Crl. Writ Petition No.2019 of 2011 (O & M) ::1:: IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl. Writ Petition No.2019 of 2011 (O & M) Date of decision: 31.10.2011 Gurpreet Singh .. Petitioner Versus State of Punjab and another .. Respondents CORAM: Hon'ble Mr. Justice S.S. Saron. Hon'ble Mr. Justice Rameshwar Singh Malik. Present:- Ms.Bhupinder Kaur, Advocate, for the petitioner. Mr.S.S. Bhinder, Sr.DAG, Punjab. * * * * S.S. SARON, J. Reply by way of affidavit of Sh. L.S. Jakhar, Superintendent, Central Jail, Patiala, on behalf of respondents No.1 and 2 filed in Court today, is taken on record. Heard counsel for the parties. The petitioner-Gurpreet Singh has been convicted by the learned Sessions Judge, Roopnagar on 08.09.2011 for commission of offences punishable under Section 302 of the Indian Penal Code ('IPC' for short) and Section 27 of the Arms Act, 1959. By a separate order passed on 10.09.2011, the petitioner has been sentenced to undergo imprisonment for life for commission of an offence punishable under Section 302; besides, pay a fine of Crl. Writ Petition No.2019 of 2011 (O & M) ::2:: Rs.5000/- and in default of payment of fine, to undergo further rigorous imprisonment of one year. He has also been convicted for seven years for the commission of an offence punishable under Section 27 of the Arms Act; besides, to pay a fine of Rs.2000/- and in default of payment of fine to undergo rigorous imprisonment for six months. Against the said orders of conviction and sentence, the petitioner has filed Criminal Appeal No.908-DB of 2011 which was admitted by this Court on 30.09.2011. The present petition has been filed by the petitioner for grant of emergency parole for four weeks as the mother of the petitioner namely Smt. Charanjeet Kaur is unwell and is under treatment at PGI, Chandigarh and she has been advised to undergo an operation immediately. The father of the petitioner, it is stated, has expired. Learned counsel for the petitioner has referred to the application (Annexure P-1) submitted by the petitioner on 27.09.2011 for his release on parole so that he can get the operation of his mother done from PGI, Chandigarh. A reference has also been made to the OPD Card (Annexure P-2) issued by PGI, Chandigarh whereby an immediate operation has been been advised and cardiac blocked for 10 days is recorded which is stated to be 90%. In the history of the patient, it is mentioned that the father of the patient was patient of cardiac blockage and the husband is also patient of cardiac blockage. It is submitted that the patient i.e. the mother of the petitioner be admitted on 01.10.2011. Crl. Writ Petition No.2019 of 2011 (O & M) ::3:: In terms of the reply that has been filed it is stated that the application (Annexure P-1) that has been filed by the petitioner for grant of emergency parole cannot be processed in view of the proviso to sub-rule (2) of rule 3 of the Punjab Good Conduct Prisoners (Temporary Release) Rules, 1963 ('Rules' for short). The said proviso envisages that no application for parole shall be processed by the Superintendent of Jail unless the prisoner had maintained good conduct after his conviction at least for four months in jail. Therefore, it is submitted that the petitioner has been convicted on 08.09.2011 and thereafter sentenced on 10.09.2011 and a period of four months after conviction has not lapsed. Besides, it is stated that the report regarding the condition of health of the mother of the petitioner was sought on telephone from SHO, Police Station City Ropar and he reported that the mother of the petitioner is not admitted in PGI, Chandigarh and, in fact, she is at her home and in sound health. Therefore, there is no need to release the petitioner on parole. We have given our thoughtful consideration to the contentions raised by learned counsel for the parties. The provisions of Section 3(1)(a) of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 ('Act' for short) provides for temporary release of prisoners on certain grounds. Section 3(1)(a) of the Act reads as under:- 3. Temporary release of prisoners on certain grounds:-- (1) The State Government may, in consultation Crl. Writ Petition No.2019 of 2011 (O & M) ::4:: 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 State Government is satisfied that:- (a) “a member of the prisoner's family had died or is seriously ill” The above provisions provides for temporary release of prisoners for a period specified in sub-section (2) if the State Government is satisfied that a member of the prisoner's family had died or is seriously ill. In terms of sub-section (2) in case a prisoner is to be released on the ground specified in Clause (a) of Section 3 (1), the period of release is not to exceed two weeks. The mother of the petitioner (prisoner) has been advised an operation on account of her cardiac blockage. The petitioner applied for grant of emergency parole vide application dated 27.09.2011 (Annexure P-1). The outdoor patient card (Annexure P-2) of his mother was also enclosed for perusal. However, temporary release on parole has been declined to the petitioner in view of the proviso to sub-rule (2) of rule 3 of the Rules. Rule 3 of the Rules provides the procedure for temporary release and it envisages the procedure to be followed and the application form to be filled in by a prisoner for temporary release as also the steps to be taken by Superintendent of Jail for forwarding the application. The proviso to sub-rule (2) of rule 3 of the Rules was inserted by a notification dated 23.09.2003 and it envisages that no such application shall be processed by the Superintendent of Jail, Crl. Writ Petition No.2019 of 2011 (O & M) ::5:: unless the prisoner has maintained good conduct after his conviction at least for four months in jail. The provision of rule 3 of the Rules are procedural provisions, which are directory and not mandatory. The provisions of Section 3(1)(a) of the Act, however, are substantive provisions which would prevail over the procedural provisions of the Rules. The petitioner, as already noticed, has been convicted and sentenced by the learned Sessions Judge, Roopnagar vide order dated 08/10.09.2011. Against the order of his conviction and sentence, the petitioner has filed Criminal Appeal No.908-DB of 2010. A perusal of the order dated 08.09.2011 passed by the learned Sessions Judge, Roopnagar shows that the petitioner- Gurpreet Singh was in custody during trial while sentencing him to imprisonment vide order dated 10.09.2011, the sentences that were imposed were ordered to run concurrently. The object of Section 3 of the Act is to provide for temporary release to prisoners in case of certain eventualities which are that (a) a member of the prisoner's family had 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 or any other land cultivated by him and no friend of the prisoner or member of the prisoner's family is prepared to help him in this behalf in his absence; (d) it is desirable for any other sufficient cause. Therefore, an illness of a family member of a prisoner would warrant temporary release of the prisoner so as to enable the prisoner to provide for his treatment. Crl. Writ Petition No.2019 of 2011 (O & M) ::6:: In the reply, that has been filed, it is stated that the mother of the petitioner is not admitted in the PGI, Chandigarh and that she is at her home and in sound health. In fact, it is not the case of the petitioner that his mother was admitted in PGI, Chandigarh. It is only that an operation has been advised and she was asked to be admitted on 01.10.2011. The OPD Card (Annexure P-2) was attached with the application (Annexure P-1) for seeking temporary parole. The Superintendent of Central Jail, Patiala has not taken into consideration the said application (Annexure P-1) and the OPD Card (Annexure P-2). Rather, it is stated, that report regarding ill-health of the petitioner's mother was sought telephonically from the SHO, Police Station City Ropar and he reported that the mother of the petitioner was not admitted in the PGI, Chandigarh and in fact, she is at her home and in sound health. The said report based on telephonic instructions without taking into consideration the application (Annexure P-1) and the OPD Card (Annexure P-2) is hardly of any consequence. The relevant material i.e. the application (Annexure P-1) and the OPD Card (Annexure P-2) submitted by the petitioner have indeed not been taken into consideration. We are even otherwise of the view that the proviso added to sub-rule (2) of rule 3 of the Rules would not supersede the substantive provisions of the Act specially in a case where the release of the petitioner is sought immediately so as to enable him to arrange for the treatment for his mother. In case of death or serious illness in the family of the prisoner would warrant immediate release and a waiting period of four months after conviction would in some Crl. Writ Petition No.2019 of 2011 (O & M) ::7:: cases, as in the present case, defeat the legislative intent and mandate, which is not to be circumvented by procedural rules. Accordingly, the writ petition is disposed of with a direction to the respondents to consider and dispose of the application dated 27.09.2011 (Annexure P-1) of the petitioner de hors the proviso to sub-rule (2) of rule (3) of the Rules. The necessary exercise be carried out within a week from the date of receipt of copy of this order. (S.S. SARON) JUDGE (RAMESHWAR SINGH MALIK) JUDGE October 31, 2011 sukhpreet Crl. Writ Petition No.2019 of 2011 (O & M) ::8::