Crl.Misc.No.M-6947 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.M-6947 of 2010 DATE OF DECISION: MARCH 31, 2010 Sandeep .....PETITIONER Versus The State of Haryana and another ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JORA SINGH --- Present: Mr. H.P.S. Aulakh, Advocate, for the petitioner. Mr. Satbir Singh Goripuria, DAG, Haryana, for the respondents. .. SATISH KUMAR MITTAL, J. The petitioner, who is a life convict and undergoing the imprisonment in District Jail, Karnal, has filed the instant petition for quashing the order dated 1.6.2009 passed by the Commissioner, Rohtak Division, Rohtak, whereby his prayer for releasing him on furlough under Section 4 of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (hereinafter referred to as `the Act'), to meet his family members, has been rejected on the ground that if the petitioner is released on furlough, there may be tension and breach of peace in the village. It has been further prayed that a direction be issued to the respondents to release the petitioner on furlough for three weeks as the respondent authorities have rejected his Crl.Misc.No.M-6947 of 2010 -2- prayer arbitrarily, without following the provisions of the Act and the Rules framed thereunder. Pursuant to notice, a written statement has been filed on behalf of respondents No.1 and 2 along with Annexures R-1/T and R-2/T. The same are taken on record. In the written statement filed by the respondents, it has been averred that the prisoner cannot claim furlough as a matter of right as it is only a concession given to him for good conduct on certain conditions provided under the Act. It has been further averred that the petitioner, who is a hardcore criminal, has been involved in several cases of murder, attempt to murder, quarrelling and Arms Act etc., as detailed in para No.3 of the written statement. Besides those cases and the instant case, he has been also convicted and sentenced u/s 307/34 IPC & 25 of the Arms Act to undergo RI for seven years in case FIR No.327 dated 23.11.2004 registered at P.S. City, Sonepat; u/s 411 IPC & 25 of the Arms Act to undergo RI for one year and six months in case FIR No.326 dated 4.12.2004 registered at P.S. Sadar Bahadurgarh; u/s 386/34 IPC imprisonment, to which he had already undergone in case FIR No.144 dated 22.6.2002 registered at P.S. Civil Lines, Sonepat. Learned counsel for the respondents submits that though in the instant case the petitioner has completed sentence for a period of three years, and has not committed any jail offence during the said period, but, while referring to the aforesaid number of cases registered against the petitioner in which he has been convicted and sentenced, and the provisions of clause (3) of Section 2 of Punjab Habitual Offenders (Control and Reform) Act, 1952 (hereinafter referred to as `the 1952 Act'), he has argued Crl.Misc.No.M-6947 of 2010 -3- that the petitioner is not entitled for the grant of furlough. In this case, the petitioner was convicted under Section 302 read with Section 34 IPC and sentenced to undergo life imprisonment in case FIR No.162 dated 7.10.2004, registered at P.S. Sadar, Sonepat, by Additional Sessions Judge, Sonepat, vide judgment dated 6.9.2006. It is the case of the petitioner that after passing of the said judgment, the petitioner became eligible to exercise his right of furlough guaranteed under Section 4 of the Act, as he has not committed any jail offence during the period he remained in jail. It has been alleged that on an earlier occasion also, the petitioner had availed the benefit of temporary release on parole granted by the respondent authority and during the said period the petitioner did not commit any offence and surrendered to the jail authorities in time, peacefully. Learned counsel for the petitioner further argued that the respondents have rejected the prayer of the petitioner for releasing him on furlough to meet his family members only on the ground that in case the petitioner is released on furlough, there may be tension and breach of peace in the village. Learned counsel contends that on such flimsy ground, the petitioner has been arbitrarily denied the fundamental right of furlough, without any basis and substance. Learned counsel argued that apart from the aforesaid ground, there is no other ground with the respondents to deny the benefit of furlough to him. After hearing the learned counsel for the parties and going through the written statement filed by the respondents, we do not find any illegality or infirmity in the impugned order passed by the respondents. Section 4 of the Act deals with temporary release of prisoners on furlough, Crl.Misc.No.M-6947 of 2010 -4- which reads as under:- “4. Temporary release of prisoners on furlough.-(1) The State Government or any other officer authorized by it in this behalf may, in consultation with such other officer as may be appointed by the State Government, by notification, and subject to such conditions and in such manner as may be prescribed, release temporarily, on furlough, any prisoner who has been sentenced to a term of imprisonment of not less than four years and who - (a) has, immediately before the date of his temporary release, undergone continuous imprisonment for a period of three years, inclusive of the pre-sentence detention, if any; (b) has not during such period committed any jail offence (except an offence punished by a warning) and has earned at least three annual good conduct remissions: Provided that nothing herein shall apply to a prisoner who- (i)is a habitual offender as defined in sub-section (3) of section 2 of Punjab Habitual Offenders (Control and Reform) Act, 1952; or (ii)has been convicted of dacoity or such other offence as the State Government may, by notification, specify. (2) The period of furlough for which a prisoner is eligible under sub-section (1) shall be three weeks during the first year of his release and two weeks during each successive year thereafter. (3) Subject to the provisions of clause (d) of sub-section (3) of section 8 the period of release referred to in sub- section (1) shall count towards the total period of the sentence undergone by a prisoner.” According to the aforesaid provisions, a convict, who has been sentenced to a term of imprisonment of not less than four years, can be Crl.Misc.No.M-6947 of 2010 -5- released on furlough for a period of three weeks, who, immediately before his temporary release, has undergone continuous imprisonment for a period of three years and who during the said period has not committed any jail offence and has earned at least three annual good conduct remissions. Proviso to this Section further provides that nothing contained in the aforesaid provision shall apply to a prisoner who is a habitual offender as defined in sub-section (3) of Section 2 of the 1952 Act or who has been convicted for the offence of dacoity or such other offence as the State Government may, by notification, specify. Clause (3) of Section 2 of the 1952 Act reads as under:- “(3) “Habitual Offender” means a person - (a) who, during any continuous period of five years, whether before or after the commencement of this Act, has been convicted and sentenced to imprisonment more than twice on account of any one or more of the offences mentioned in the Schedule to this Act committed on different occasions and not constituting parts of the same transaction; and (b) who has, as a result of such convictions suffered imprisonments at least for a total period of twelve months. Explanation.-(1) A conviction which has been set aside in appeal or revision and any imprisonment suffered in connection therewith shall not be taken into account for the above purpose. Explanation.-(2) In computing the period of five years, and periods spent in jail either under a sentence of imprisonment or under detention shall not be taken into account.” In the instant case, though the petitioner, who is a life convict, Crl.Misc.No.M-6947 of 2010 -6- has completed more than three years of imprisonment and has also not committed any jail offence during the said period, but according to the written statement, he is a habitual offender and has been involved in several cases of murder, attempt to murder, quarrelling and Arms Act etc. Therefore, the petitioner is not entitled to be released on furlough. A prisoner cannot claim furlough as a matter of right as it is only a concession given to him. In our opinion, the respondents have rightly rejected the claim of the petitioner for releasing him on furlough, as he, being a habitual offender, has been involved in several criminal cases. In view of the above, we do not find any merit in the petition and the same is hereby dismissed. (SATISH KUMAR MITTAL) JUDGE March 31, 2010 ( JORA SINGH ) vkg JUDGE