Offenders who show aspiration to live as law abiding citizens should be encouraged through parole: High Court of Himachal Pradesh

 Hig h C o urt of H.P on 06 06 CIS IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CWP No. 49620 Decided on: 04.06.2021Arun Kumar …PetitionerVersus State of Himachal Pradesh and others …Respondents_____________________________________________________________Coram:Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.Hon’ble Mr. Chander Bhusan Barowalia Judge.Whether approved for reporting 1 NoFor the Petitioner : Mr. Malay Kaushal Advocate.For the Respondents: Mr. Ashok Sharma A.G. with Mr. Shiv PalManhans Addl. A.G. Mr. J. S. Guleria andMr. Bhupinder Thakur Dy. A.Gs. for therespondents State.(Through Video Conferencing).Tarlok Singh Chauhan JudgeThe request made by the petitioner for releasing himon parole has been turned down by the respondents constraining him to file the instant petition for the grant offollowing substantive reliefs: i) That this Hon’ble Court may kindly be pleased to issuethe writ of mandamus whereby the respondents moreparticularly respondent No.2 may kindly be directed torelease the petitioner on parole in consonance to theinitial application request of the petitioner.1 Whether reporters of the local papers may be allowed to see the judgment yes Hig h C o urt of H.P on 06 06 CIS 2ii) That in the alternative the Hon’ble Court may kindly bepleased to issue a writ of mandamus whereby therespondents may kindly be directed to submit theverification report afresh pertaining to the petitionerinitial first application for release on parole strictly interms of the prescribed Rules as framed under theHimachal Pradesh Good Conduct PrisonersAct 1968.2.The respondents have opposed the petition by filingreply wherein it has been submitted that the petitioner has beenconvicted for offence punishable under Section 302 IPC by thelearned Additional Sessions Judge 1 Kangra at Dharamshala H.P. on 02.12.2017 and sentenced to life imprisonment with fineof Rs.10 000 only and due to the non recommendation of the District Magistrate the parole case ofthe petitioner convict cannot be considered as therecommendation of the District Magistrate is mandatory as perthe Section 6 of the Act which specifically provides that convictis entitled to be released on parole upto the satisfaction of thecompetent authorities and that the local public and local policehave raised objection for released of the petitioner convict onparole.3.Now the moot question is whether the request forgrant of parole can be rejected only on the ground that thepetitioner has been convicted for a serious and heinous offence. Hig h C o urt of H.P on 06 06 CIS 34.It is more than settled that the grant of remission orparole is not a right vested with the prisoner. It is a privilegeavailable to the prisoner on fulfilling certain conditions. This is adiscretionary power which has to be exercised by the authoritiesconferred with such powers under the relevant rules regulations.The Court cannot exercise these powers though once thepowers are exercised the Court may hold that the exercise ofpowers is not in accordance with rules. 5.The Hon’ble Supreme Court has considered in detailthe nature object purpose and parameters for grant of parolesubject to which parole can be granted in Asfaq versus Stateof Rajasthan and others 15 SCC 55 wherein it wasobserved as under:“14. Furlough on the other hand is a brief release fromthe prison. It is conditional and is given in case of longterm imprisonment. The period of sentence spent onfurlough by the prisoners need not be undergone by himas is done in the case of parole. Furlough is granted as agood conduct remission. 15. A convict literally speaking must remain in jail forthe period of sentence or for rest of his life in case he is alife convict. It is in this context that his release from jailfor a short period has to be considered as an opportunityafforded to him not only to solve his personal and familyproblems but also to maintain his links with society.Convicts too must breathe fresh air for at least some timeprovided they maintain good conduct consistently duringincarceration and show a tendency to reform themselves Hig h C o urt of H.P on 06 06 CIS 4and become good citizens. Thus redemption andrehabilitation of such prisoners for good of societies mustreceive due weightage while they are undergoingsentence of imprisonment.16. This Court through various pronouncements has laiddown the differences between parole and furlough few ofwhich are as under:(i) Both parole and furlough are conditional release.(ii) Parole can be granted in case of short termimprisonment whereas in furlough it is granted in caseof long term imprisonment.(iii) Duration of parole extends to one month whereasin the case of furlough it extends to fourteen daysmaximum.(iv) Parole is granted by Divisional Commissioner andfurlough is granted by the Deputy Inspector General ofPrisons.(v) For parole specific reason is required whereasfurlough is meant for breaking the monotony ofimprisonment.(vi) The term of imprisonment is not included in thecomputation of the term of parole whereas it is viceversa in furlough.(vii) Parole can be granted number of times whereasthere is limitation in the case of furlough.(viii) Since furlough is not granted for any particularreason it can be denied in the interest of the society.{See State of Maharashtra and Another v. SureshPandurang Darvakar4 SCC 776 and State ofHaryana and Others v. Mohinder Singh 3 SCC394.17. From the aforesaid discussion it follows that amongstthe various grounds on which parole can be granted themost important ground which stands out is that aprisoner should be allowed to maintain family and socialties. For this purpose he has to come out for some timeso that he is able to maintain his family and social Hig h C o urt of H.P on 06 06 CIS 5contact. This reason finds justification in one of theobjectives behind sentence and punishment namely reformation of the convict. The theory of criminology which is largely accepted underlines that the mainobjectives which a State intends to achieve by punishingthe culprit are: deterrence prevention retribution andreformation. When we recognise reformation as one ofthe objectives it provides justification for letting of eventhe life convicts for short periods on parole in order toafford opportunities to such convicts not only to solvetheir personal and family problems but also to maintaintheir links with the society. Another objective which thistheory underlines is that even such convicts have right tobreathe fresh air al beit for periods. These gestures onthe part of the State along with other measures go along way for redemption and rehabilitation of suchprisoners. They are ultimately aimed for the good of thesociety and therefore are in public interest.18. The provisions of parole and furlough thus providefor a humanistic approach towards those lodged in jails.Main purpose of such provisions is to afford to them anopportunity to solve their personal and family problemsand to enable them to maintain their links with society.Even citizens of this country have a vested interest inpreparing offenders for successful re entry into society.Those who leave prison without strong networks ofsupport without employment prospects without afundamental knowledge of the communities to which theywill return and without resources stand a significantlyhigher chance of failure. When offenders revert tocriminal activity upon release they frequently do sobecause they lack hope of merging into society asaccepted citizens. Furloughs or parole can help prepareoffenders for success. Hig h C o urt of H.P on 06 06 CIS 619. Having noted the aforesaid public purpose in grantingparole or furlough ingrained in the reformation theory ofsentencing other competing public interest has also tobe kept in mind while deciding as to whether in aparticular case parole or furlough is to be granted or not.This public interest also demands that those who arehabitual offenders and may have the tendency tocommit the crime again after their release on parole orhave the tendency to become threat to the law and orderof the society should not be released on parole. Thisaspect takes care of other objectives of sentencing namely deterrence and prevention. This side of the coinis the experience that great number of crimes arecommitted by the offenders who have been put back inthe street after conviction. Therefore while deciding as towhether a particular prisoner deserves to be released onparole or not the aforesaid aspects have also to be keptin mind. To put it tersely the authorities are supposed toaddress the question as to whether the convict is such aperson who has the tendency to commit such a crime orhe is showing tendency to reform himself to become agood citizen. 20. Thus not all people in prison are appropriate for grantof furlough or parole. Obviously society must isolatethose who show patterns of preying upon victims. Yetadministrators ought to encourage those offenders whodemonstrate a commitment to reconcile with society andwhose behaviour shows that aspire to live as law abidingcitizens. Thus parole program should be used as a tool toshape such adjustments.21. To sum up in introducing penal reforms the Statethat runs the administration on behalf of the society andfor the benefit of the society at large cannot be unmindful Hig h C o urt of H.P on 06 06 CIS 7of safeguarding the legitimate rights of the citizens inregard to their security in the matters of life and liberty. Itis for this reason that in introducing such reforms theauthorities cannot be oblivious of the obligation to thesociety to render it immune from those who are prone tocriminal tendencies and have proved their susceptibilityto indulge in criminal activities by being found guiltyof having perpetrated a criminal act. One of thediscernible purposes of imposing the penalty ofimprisonment is to render the society immune from thecriminal for a specified period. It is therefore understandable that while meting out humane treatmentto the convicts care has to be taken to ensure thatkindness to the convicts does not result in cruelty to thesociety. Naturally enough the authorities would beanxious to ensure that the convict who is released onfurlough does not seize the opportunity to commitanother crime when he is at large for the time beingunder the furlough leave granted to him by way of ameasure of penal reform.22. Another vital aspect that needs to be discussed is asto whether there can be any presumption that a personwho is convicted of serious or heinous crime is to be ipsofacto treated as a hardened criminal. Hardened criminalwould be a person for whom it has become a habit or wayof life and such a person would necessarily tend tocommit crimes again and again. Obviously if a personhas committed a serious offence for which he isconvicted but at the same time it is also found that it isthe only crime he has committed he cannot becategorized as a hardened criminal. In his caseconsideration should be as to whether he is showing thesigns to reform himself and become a good citizen orthere are circumstances which would indicate that he has Hig h C o urt of H.P on 06 06 CIS 8a tendency to commit the crime again or that he wouldbe a threat to the society. Mere nature of the offencecommitted by him should not be a factor to deny theparole outrightly. Wherever a person convicted hassuffered incarceration for a long time he can be grantedtemporary parole irrespective of the nature of offence forwhich he was sentenced. We may hasten to put a riderhere viz. in those cases where a person has beenconvicted for committing a serious office the competentauthority while examining such cases can be welladvised to have stricter standards in mind while judgingtheir cases on the parameters of god conduct habitualoffender or while judging whether he could be consideredhighly dangerous or prejudicial to the public peace andtranquility etc.23. There can be no cavil in saying that a society thatbelieves in the worth of the individuals can have thequality of its belief judged at least in part by the qualityof its prisons and services and recourse made available tothe prisoners. Being in a civilized society organized withlaw and a system as such it is essential to ensure forevery citizen a reasonably dignified life. If a personcommits any crime it does not mean that by committinga crime he ceases to be a human being and that he canbe deprived of those aspects of life which constitutehuman dignity. For a prisoner all fundamental rights arean enforceable reality though restricted by the fact ofimprisonment. {See Sunil Batrav. State3 SCC 488 Maneka Gandhi v. Union of India(1978) 1 SCC 248 and Charles Sobraj v. SuperintendentCentral Jai Tihar New Delhi 4 SCC 104.24. It is also to be kept in mind that by the time anapplication for parole is moved by a prisoner he wouldhave spent some time in the jail. During this period Hig h C o urt of H.P on 06 06 CIS 9various reformatory methods must have been applied.We can take judicial note of this fact having regard tosuch reformation facilities available in modern jails. Onewould know by this time as to whether there is a habit ofrelapsing into crime in spite of having administeredcorrectional treatment. This habit known as “recidivism”reflects the fact that the correctional therapy has notbrought in the mind of the criminal. It also shows thatcriminal is hardcore who is beyond correctional therapy. Ifthe correctional therapy has not made in itself in aparticular case such a case can be rejected on theaforesaid ground i.e. on its merits.” 6. It is evidently clear from the aforesaid judgment thatthe Hon’ble Supreme Court itself emphasized on the aspect ofrehabilitation continuity of life and constructive hopes forconvicts and prisoners and for the reformation even while theyare undergoing incarceration. 7.Judged in light of the aforesaid exposition of law theonly ground taken by the respondents to reject the request ofparole is that the petitioner has been convicted for a serious andheinous offence and nothing more cannot itself be a ground fordenying the petitioner parole in accordance with the provisionsof H.P. Good Conduct PrisonersAct 1968.8.Before parting it needs to be observed that as perthe instructions imparted by the District Magistrate Kangra atDharamshala the parole of the petitioner has been rejected onthe objection of the concerned Ward Member Gram Panchayat Hig h C o urt of H.P on 06 06 CIS 10and SHO P.S. Indora and SDPO Nurpur. Even otherwise suchquestions have already been considered and answered in thejudgment referred to here in above which clearly provides thatit is only cases where there is some material before the Court parole should be extended by taking a humanistic approach soas to afford the convict an opportunity to solve his personal andfamily problems and enable him to maintain his links with thesociety.9.Apart from the above we may at this stage takenote of a recent judgment of Hon’ble Supreme Court in casetitled as Shor Versus State of Uttar Pradesh and Anr. inWrit PetitionNo. 520 decided on August 05 2020 wherein the only ground for opposing release of thepetitioner therein on probation was that he had been convictedfor grave and serious offences and in case he is released therewould be a chance that he may repeat the offences which wouldsend a negative message against the justice system in thesociety. The Hon’ble Supreme Court has also held as under:“Pursuant to our order dated 30.10.2017 an order dated22.01.2018 has been passed in which it is recorded thatthough the petitioner has undergone 28 years 08 monthsand 21 days without remissionhaving undergone imprisonment of 37 years01 month and 18 days yet premature release cannot begiven in the facts of this case as the prisoner along with20 co accused committed the murder of 11 persons withdeadly weapons and injured others. Hig h C o urt of H.P on 06 06 CIS 11This being the case the order states “ premature releaseof this kind of prisoner would send a negative messageagainst the justice system in the society”. It was thenalso mentioned that Senior Superintendent of Police andthe District Magistrate have confirmed that the prisoner isnot incapacitated from committing crime. Section 2 of the United Provinces Prisoners Release on Probation Act 1938states:“2. Power of Government to release by licence onconditions imposed by them. Notwithstanding anythingcontained in Section 401 of the Code of CriminalProcedure 1898where a person isconfined in prison under a sentence of imprisonmentand it appears to the State Government from hisantecedents and his conduct in the prison that he islikely to abstain from crime and lead a peaceable life ifhe is released from prison the State Government mayby licence permit him to be released on condition thathe be placed under the supervision or authority of aGovernment Officer or of a person professing the samereligion as the prisoner or such secular institution orsuch society belonging to the same religion as theprisoner as may be recognized by the StateGovernment for this purpose provided such otherperson institution or society is willing to take charge ofhim.” It is clear that under this Section what has to be seen bythe State Government isantecedentsconduct inthe prison andthe person if released is likely toabstain from crime and lead a peaceable life. If havingregard to these factors the person is released the StateGovernment may do so on conditions stated in theSection. Hig h C o urt of H.P on 06 06 CIS 12A reading of the order dated 22.01.2018 shows that theJoint Secretary Government of U.P. has failed to apply hismind to the conditions of Section 2 of the U.P. Act. Merelyrepeating the fact that the crime is heinous and thatrelease of such a person would send a negative messageagainst the justice system in the society are factors dehors Section 2. Conduct in prison has not been referred toat all and the Senior Superintendent of Police and theDistrict Magistrate confirming that the prisoner is not“incapacitated” from committing the crime is nottantamount to stating that he is likely to abstain fromcrime and lead a peaceable life if released from prison. 10.The issue in question is otherwise squarely coveredby the judgment rendered by a Co ordinate Bench of this Courtin CMP No. 39720 in CWP No. 29319 titled‘Mrs. Har Dei versus State of Himachal Pradesh & others’ decided on 03.06.2020 and the judgment passed by this Benchin CWP No. 4120 titled Mrs. Kavita Thakur versusState of H.P. and others decided on 25.06.2020 CWP No.5218 titled Jagat Ram Versus State of HimachalPradesh and others decided on 26.06.2012 and CWP No.6620 titled Sajid versus State of HimachalPradesh and others decided on 29.06.2020.11.Similar reiteration of law can also be found in thejudgments rendered by Division Bench of this Court in CWP No.16620 titled as Paramjit Singh @ Pamma vs. Stateof H. P. & Ors. decided on 07.08.2020 and CWP No. 1497 of Hig h C o urt of H.P on 06 06 CIS 132020 titled as Anil Kumar vs. State of H. P. & Ors. decidedon 07.10.2020.12. In such circumstances we are left with no otheroption but to allow the present petition. Accordingly the presentpetition is allowed and the respondents are directed to releasethe petitioner on parole for a period of 28 days after takingrequisite personal and surety bonds. 13. However before parting it is clarified that in casethe convict violates or breaches any condition of parole order orcreate law and order problem then it shall be a factor to cancelthe parole so granted by this Court and shall also be a relevantfactor for considering the future request of the convict made inthis regard.14.The writ petition is disposed of as aforesaid leavingthe parties to bear their own costs. Pending application(s) if any also stand disposed of.Judge(Chander Bhusan Barowalia) 4th June 2021 Judge 

Summary: The purpose of prison sentences is to reform convicts and not to punish them. For this reason in cases where a convict is not a threat to society and shows genuine desire to reform and maintain societal links, parole should be encouraged for short periods of time. The judgement passed by a bench consisting of Justice Tarlok Singh Chauhan and Chander Bhusan Barowalia of the Himachal Pradesh High court in the case of Arun Kumar v. State of Himachal Pradesh and others [CWP No. 4962 of 2020] on the 4th of June 2021 granted 28 day parole to a man sentenced to life imprisonment. The petitioner, Arun Kumar was convicted for murder by Additional Sessions Judge-1, Kangra at Dharamshala on 2nd December 2017 and sentenced to life imprisonment with a fine of Rs 10,000. He requested for parole which was swiftly turned down by the respondents on the grounds that he was convicted for a heinous and serious offence. The court observed that the granting of bail is not right vested with the prisoner but a privilege available to him upon fulfilling certain conditions. Furthermore this discretionary power is meant to be exercised by the authorities only in consonance with relevant rules and regulations. The case of Asfaq v State of Rajasthan [(2017) 15 SCC 55] was cited, where it was held that although a convict must remain in jail through his sentence, his release for a short period must be considered as an opportunity to solve personal and family problems and to maintain his societal links. It was also noted this was the only crime that the petitioner had ever committed and that he was showing efforts in reformation, implying that he wasn’t a hardened criminal or a serial offender. As a result of this the court held that being convicted of a serious offence by itself should not be the sole reason to deny parole to a convict for a short period of time.