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Punjab-Haryana High Court
Satish vs State Of Haryana And Ors on 15 March, 2021CRWP-2273 of 2020 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CRWP-2273 of 2020
209 Date of decision: 15.03.2021
Satish … Petitioner
Vs.
State of Haryana and others … Respondents
CORAM: HON’BLE MR. JUSTICE SUVIR SEHGAL
Present:- Mr. Susheel Gautam, Advocate for the petitioner.
Mr. Rajiv Sidhu, DAG, Haryana for the respondent-State.
***
SUVIR SEHGAL J. (ORAL)
The Court has been convened through video conferencing due to
Covid-19 pandemic.
This criminal writ petition has been filed seeking setting aside of the
order 03.01.2020, Annexure P-1, whereby application of the petitioner for release
on parole for house repair has been rejected and for grant of Parole for four weeks
in view of Section 3(1)(d) of the Haryana Good Conduct Prisoners (Temporary
Release) Act, 1988 (for brevity hereinafter referred to as “the Act”).
Facts, in a nutshell leading to the filing of the present petition, are that
the petitioner has been convicted and is undergoing sentence of rigorous
imprisonment of ten years in FIR No. 94 dated 06.05.2009 under section 392, 394
and 397, IPC and section 25 of Arms Act, 1954 at PS GRP, Karnal. CRA-S-23-
SB-2010 titled as Bhim Singh and others versus State of Haryana, against the
conviction and sentence passed by the trial court was dismissed by this Court on
10.03.2015. The petitioner is lodged in District Jail, Panipat and has undergone a
continuous sentence of more than five years. He has old parents and there is no
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other member in the family to take care of them. He submitted an application
dated 31.12.2019, Annexure P-1, for parole for house repair which has been
rejected by respondent No.5 vide the impugned order on the ground that he is a
“hardcore prisoner”.
Counsel for the petitioner has placed reliance upon sub-section (v) of
section 2(aa) of the Act to submit that as the petitioner had surrendered within ten
days from which date he should have so surrendered on the expiry of the parole
period, he could not be labelled as a “hardcore prisoner”.
The respondents have filed reply and opposed the petition on the
ground that the petitioner is a “hardcore prisoner” and has been convicted for
henious crimes in three different criminal cases and had violated the condition of
temporary release by surrendering late when he was previously released on parole,
therefore, he is debarred from temporary release/furlough as provided in proviso to
section 5A(2) of the Act.
I have heard the counsel for the parties and considered their arguments.
Before dealing with the argument raised by the counsel for the
petitioner, section 2 (aa) and section 5A of the Act deserve to be noticed and are
reproduced hereunder:
“(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 364-A IPC;
(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 yeas of age’
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(7) rape as covered under Section 376A, 376D or 376E IPC.
(8) serial killing i.e. murder under section 302 IPC in 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 offences 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 366-A, 366-B, 372 or 373
IPC.
(13) offence under section 179(c) or 18(b) of the Narcotics
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); or
(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;
Provided further that if a conviction has been set aside in
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appeal or revision, then any imprisonment undergone in connection
therewith shall not be taken into account for the above purpose; or
(iii) who has been sentenced to death penalty; or
(iv) who has been detected of 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.”
xxxx
“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 prisoners may be released on
temporary basis to attend the marriage of his grand 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 that a hardcore prisoner may be released
on temporary basis to attend the marriage 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. 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
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hardcore prisoner who has not been awarded death penalty, may be
entitled for temporary release or furlough only if he has completed his
five years imprisonment and has not been awarded any 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 released in future.”
In their reply, the respondents have mentioned that the petitioner has
been convicted in three criminal cases and have given the details of the cases,
which are reproduced as under:-
(i) Convicted in FIR No. 70 dated 11.03.2009 under
section 394, 397, 34, IPC and Section 25(1)(b)(a) of Arms
Act, 1959, registered at P.S. GRP, Karnal and sentenced to
undergo rigorous imprisonment for ten years and to pay fine
of Rs. 2,000/- and in default of payment of fine, to undergo
rigorous imprisonment for one year, vide judgment dated
18.11.2009 passed by the Addl. Sessions Judge, FTC,
Karnal. The sentence has been executed, but the fine has not
been paid.
(ii) Convicted in FIR No. 94 dated 06.05.2009 under
section 394, 397, 34, IPC, under section 25(1)(b)(a) of Arms
Act, 1959, and section 141 of Railways Act, 1989, at P.S.
GRP, Karnal and sentenced to undergo rigorous
imprisonment for ten years and to pay fine of Rs. 2,000/- and
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in default of payment of fine, to undergo rigorous
imprisonment for one year, vide judgment dated 19.11.2009
passed by the Addl. Sessions Judge, FTC, Karnal. The
petitioner is undergoing this sentence.
(iii) Convicted in FIR No. 36 dated 12.04.2009 under
section 395, 397, IPC at P.S. GRP, Panipat and sentenced to
undergo rigorous imprisonment for seven years and to pay
fine of Rs. 5,000/- and in default of payment of fine, to
undergo rigorous imprisonment for six months, vide
judgment dated 12.01.2011 passed by the Addl. Sessions
Judge, Panipat. The sentence in this case is to commence
after bail/ completion of sentence in FIR No. 94 dated
06.05.2009.
In all the three cases, the petitioner has been convicted for offences
under section 394 and 397, IPC, besides other offences. He, therefore, falls within
the ambit of definition of “hardcore prisoner” under sub-section (i) of section 2(aa)
of the Act The petitioner has been termed as hardcore prisoner on account of the
convictions recorded against him. He is a hardcore prisoner from the beginning
itself and not on account of the fact that he surrendered late after expiry of period
of parole in December, 2015.
A closer look at the provision contained in section 2(aa), ibid, shows
that a person who surrenders later than ten days after the period of his temporary
release is over, is also to be considered as a hardcore prisoner. Such a person
forms a separate category, which is distinct from the category of hardcore prisoner
under which the petitioner falls. Therefore, the judgment of this Court in CRWP-
1104-2017 titled as Balwan Singh versus State of Haryana and others, decided
on 24.01.2018, will not help the petitioner.
A special provision has been introduced by inserting section 5A by way
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of an amendment in the statute for temporary release of hardcore prisoners, which
is an exception to section 3 and 4 of the principal Act. Sub-section (1) of Section
5A provides for temporary release of a hardcore prisoner for attending the
marriage or death of close relations specified therein, for a period of 48 or 72 or 96
hours under police escort to be decided by the Superintendent of the Jail. Sub-
section (2) of Section 5A provides for temporary release or furlough of a hardcore
prisoner, who has completed five years imprisonment and has not been awarded a
death penalty, nor any major punishment by the Superintendent of Jail, which has
been judicially appraised by the concerned District and Sessions Judge. This
provision has two riders, the first is that while computing the period of five years,
a period of not more than two years spent as an under-trial shall be counted and
the second is that the temporary release is barred in case of violation of any
condition imposed during previous temporary release or furlough.
When examined in the light of the above provision, it is clear that the
petitioner is debarred from future temporary release or furlough. The petitioner
was released on parole for a period to four weeks for house repair on 26.11.2015
from District Prison, Karnal, but instead of surrendering on 25.12.2016, he
surrendered late by one day. As such, he violated the condition of temporary
release. On account of his overstay, the Superintendent Jail, District Prison,
Karnal, forfeited two days remission earned by the petitioner, which has been
judicially appraised by the District and Sessions Judge, Karnal, vide order dated
05.02.2016, Annexure R-1. Not only a punishment has been imposed on the
petitioner, but it has also been appraised by a judicial authority.
A Coordinate Bench of this Court Hemant alias Bunty versus State of
Haryana and others 2020(4) RCR (Criminal) 278, observed as under:
“The second proviso further clarifies it as it lays down that
if the prisoner, so released under the subsection, violates
any condition of temporary release, he shall be debarred
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from such release in future. Thus, it can safely be considered
that the said provision is for the hardcore prisoner who was
as such from the beginning of sentence after conviction as in
such case, if they violated any condition of temporary
release or furlough, they would be debarred forever from
temporary release in future.”
The release of a prisoner on parole or furlough is not a right, but a
concession granted to him under the statute, which is subject to the fulfillment of
the conditions prescribed therein. As the petitioner does not fulfill the conditions
laid down under the Act, he is not entitled to be released on parole.
There is yet another hurdle in the way of the petitioner. The petitioner
has suppressed the fact that besides conviction in FIR No. 94 dated 06.05.2009, he
stood convicted in two other criminal cases. The details of the convictions have
been noticed above. As the petitioner has approached the court with tainted hands
and has concealed material facts regarding his antecedents, is not entitled to any
relief.
The petition is, accordingly, dismissed.
(SUVIR SEHGAL)
15.03.2021 JUDGE
sheetal
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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