CRWP No. 2312 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRWP No. 2312 of 2010 Date of decision: 27.1.2011 Pawan Kumar ........ Petitioner Versus State of Haryana and another ........ Respondents CORAM: HON'BLE MR.JUSTICE JORA SINGH PRESENT: Mr. Mohit Jaggi, Advocate, for the petitioner. Mr. Manish Deswal, Deputy Advocate General, Haryana. JORA SINGH, J. Pawan Kumar S/o Gian Chand, preferred this writ petition under Articles 226/227 of the Constitution of India read with Section 3 (1) of the Haryana Good Conduct of Prisoners (Temporary Release) Act, 1988, (hereinafter referred as 'the Act') with a prayer for grant of parole to the petitioner in case FIR No.49 dated 29.5.1999, registered under Sections 376 (g), 363 and 366 of the Indian Penal Code at Police Station Naggal, for agricultural purpose. It is further prayed that the order dated 2.11.2010 (Annexure P-1), passed by the Commissioner, Ambala Division, Ambala, vide which application for releasing him on parole was dismissed, be set aside. CRWP No. 2312 of 2010 -2- That in case FIR No. 49 dated 29.5.1999, registered under Sections 376 (g), 363 and 366 of the Indian Penal Code at Police Station Naggal, petitioner along with his co-accused was convicted vide judgment dated 29.10.2004, passed by the learned Additional Sessions Judge (Fast Track Court), Ambala and was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of ` 500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month under Section 376 (g) IPC. He was further sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of ` 200/- and in default of payment of fine to further undergo rigorous imprisonment for a period of 15 days under Section 366 IPC and to undergo rigorous imprisonment for a period of 3 years and to pay a fine of ` 200/- and in defualt of payment fine to further undergo rigorous imprisonment for a period of 15 days under Section 363 IPC. Against the judgment dated 29.10.2004, appeal was preferred but the same was dismissed vide judgment dated 18.5.2010, passed by this Court in CRA-S-2235-SB of 2004. SLP filed against the judgment dated 18.5.2010, was also dismissed. That the petitioner moved an application for grant of parole but the same was rejected by the Commissioner, Ambala Division, Ambala, vide order dated 2.11.2010 (Annexure P-1). In pursuance of the notice, reply was filed by the respondents in the shape of affidavit by the Superintendent, Central Jail, CRWP No. 2312 of 2010 -3- Ambala, by admitting this fact that in case FIR No. 49 dated 29.5.1999, registered under Sections 376 (g), 363 and 366 of the Indian Penal Code, petitioner was convicted and sentenced vide judgment dated 29.10.2004. Against the judgment of conviction appeal was also dismissed by this Court, vide judgment dated 18.5.2010 but as per notification dated 18.10.2007, issued by the Government under the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, parole is granted to the convicts by the Divisional Commissioner (Sanctioning Authority) after recommendation of the concerned District Magistrate. Application of the petitioner was received but the same was dismissed vide order dated 2.11.2010 (Annexure P-1), on the allegation that the convict has only 1 killa and 10 marlas of the land which is not sufficient for cultivation. I have heard learned counsel for the petitioner, learned State counsel and have carefully gone through the file. Learned counsel for the petitioner argued that petitioner was convicted and sentenced in case FIR No. 49 dated 29.5.1999, registered under Sections 376 (g), 363 and 366 of the Indian Penal Code, vide judgment dated 29.10.2004, rendered by the learned Additional Sessions Judge (Fast Track Court), Ambala, but application for grant of parole was rejected simply on the ground that land measuring 1 killa 10 marlas is not sufficient for cultivation. Learned State counsel argued that application was rightly dismissed because mother and wife of the petitioner are in the village to cultivate the land. CRWP No. 2312 of 2010 -4- Admittedly, petitioner was convicted and sentenced in case FIR No. 49 dated 29.5.1999, registered under Sections 376 (g), 363 and 366 of the Indian Penal Code, vide judgment dated 29.10.2004, rendered by the learned Additional Sessions Judge (Fast Track Court), Ambala. Against the judgment dated 29.10.2004, appeal was preferred but the same was dismissed vide judgment dated 18.5.2010, passed by this Court in CRA-S-2235-SB of 2004. SLP filed against the judgment dated 18.5.2010, was also dismissed. Application moved by the petitioner was recommended by the District Magistrate, Ambala, vide order Annexure R-1 but despite recommendation by the District Magistrate, Ambala, application was dismissed by the Commissioner, Ambala Division, Ambala, vide order dated 2.11.2010 (Annexure P-1), simply on the allegation that convict has only 1 killa and 10 marlas of the land which is not sufficient for cultivation but approach of the learned Commissioner, Ambala Division, Ambala, is not correct one. Under the Act, there is nothing that convict should own land more than 1 killa 10 marlas of the land or the convict should own land measuring 2-3 killas only then application is to be accepted. Admittedly, petitioner is owning land measuring 1 killa 10 marlas. There cannot be construction in the land measuring 1 killa 10 marlas. Land is meant for cultivation. No revenue record on the file that land is not under cultivation. While rejecting the application, the Commissioner, Ambala Division, Ambala, observed that 1 killa 10 CRWP No. 2312 of 2010 -5- marlas of land is not sufficient for cultivation but no report as to how much land is sufficient for cultivation. No reason was given to discard the recommendation of the District Magistrate, Ambala. Application was dealt in routine without applying mind. Impugned order dated 2.11.2010 (Annexure P-1) passed by the Commissioner, Ambala Division, Amabala, without merits is hereby set aside. For the reasons recorded above, the instant petition is allowed and impugned order dated 2.11.2010 (Annexure P-1) is set aside with a direction to the Commissioner, Ambala Division, Ambala, to reconsider the case of the petitioner for grant of parole within one month from the date of receipt of certified copy of this order. January 27, 2011 (JORA SINGH) rishu JUDGE