Himachal Pradesh High Court

Raj Kumar Jaswal vs State Of H.P. And Others on 26 June, 2020

Bench:
Tarlok Singh Chauhan
,
Jyotsna Rewal Dua

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.1721 of 2019.

.

Date of decision: 26.06.2020.

Raj Kumar Jaswal .....Petitioner.

Versus
State of H.P. and others .....Respondents.

Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting?1 Yes

For the Petitioner : Ms. Salochna Rana,
Advocate, through video
conferencing.

For the Respondents: Mr. Ashok Sharma, Advocate
General with Mr. Vikas
Rathore, Mr. Vinod Thakur,

Mr. Desh Raj Thakur,
Additional Advocate

Generals and Mr. Bhupinder
Thakur, Deputy Advocate
General, through video

conferencing.

COURT PROCEEDINGS CONVENED THROUGH VIDEO
CONFERENCE.

Tarlok Singh Chauhan, Judge (Oral)

The petitioner has filed the instant petition for

grant of the following substantive reliefs:
Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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"i) That the impugned rejection letter dated
11.06.2019 (Annexure P-1) may kindly be

.

quashed and set aside.

ii) That the respondents may kindly be
directed to release the petitioner on parole for a

period of one month."

2. Records reveal that the petitioner has been

convicted for an offence punishable under
Section 306
IPC

wherein he was sentenced to undergo imprisonment for

four years and the same was upheld by this Court in the

appeal preferred by the petitioner which was registered as

Criminal Appeal No. 663 of 2008.

3. The request of the petitioner for release on

parole has been rejected for want of recommendations by

the competent authority.

4. It was in this background that this Court on

07.08.2019 while issuing notice to the respondents passed

the following directions:

"Notice. Mr. J.K. Verma, learned Additional
Advocate General takes notice for the
respondents. He is directed to get a copy of the
letter of the District Magistrate on the basis of
which the impugned order is passed. Post on
13th August, 2019."

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5. It was in compliance to the aforesaid directions

.

that the respondents placed on record the details of the

cases in which the petitioner was/has been involved in the

cases enumerated hereinbelow.

"1 18/2014 dated Kailash Raj Kumar Pending with
09-02-2014
u/s 451
, Kumari W/O Jaswal S/o the Ld. Court

504, 506, 427
IPC
, PS Late Sh. Sh. Ram ACJM-II, Amb
Gagret Desh Raj R/o Kishan, on
Kaloh, Tehsil Caste 15-05-2014.

Amb, District Rajput, R/O
Una(HP). Kaloh, Tehsil
r Amb, District
Una(HP).

2 68/2014 dated Munish Raj Kumar Pending with
20-05-2014
u/s 279
, Sharma S/O S/o Sh. Ram the Ld. Court
283, 504, 506
IPC
, PS Sh. Bhaghi Kishan, R/O JMIC-II, Amb
Gagret Rath R/O Kaloh, Tehsil from

VPO Gagret, Amb, District 10-07-2014.
Tehsil Amb, Una(HP) age
District Una 51 years.
(HP).

3 78/2014 dated Kailash Raj Kumar Pending with
12-06-2014
u/s 452
, Kumari W/O S/o Sh. Ram the Ld. Court

323, 504, 506
IPC
, PS Late Sh. Kishan, ACJM, Amb
Gagret Desh Raj R/o Caste from
Kaloh, Tehsil Rajput, R/O 08-09-2014.
Amb, District Kaloh, Tehsil

Una(HP). Amb, District
Una(HP), age
53 years.
4 105/2014 dated Kanwar Rohit Raj Kumar Acquitted
04-08-2014
u/s 325
, Jaswal S/O S/o Late Sh. due to
IPC
, P.S. Gagret Sh. Raj Ram Kishan, compromise
Kumar, R/O Caste between the
Kaloh, Tehsil Rajput, R/O both parties
Amb, District Kaloh, Tehsil in the Ld.
Una (HP). Amb, District Court JMIC-II,
Una(HP), age Amb on
53 years. 20-09-2016.
5 81/2005 dated Manohar Lal Raj Kumar Pending with

03-05-2005 u/s 341, S/O Sh. Sant S/o Sh. Ram JMIC, Amb.

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323, 506, 427
IPC
, PS Ram, Caste Kishan,
Gagret Brahmin, R/O Caste
Indra Nagar, Rajput, R/O

.
Gagret, Kaloh, Tehsil

Tehsil Amb, Amb, District
District Una Una(HP).
(HP).
6 15/2011 dated Information Raj Kumar Information

23-01-2011
u/s 384
, of Challani @ Raju S/o of Challani.
IPC
, PS Amb Late Sh. Ram
Kishan
Jaswal, R/O
Kaloh, Tehsil

Amb, District
Una(HP), age
50 years.
7 28/85 dated 26-06-85 Dharam 1. Raj Kumar Acquitted by
u/s 324, 325, 323, 34 Singh S/O S/o Sh. Ram the Ld. Court

IPC
, PS Gagret Sh. Sher Kishan, SDJM, Amb,

Singh Caste Caste on
Rajput, R/o Rajput, R/O 20-05-1987.
Kaloh,Tehsil Kaloh, Tehsil
Amb, District Ghanari,
Una (HP), District
age 35 Una(HP).

years. 2.Angad
Singh S/O
Sh. Kehar
Singh, R/o

Kaloh, Tehsil
Ghanari,

District Una
(HP).
3. Harminder
Pal Singh @

Pali, R/O
Kaloh, Tehsil
Ghanari,
District Una
(HP).
4. Amrit Lal
Soni S/O Sh.
Mangat Ram,
Caste Khatri,
R/O Kaloh,
Tehsil
Ghanari,
District Una,
(HP).

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8. 30/2004 dated Sushma Raj Kumar Acquitted by
16-02-2004
u/s 498
A, Jaswal S/o Sh. Ram the Ld. Court
323, 506
IPC
, PS W/O Sh. Raj Krishan, ACJM, Amb,

.
Gagret Kumar, Caste on

Caste Rajput, R/O 10-12-2004.
Rajput, R/O Kaloh, Tehsil
Kaloh, Tehsil Amb, District
Amb, District Una(HP), age

Una (HP), 41 years.
age 39
years.
9 106/2005 dated Leela Devi, Raj Kumar Convicted
29-06-2005 u/s 452, W/O Late Sh. S/o Sh. Ram with fine to

323, 506
IPC
, PS Ram Kishan, Kishan, Rs.1000/-
Gagret Caste Caste along with
Rajput, R/O Rajput, R/O one year
W. No. 6, Ward No.6, simple
Kaloh, Tehsil Kaloh, Tehsil imprisonment
r Amb, District Amb, District by the Ld.
Una (HP). Una(HP). Court JMIC-II,

Amb on
22-12-2006.
10 121/2006 dated Raman Raj Kumar Convicted
13-07-2006
u/s 306
Kumari, W/O S/O Sh. Ram with fine to

IPC
, PS Gagret Sh. Kishan, Rs.10,000/-

Sudarshan Caste along with
Singh, Caste Rajput, R/O one year
Rajput, R/O Kaloh, Tehsil rigorous
Kaloh, Tehsil Amb, District imprisonment

Amb, District Una(HP). by the Ld.
Una (HP), Sessions

age 47 Judge, Una,
years. on
07-11-2008.
11 28/2010 dated Mohan Lal 1. Raj Kumar Pending with

24-02-2010
u/s 364
, S/O Sh. S/O Sh. Ram the Ld. Court
342, 324, 323, 506, Bakeel Kishan JMIC-II, Amb
34, 326
IPC
, PS. Chand R/O Jaswal, Caste from
Gagret Pambra, Rajput, R/O 30-04-2010.
Tehsil Amb, Kaloh, Tehsil
District Una Amb, District
(HP). Una (HP),
age 45
years.
2. Sushma
Jaswal W/O
Sh. Raj
Kumar
Jaswal, R/O

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Kaloh, Tehsil
Amb, District
Una (HP),

.
age 42

years.
3.Rohit
Jaswal S/O
Sh. Raj

Kumar
Jaswal, Caste
Rajput, R/O
Kaloh, Tehsil
Amb, District
Una (HP),

age 21
years.
12 15/2011 dated Chanan Raj Kumar Acquitted
28-02-2011
u/s 323
Singh S/O S/O Sh. Ram due to

IPC
, PS Gagret Sh. Ramu Kishan compromise
Ram, R/O Jaswal @ between the

Kaloh, Tehsil Gorkha, R/O both parties
Amb, District Kaloh, Tehsil in the Ld.
Una (HP). Amb, District Court JMIC-II,
Una (HP). Amb, on
03-11-2012."

6. Now, the moot question is whether in view of the

involvement of the petitioner in so many cases, can he still

be released on parole.

7. It is more than settled that the grant of remission

or parole is not a right vested with the prisoner. It is a

privilege available to the prisoner on fulfilling certain

conditions. This is a discretionary power which has to be

exercised by the authorities conferred with such powers

under the relevant rules/regulations. The Court cannot

exercise these powers, though once the powers are

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exercised, the Court may hold that the exercise of powers is

not in accordance with rules.

.

8. The Hon'ble Supreme Court has considered in

detail the nature, object, purpose and parameters for grant

of parole subject to which parole can be granted in
Asfaq

versus State of Rajasthan and others
, (2017) 15 SCC

55, wherein it was observed as under:

"14. Furlough, on the other hand, is a brief release
from the prison. It is conditional and is given in case

of long term imprisonment. The period of sentence

spent on furlough by the prisoners need not be
undergone by him as is done in the case of parole.
Furlough is granted as a good conduct remission.

15. A convict, literally speaking, must remain in jail
for the period of sentence or for rest of his life in case

he is a life convict. It is in this context that his release

from jail for a short period has to be considered as an
opportunity afforded to him not only to solve his

personal and family problems but also to maintain his
links with society. Convicts too must breathe fresh air
for at least some time provided they maintain good
conduct consistently during incarceration and show a
tendency to reform themselves and become good
citizens. Thus, redemption and rehabilitation of such
prisoners for good of societies must receive due
weightage while they are undergoing sentence of
imprisonment.

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16. This Court, through various pronouncements, has
laid down the differences between parole and

.

furlough, few of which are as under:

(i) Both parole and furlough are conditional
release.

(ii) Parole can be granted in case of short term
imprisonment whereas in furlough it is granted

in case of long term imprisonment.

(iii) Duration of parole extends to one month
whereas in the case of furlough it extends to

fourteen days maximum.

(iv) Parole is granted by Divisional
Commissioner and furlough is granted by the

Deputy Inspector General of Prisons.

(v) For parole, specific reason is required,

whereas furlough is meant for breaking the
monotony of imprisonment.

(vi) The term of imprisonment is not included in

the computation of the term of parole, whereas
it is vice versa in furlough.

(vii) Parole can be granted number of times
whereas there is limitation in the case of
furlough.

(viii) Since furlough is not granted for any
particular reason, it can be denied in the
interest of the society.

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{See
State of Maharashtra and Another v. Suresh
Pandurang Darvakar
(2006) 4 SCC 776; and State of

.

Haryana and Others v. Mohinder Singh
, (2000) 3

SCC 394.

17. From the aforesaid discussion, it follows that

amongst the various grounds on which parole can be
granted, the most important ground, which stands
out, is that a prisoner should be allowed to maintain

family and social ties. For this purpose, he has to
come out for some time so that he is able to maintain
his family and social contact. This reason finds

justification in one of the objectives behind sentence

and punishment, namely, reformation of the convict.
The theory of criminology, which is largely accepted,
underlines that the main objectives which a State

intends to achieve by punishing the culprit are:

deterrence, prevention, retribution and reformation.
When we recognise reformation as one of the

objectives, it provides justification for letting of even
the life convicts for short periods, on parole, in order

to afford opportunities to such convicts not only to
solve their personal and family problems but also to

maintain their links with the society. Another
objective which this theory underlines is that even
such convicts have right to breathe fresh air, al beit
for periods. These gestures on the part of the State,
along with other measures, go a long way for
redemption and rehabilitation of such prisoners. They
are ultimately aimed for the good of the society and,
therefore, are in public interest.

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18. The provisions of parole and furlough, thus,
provide for a humanistic approach towards those

.

lodged in jails. Main purpose of such provisions is to

afford to them an opportunity to solve their personal
and family problems and to enable them to maintain

their links with society. Even citizens of this country
have a vested interest in preparing offenders for
successful re-entry into society. Those who leave
prison without strong networks of support, without

employment prospects, without a fundamental
knowledge of the communities to which they will
return, and without resources, stand a significantly

higher chance of failure. When offenders revert to

criminal activity upon release, they frequently do so
because they lack hope of merging into society as
accepted citizens. Furloughs or parole can help

prepare offenders for success.

19. Having noted the aforesaid public purpose in

granting parole or furlough, ingrained in the

reformation theory of sentencing, other competing
public interest has also to be kept in mind while

deciding as to whether in a particular case parole or
furlough is to be granted or not. This public interest
also demands that those who are habitual offenders
and may have the tendency to commit the crime
again after their release on parole or have the
tendency to become threat to the law and order of
the society, should not be released on parole. This
aspect takes care of other objectives of sentencing,
namely, deterrence and prevention. This side of the

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coin is the experience that great number of crimes
are committed by the offenders who have been put

.

back in the street after conviction. Therefore, while

deciding as to whether a particular prisoner deserves
to be released on parole or not, the aforesaid aspects

have also to be kept in mind. To put it tersely, the
authorities are supposed to address the question as
to whether the convict is such a person who has the
tendency to commit such a crime or he is showing

tendency to reform himself to become a good citizen.

20. Thus, not all people in prison are appropriate for

grant of furlough or parole. Obviously, society must

isolate those who show patterns of preying upon
victims. Yet administrators ought to encourage those
offenders who demonstrate a commitment to

reconcile with society and whose behaviour shows
that aspire to live as law-abiding citizens. Thus, parole
program should be used as a tool to shape such

adjustments.

21. To sum up, in introducing penal reforms, the State
that runs the administration on behalf of the society

and for the benefit of the society at large cannot be
unmindful of safeguarding the legitimate rights of the
citizens in regard to their security in the matters of life
and liberty. It is for this reason that in introducing such
reforms, the authorities cannot be oblivious of the
obligation to the society to render it immune from
those who are prone to criminal tendencies and have
proved their susceptibility to indulge in criminal
activities by being found guilty (by a Court) of having

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perpetrated a criminal act. One of the discernible
purposes of imposing the penalty of imprisonment is

.

to render the society immune from the criminal for a

specified period. It is, therefore, understandable that
while meting out humane treatment to the convicts,

care has to be taken to ensure that kindness to the
convicts does not result in cruelty to the society.
Naturally enough, the authorities would be anxious to
ensure that the convict who is released on furlough

does not seize the opportunity to commit another
crime when he is at large for the time-being under the
furlough leave granted to him by way of a measure of

penal reform.

22. Another vital aspect that needs to be discussed is
as to whether there can be any presumption that a

person who is convicted of serious or heinous crime is
to be, ipso facto, treated as a hardened criminal.
Hardened criminal would be a person for whom it has

become a habit or way of life and such a person would
necessarily tend to commit crimes again and again.

Obviously, if a person has committed a serious
offence for which he is convicted, but at the same

time it is also found that it is the only crime he has
committed, he cannot be categorised as a hardened
criminal. In his case consideration should be as to
whether he is showing the signs to reform himself and
become a good citizen or there are circumstances
which would indicate that he has a tendency to
commit the crime again or that he would be a threat
to the society. Mere nature of the offence committed
by him should not be a factor to deny the parole

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outrightly. Wherever a person convicted has suffered
incarceration for a long time, he can be granted

.

temporary parole, irrespective of the nature of offence

for which he was sentenced. We may hasten to put a
rider here, viz. in those cases where a person has

been convicted for committing a serious office, the
competent authority, while examining such cases, can
be well advised to have stricter standards in mind
while judging their cases on the parameters of god

conduct, habitual offender or while judging whether
he could be considered highly dangerous or prejudicial
to the public peace and tranquillity etc.

23. There can be no cavil in saying that a society that
believes in the worth of the individuals can have the
quality of its belief judged, at least in part, by the

quality of its prisons and services and recourse made
available to the prisoners. Being in a civilized society
organized with law and a system as such, it is

essential to ensure for every citizen a reasonably
dignified life. If a person commits any crime, it does

not mean that by committing a crime, he ceases to be
a human being and that he can be deprived of those

aspects of life which constitute human dignity. For a
prisoner all fundamental rights are an enforceable
reality, though restricted by the fact of imprisonment.
{See - Sunil Batra (II) v. State (UT of Delhi) (
1980) 3
SCC 488 , Maneka Gandhi v. Union of India
(
1978) 1
SCC 248 and Charles Sobraj v. Superintendent
Central Jai, Tihar, New Delhi
, (1978) 4 SCC 104.

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24. It is also to be kept in mind that by the time an
application for parole is moved by a prisoner, he

.

would have spent some time in the jail. During this

period, various reformatory methods must have been
applied. We can take judicial note of this fact, having

regard to such reformation facilities available in
modern jails. One would know by this time as to
whether there is a habit of relapsing into crime in
spite of having administered correctional treatment.

This habit known as "recidivism" reflects the fact that
the correctional therapy has not brought in the mind
of the criminal. It also shows that criminal is hardcore

who is beyond correctional therapy. If the correctional

therapy has not made in itself, in a particular case,
such a case can be rejected on the aforesaid ground
i.e. on its merits."

9. Bearing in mind the aforesaid exposition of law, it

is evidently clear that even though the purpose of granting

parole is ingrained in the reformatory theory of sentencing,

however, the other competing public interest has also to be

kept in mind while deciding as to whether in a particular

case parole is to be granted or not. This public interest also

demands that those who are habitual offenders and may

have the tendency to commit the crime again after their

release on parole or have the tendency to become threat to

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the law and order of the society, should not be released on

parole.

.

10. The grant of parole is not a right vested with the

prisoner and is rather a privilege available to the prisoner

on fulfilling certain conditions and in view of the long history

of cases as set out hereinabove, we really do not find any

infirmity with the order passed by the respondents rejecting

the claim of the petitioner for grant of parole.

11. Consequently, we find no merit in the instant

writ petition and the same is accordingly dismissed, leaving

the parties to bear their own costs. Pending application(s),

if any, also stand disposed of.

(Tarlok Singh Chauhan)

Judge

(Jyotsna Rewal Dua)
Judge
26th June, 2020.

(krt)

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