Punjab-Haryana High Court
Ashok Kumar vs State Of Haryana And Others on 1 April, 2021 In The High Court for the States of Punjab and Haryana
At Chandigarh
CRWP-4781-2020 (O&M)
Date of Decision: 1.4.2021
Ashok Kumar … Petitioner
Versus
State of Haryana and others … Respondents
CORAM: HON’BLE MR. JUSTICE GURVINDER SINGH GILL
Present:- Mr. Hoshiar Singh Jaswal, Advocate for the petitioner.
Mr. Ramesh Kumar Ambavta, AAG, Haryana.
(Proceedings conducted through video conferencing)
* * * * *
GURVINDER SINGH GILL, J.
1. The petitioner assails order dated 10.2.2020 (Annexure P-1) passed by
respondent No.1 declining the request made by the petitioner for grant of
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parole for 4 weeks under provisions of Section 3(1)(d) of Haryana Good
Conduct Prisoner’s (Temporary Release) Act, 1988.
2. The petitioner stands convicted for having committed offence under Section
302, 412, 394, 323 IPC vide judgment dated 22.11.2003 passed by learned
Sessions Judge, Faridabad in a case arising out of FIR No.331, dated
10.11.2001, Police Station Mujjesar, District Faridabad and has been
sentenced to undergo life imprisonment. Although, the petitioner assailed
the aforesaid judgment dated 22.11.2003 by filing an appeal in this Court i.e.
CRA-216-DB-2004 but the same came to be dismissed vide judgment dated
5.10.2010 passed by this Court.
3. The petitioner moved an application for grant of parole for 4 weeks on the
ground that his house needed repairs. The said application was forwarded
by respondent No.2, Superintendent, District Jail, Faridabad to respondent
No.3 for conducting verification. Respondent No.3 got the necessary
verification conducted through police and other concerned officers wherein
it was reported that house in question belongs to the petitioner and indeed
needs to be repaired. However, his release was not recommended as it was
reported that there is apprehension of breach of peace in the village, in case
he is released on parole. On the basis of the said report submitted by
Superintendent of Police, Palwal, the respondent No.3 District Magistrate
did not recommend grant of parole, while also keeping in view the fact that
the petitioner had earlier remained absconding for 9 years when he had been
released on parole in the year 2005. Consequently, impugned order dated
10.2.2020 came to be passed.
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4. Learned counsel for the petitioner has assailed impugned order dated
10.2.2020 (Annexure P-1) on the ground that there is nothing adverse in the
report as regards his conduct and that the State cannot adopt pick and choose
policy in the matter of grant of parole and that there have been several other
instances wherein persons who had absconded while availing parole had
again been released on parole. The particulars of the said cases have been
furnished in the petition as follows:
Sr. No. Name Case No.
1 Rajender s/o Shri Leela Krishan FIR No.505/2001
2. Janki Prasad s/o Shri Charan FIR No.46/1996
Singh
3. Brij Gopal s/o Badan Singh FIR No. 121/1999
4. Manoj s/o Shri Kheti Prasad FIR No.465/2007
5. Ramesh Chand s/o Shri Krishan FIR No. 123/2008
Chand
6. Ajay Jadeja s/o Shri Narpat Yadav FIR No. 299/2002
7. Pardeep son of Shri Baljeet FIR No. 231/2002
5. The State has filed reply wherein a stand has been taken that a prisoner
cannot claim parole as a matter of right and that the same is just a concession
extended to him on account of his good conduct. It is further the case of
State that the petitioner falls in the category of ‘hardcore prisoner’, having
committed an offence under Section 394 IPC and also having overstayed
parole and absconding for a good 9 years, and as such had disentitled
himself for grant of concession of parole.
6. I have considered rival submissions addressed before this Court.
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7. The matter pertaining to grant of parole to prisoners is governed by The
Haryana Good Conduct prisoners (Temoprary Release) Act 1988( hereinafter
referred to as the Act). The object of the Act reads as under:
“An Act to provide for temporary release of
prisoners for good conduct on certain conditions”
8. The name as well as the object of the Act are suggestive of scheme of the
Act that good conduct of a prisoner could earn him temporary release from
prison. Before proceeding further, it will be beneficial to bear in mind the
relevant provisions of the Act for release of prisoners on parole. There are
two type of prisoners as per the Act i.e. a “prisoner” and a “hardcore
prisoner”. Section 2(d) of the Act which defines a “prisoner” reads as
under:
2(d) ‘prisoner’ means a person confined in prison or jail or other
institution of like nature under a sentence of imprisonment for
life or imprisonment by any court in India or the Court martial
or any other authority exercising the power of a Criminal
Court;
9. Section 2(aa) of the Act which defines a “hardcore prisoner” reads as
under:
2(aa) ‘hardcore prisoner’ means a person
(i) who has been convicted of –
(1) robbery under section 392 or 394 IPC;
(2) dacoity under section 395, 396 or 397 IPC;
(3) kidnapping for ransom under section 364A IPC;
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(4) murder or attempt to murder for ransom or extortion under
section 387 read with 302 or section 387 read with 307 IPC;
(5) rape with murder under section 376 read with 302 IPC;
(6) rape with a woman below sixteen years of age;
(7) rape as covered under section 376A, 376D or 376E IPC;
(8) serial killing i.e. murder under section 302 IPC is two or
more cases in different First Information Reports;
(9) murder under section 302 IPC, if the offender is a contract
killer as apparent from the facts mentioned in the judgment
of the case;
(10) lurking house trespass or house breaking where death or
grievous hurt is caused under section 459 or 460 IPC;
(11) either of offence under sections 121 to 124A IPC;
(12) immoral trafficking under section 3,4 or 5 of the Immoral
Traffic (Prevention) Act, 1956 (104 of 1956) involving
minors or under section 366A, 366B, 372 or 373 IPC;
(13) offence under section 17(c) or 18(b) of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (Central Act 61 of
1985); or
(14) offence under section 14 of the Protection of Children from
Sexual Offences Act, 2012 (Central Act 32 of 2012);
(ii) who during a period of five years immediately before his
conviction has earlier been convicted and sentenced for
commission of one or more offences mentioned in Chapter XII
or XVII of IPC, except the offences covered under Clause (i)
above, committed on different occasions not constituting part of
the same transaction and as a result of such conviction has
undergone imprisonment at least for a period of twelve months:
Provided that while counting the period of five years, the period
of actual imprisonment or detention shall be excluded:
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Provided further that if a conviction has been set-aside in
appeal or revision, then any imprisonment undergone in
connection therewith shall not be taken into account for the
above purpose; of
(iii) who has been sentenced to death penalty; or
(iv) who has been detected or using cell phone or in possession of
cell phone/SIM card inside the jail premises; or
(v) who failed to surrender himself within a period of ten days from
the date on which he should have so surrendered on the expiry
of the period for which he was released earlier under this Act:
Provided that the State Government may, by notification
include any offence in the list of offences mentioned above.
Explanation.- For the purposes of this section, “IPC means the
Indian Penal Code, 1860 (Central Act 45 of 1860).
10. While Section 3 of the Act deals with the temporary release of ‘prisoners’ on
certain grounds, Section 5A of the Act provides the temporary release of
‘hardcore prisoners’ which reads as under:
3- Temporary release of Prisoner on certain grounds : –
(1) The State Government may, in consultation with the District
Magistrate or any other officer appointed in this behalf, by
notification in the official Gazette 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 or
the prisoner himself is seriously ill; or
(b) the marriage of prisoner himself, his son, daughter, grandson,
grand daughter, brother, sister, sister’s son or daughter is to be
celebrated; or
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(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 his father’s undivided land actually in
possession of the prisoner; or
(d) it is desirable to do so for any other sufficient cause.
(2) The period for which a prisoner may be released shall be determined
by the State Government so as not to exceed-
(a) where the prisoner is to be released on the grounds specified in
clause (a) of sub-section (1), three 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
(c) where the prisoner is to be released on the grounds specified in
clause (c) of sub-section (1), six weeks;
Provided that the temporary release under clause (c) can be
availed more than once during the year, which shall not,
however, cumulatively exceed six weeks.
(3) The period of release under this section shall not count towards the
total period of the sentence of a prisoner.
(4) The State Government may, by notification, authorize any officer to
exercise its powers under this section in respect of all or any other
ground specified thereunder.
5A- Special Provisions for temporary release of hardcore prisoners-
(1) Notwithstanding anything contained in sections 3 and 4, no hardcore
prisoner shall be entitled to temporary release or furlough.
Provided that a hardcore prisoner may be released on temporary basis
to attend the marriage of his child or sibling, or death of his grand
parent, parent, grand parent-in-laws, parent-in-laws, sibling, spouse,
child or grand child under an armed police escort for a period of forty
eight hours, to be decided by the concerned superintendent of Jail.
Provided further a hardcore prisoner may be released on temporary
basis to attend the marriage of his daughter for ninety six hours and
for the marriage of his son for seventy two hours under an armed
police escort, to be decided by the concerned Superintendent of Jail.
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He shall intimate within twenty four hours, the concerned District
Magistrate and Superintendent of Police in this regard with full
particulars of the hardcore prisoner being so released.
(2) Notwithstanding anything contained in sub section (1) a convicted
hardcore prisoner who has not been awarded penalty, may be entitled
for temporary release or furlough only if he has completed his five
years imprisonment and has not been awarded major punishment by
the Superintendent of Jail as judicially appraised by the concerned
District and Sessions Judge.
Provided that the five years imprisonment period shall not include
imprisonment during trial period for more than two years, while
counting five years of imprisonment.
Provided further that if the prisoner so released under this sub section
violates any condition of temporary release or furlough, he shall be
debarred from such release in future.
11. It is evident from the scheme of the Act that stricter conditions apply for
release of ‘hardcore prisoners’ on parole. The petitioner, by virtue of the
offence committed by him i.e. section 394 IPC and also on account of having
over-stayed parole for about 9 years, when he was earlier released on parole
in 2005, would qualify to be called as ‘hardcore prisoner’, as per Section
2(aa) of the Act. The relevant provisions as extracted are from section 2(aa)
are reproduced below:
“hardcore prisoner” means a person, –
(i) who has been convicted of –
(1) robbery under Section 392 or 394 IPC
(2) to 14 – xxx
(ii) to (iv) – x x x
(v) who failed to surrender himself within a period
of ten days from the date on which he should
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have so surrendered on the expiry of the period
for which he was released earlier under this Act;
12. Though the petitioner, being a ‘hardcore prisoner’ should have applied for
temporary release under special provisions of section 5A of the Act but he
has chosen to seek parole under provisions of section 3(1)(d) which are
applicable to ‘prisoners’ and not to ‘hardcore prisoners’. In any case, the
Commissioner, Faridabad Division has taken notice of the fact that the
petitioner is a ‘hardcore prisoner’.
13. The learned counsel for the petitioner has, however, vehemently argued that
even if the petitioner is considered as a ‘hardcore prisoner’ still by virtue of
sub-section(2) of section 5A, the petitioner would be entitled to parole, as
during the last 5 years of imprisonment has not been awarded any major
punishment by Superintendent of Jail, as judicially appraised by concerned
District and Sessions Judge. The learned counsel has further submitted that
the effect of overstaying parole on an earlier occasion will not come his way
as Rule 10 of The Haryana Good Conduct Prisoners(Temporary Release)
Rules 2007(hereinafter referred to as The Rules) lays down the period during
which the parole of such prisoner is not to be considered and that as per Rule
10, such prisoner who had overstayed parole for more than 30 days becomes
entitled for parole after 2 years of the date of his surrender/arrest and since
the petitioner had surrendered in the year 2014 which is more than 6 years
back, therefore he cannot be denied parole.
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14. Since it is provision of sub-section (2) of Section 5A of the Act as well as
Rule 10 of the Rules which are being relied upon by counsel for the
petitioner, the same are extracted below for ready reference:
Section 5A-
Special Provisions for temporary release of hardcore prisoners-
(1) Notwithstanding anything contained in sections 3 and 4, no hardcore
prisoner shall be entitled to temporary release or furlough.
Provided ….. ….. …..
Provided ….. ….. …..
(2) Notwithstanding anything contained in sub section (1) a committed
hardcore prisoner who has not been awarded penalty, may be entitled
for temporary release or furlough only if he has completed his five
years imprisonment and has not been awarded major punishment by
the Superintendent of Jail as judicially appraised by the concerned
District and Sessions Judge.
Provided …… ….. …..
Provided ….. ….. …..
Rule 10-
Consequences of overstay [Section 10(2)(d)] –
(i) if the convict overstays 15 days of his parole/furlough, his
parole/furlough case shall not entertained by the Superintendent of Jail
earlier one year from the date of the surrendered/arrest.
(i) if the convict overstays 30 days of his parole/furlough, his
parole/furlough case shall not entertained by the Superintendent of Jail
earlier two years from the date of the surrendered/arrest.
15. While several penal laws have been enacted to ensure maintenance of law
and order wherein punishments ranging from imposition of fine to
imprisonment for life and in some cases even sentence of death has been
provided, the legislature being sensitive to human needs and requirements
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has also enacted laws to provide for temporary release of prisoners under
certain circumstances and conditions. For example – in case of a
bereavement in the family or in case of marriage of the prisoner himself or
of someone else in the immediate family or to attend to some agricultural
activity etc. Section 5A of the Act, while imposing a bar in sub-section(1) for
release of ‘hardcore prisoners’ on parole, also provides for some kind of
exception in sub-section (2) where a ‘hardcore prisoner’ may be entitled on
parole. However the word ‘may’ as existing in subs-ection (2) shows that it
is a discretion with the authorities and not a matter of right which every
‘hardcore prisoner’ can claim. By virtue of Rule 10 of the Rules, in a case of
overstay of parole for a period of more than 15 days on 30 days, a prisoner
becomes entitled for entertainment of this application again for parole after
one year or two years respectively. The right of ‘entertainment’ of an
application cannot be confused with entitlement. It is for the authorities
concerned to consider each case on merits individually and exercise
discretion judiciously. In the instant case the factum of overstay of 9 years
by the petitioner when he was earlier released on bail in the year 2005
reflects on his conduct. Rule 10 deals with cases of overstay for shorter
periods of more than 15 days or 30 days. The authorities concerned can and
infact should take into account the length of the period of over-stay and also
as to whether such over-stay is in case of a ‘prisoner’ or a ‘hardcore
prisoner’. In the instant case the petitoner was already a ‘hardcore prisoner’
even before his over-stay as he had been convicted for an offence inder
section 394 IPC.
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16. Though it has been submitted that in terms of sub-section (2) of Section 5A
of the Act, it is only in case any major punishment imposed by
Superintendent and appraised by District and Sessions Judge which can be
take into account for disentitling him for parole and that since there is no
such punishment was ever imposed by Superintendent, therefore he, in any
case, is entitled for his release on parole, but this Court is unable to accept
the aforesaid contention inasmuch as in the instant case he has been
convicted by a Judicial Court i.e. by the Court of CJM Palwal in FIR 507 by
dated 18.8.2005 u/s 8 and 9 of the Act on account of his overstay for 9 years
wherein he was sentenced to undergo imprisonment which he had already
undergone and was also imposed a fine of ₹ 700 vide judgement dated
25.2.2016. Such penalty of imprisonment and fine cannot be said to be a
minor punishment. Further the act of overstay is something relatable to the
conduct of petitioner during his imprisonment and is not just a misconduct
committed outside the prison. In these circumstances the petitioner cannot
claim that his conduct during the period of imprisonment has been above
board. Such like conduct of over-stay is certainly required to be taken into
account while considering the case of such ‘hardcore prisoner’ for his
release on parole. It is a discretion to be exercised judiciously.
17. Another ground taken in the petition is that subsequent to the petitioner
over-staying the parole and his re-arrest in 2014, he had been granted parole
and had surrendered back in time and as such his absconding in the year
2005 can not now be taken into account. However, since the State, in its
reply has clarified that the said parole which had been granted to him in the
year 2018 to attend marriage of daughter was merely permission to attend
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the marriage while in custody, the petitioner can not claim any advantage
from the same to prove his good conduct.
18. The learned counsel for the petitioner also tried to build up a case of
discrimination on the ground that some other identically situated prisoners
have granted bail, but upon a query made by this Court to the learned
counsel for the petitioner that as to whether in said instances also the period
for which the convict absconded was as long as 8-9 years, the learned
counsel for the petitioner fairly submitted that in the cited cases the period
was not as long as is there in the instant case. Keeping in view the fact that
the petitioner remained absconding for exceptionally long period of 9 years,
he cannot claim the benefit of parole as a matter of right. Rather such like
conduct disentitles him for grant of parole. This Court in 2018(4) RCR(Crl)
145 Sanjay – Petitioner vs. State of Haryana and others took note of
overstaying of a prisoner for a period less than 2 years while dismissing a
petition for release on parole. The relevant extract reads as follows:
“Moreover, the petitioner is not trustworthy because in the past he has
absconded from the parole and furlough for a long period. He
remained absconder from parole from 20.6.2007 to 13.11.2007 for a
period of 4 months and 25 days then he was released on parole for
four weeks for house repair on 12.5.2010 and was supposed to
surrender on 10.6.2010 but was arrested on 30.11.2011 by the Police
and then he remained absconder from parole from 10.6.2010 to
29.11.2011 for a period of 1 year, 05 months and 20 days. Every time
FIR was registered against him. Moreover, the petitioner has already
been termed as a ‘hardcore prisoner’. Therefore, the application filed
by him under Section 3(1)(b) of the Act is not maintainable because
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there is a separate procedure prescribed for the hardcore prisoner to
apply for parole.”
19. A Division Bench of this Court in 2016(2) RCR(Crl) 1040 Vakil Raj vs.
State of Haryana, has held that parole is not a right but a concession, which
is extended on good conduct. Keeping in view the past conduct of the
petitioner who had chosen to abscond for a long period of 9 years, there is
certainly would be an apprehension that the petitioner, if granted parole,
would again abscond and may not report back to undergo his remaining
sentence.
20. Finding no merit in the petition, the same is hereby dismissed.
1.4.2021 ( GURVINDER SINGH GILL )
Mohan JUDGE
Whether speaking /reasoned Yes / No
Whether Reportable Yes / No
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