IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 981 of 2010 Judgment reserved on: 03.06.2010 Date of decision: 17.06.2010 ________________________________________________________________ Anil Kumar .....Petitioner. Versus The State of H.P. and others. .....Respondents. Coram The Hon'ble Mr. Justice Kurian Joseph, C.J. The Hon'ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 Yes. ____________________________________________________________ For the petitioner: Mr. Jagdish Thakur, Advocate. For respondents No. 1 & 2: Mr. R.K. Bawa, Advocate General with Mr. J.K. Verma, Deputy Advocate General. For respondents No. 3: Mr. J.R. Thakur, Advocate. ____________________________________________________________ Justice V.K. Sharma, J. The petitioner alongwith two other persons, namely Gurbinder Singh and Sanjay Rana was tried by the learned Sessions Judge, Sirmour District at Nahan for the offences under Sections 302, 392, 376(2) (g), 506 read with Section 34 of the Indian Penal Code and Section 25 of the Arms Act. However, one of them, that is, Gurbinder Singh fled from justice and was accordingly declared as a proclaimed offender. Consequently, the trial against the petitioner and the co-accused, Sanjay Rana proceeded further culminating into their conviction. Resultantly, they were 1 Whether reporters of Local Papers may be allowed to see the judgment? :-2-: sentenced to suffer imprisonment for life. 2. It shall be pertinent to observe at this stage that while being lodged in the jail, the aforesaid co-accused of the petitioner, Sanjay Rana, was granted parole, which he jumped over and did not surrender till date. Thus he is a fugitive. 3. The petitioner, who is lodged in Model Central Jail, Nahan applied for grant of parole in the month of December, 2009, on the ground that his mother is suffering with serious ailment and is undergoing treatment from P.G.I. Chandigarh. His brother is settled at Paonta Sahib in Himachal Pradesh. There is none in the family to look after his aged parents. The ancestral house of the petitioner situate in his native village is in dilapidated condition and the same requires immediate repairs. Thus, precisely the petitioner prayed for grant of parole to enable him to carry out the repairs of his house. 4. The relevant record was produced by respondents No. 1 & 2 for perusal of this court. On going through the same it is manifest that the Superintendent, Model Central Jail, Nahan had recommended the prayer of the petitioner for being sent on parole besides testifying that during incarceration his conduct has been found to be satisfactory, but the same came to be turned down by respondents No. 1 & 2 taking into consideration the report submitted by respondents No. 3 & 4 stating that since the aforesaid two co-accused of the petitioner have already fled from justice, the one, Gurbinder Singh at the initial stage during trial and was declared a proclaimed offender, the other, Sanjay Rana, jumped :-3-: over parole granted to him, as noticed hereinabove. 5. Against the above backdrop, the petitioner is seeking the following reliefs, inter alia vide para 12(i) and (ii)of the petition: “(i) A writ in the nature of certiorari may very kindly be issued thereby quashing and setting aside the impugned recommendations made by respondent No. 3 and also the rejection order passed by respondent No. 2 passed on the parole application of the petitioner. (ii) A writ in the nature of mandamus may kindly be issued thereby directing the respondents, more particularly respondent No. 2 to consider the application of the petitioner and release him on parole in terms of the Act and Rules referred to above. 6. Whereas, respondents No. 1 and 2 have filed a joint reply, a separate reply has been filed by respondent No. 3, wherein the grounds for declining the prayer of the petitioner for grant of parole, as noticed hereinabove have been reiterated. 7. We have heard the learned counsel for the petitioner and the learned Additional Advocate General for the respondents and have perused the record. 8. In para 9 of the petition it is averred that “that the petitioner being law abiding citizen is undergoing sentence in the Model Central Jail, Nahan from the date of his arrest till date and as such the petitioner cannot be allowed to suffer for the acts of omission and commission of other persons.” Though it is not specifically stated that since when the petitioner is lodged in jail :-4-: during trial and after conviction, yet it is held out by the learned counsel for the petitioner at the bar that the period in this regard is of about three years. 9. The matter with regard to grant of parole to a convict falls within the ambit of Section 3 of the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968, which reads 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 :-5-: (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 to (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.” 10. Apparently, the case of the petitioner for grant of parole falls within the ambit of sub-section (1) (d) of Section 3 of the Act, ibid. 11. Taking into consideration the facts and circumstances of the case and on an overall view of the matter, three things are apparent on the face of record. Firstly, that the Superintendent, Model Central Jail, Nahan, has testified that while undergoing sentence in the jail, the conduct of the petitioner has been found to be satisfactory. Secondly, he had recommended the case of the petitioner for grant of parole. And lastly, the prayer of the petitioner for grant of parole has been declined by respondents No. 1 and 2 pursuant to the objection raised by respondents No. 3 and 4 that since his two co-accused/convict, as aforesaid, have already fled from justice, in case he is released on parole, there is every likelihood that he may also not surrender at the end of the parole period and flee from justice. 12. In view of the above, we are of the considered view that the fact that two of the co-accused of the petitioner have already fled from justice cannot be made the sole ground for rejection of his prayer for grant of parole and more particularly :-6-: when there is no allegation that he was instrumental in the aforesaid unlawful acts of his co-accused/convict. Furthermore, the Superintendent Jail while recommending the case of the petitioner for grant of parole has testified that while undergoing sentence in the jail his conduct has been found to be satisfactory. 13. Against the above backdrop, we are inclined to grant the prayer of the petitioner in the following terms: The respondents, particularly respondent No. 2, are directed to re-consider the application of the petitioner for grant of parole in terms of the provisions of the Act, supra and the rules framed thereunder and take final decision in the matter within a period of one month from today. 14. While parting, it may also be observed that the feasibility of granting parole in favour of the petitioner may be for a shorter period of 2/3 weeks under police escort, subject to the rider that expenses in this regard shall be borne by him, may also be explored. 15. In the result the petition succeeds and is accordingly allowed in the above terms. With disposal of the main petition, pending application(s), if any, shall also stand disposed as infructuous. (Justice Kurian Joseph) Chief Justice (Justice V.K. Sharma) Judge 17th June, 2010 (virender)