer to Question No.49 of the FAOs. In fact the release of a prisoner on parole can be denied in terms of Section 6 of the Act, if on the report of the District Magistrate, the State 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. Therefore, a sufficient safe ground has been provided for in the Act itself and if the temporary release of a prisoner is likely to endanger the security of the State or the maintenance of public order, the temporary release can be denied to a prisoner. This Court in Criminal Miscellaneous No.M-8681 of 2009 titled as ‘Pala Ram versus State of Haryana’ decided on 29.03.2009 observed that though the Deputy Commissioner in the said case had sought clarification by writing three letters but no reply had been received from the Chief Electoral Officer, Haryana. It was held that in case the petitioner is not released on parole, the object of temporary release was likely to be defeated as the petitioner therein had sought parole for agricultural purposes permissible under the provisions of the Act. Therefore, it is the provisions of the Act which are to be followed and the release on temporary parole can be witheld if during the process of election, release of the prisoner is likely to endanger the security of the State or the maintenance of public order. The answer of the Election Commission to Question No.49 is that the Government shall consult the Chief Electoral Officer before granting parole and it is not as if the Chief Crl. Writ Petition No.2431 of 2011 - 7 - Electoral Officer, Haryana has to grant permission for temporary release of a prisoner on parole. The sowing season for the Rabi crop is about to start now and it is during this time the land is to be ploughed and made suitable for sowing. Therefore, it is at this time that the presence of the petitioner is required for carrying out agriculture operations. In view of the above facts and circumstances, the criminal writ petition is allowed and the bail bonds and surety bonds when furnished by the petitioner in compliance to the order dated 29.08.2011 (Annexure P-2) shall be considered by the District Magistrate, Fatehabad (respondent No.3) in accordance with law and in case the same are in order, the same shall be accepted and the petitioner shall be released on six weeks agriculture parole. (S.S.SARON) JUDGE ( RAMESHWAR SINGH MALIK ) JUDGE 22.11.2011 A.Kaundal