No Acts & Articles mentioned in this case
High Court of H.P.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:
1
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
13
th
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.
“118/2014 dated
09-02-2014 u/s 451,
504, 506, 427 IPC, PS
Gagret
Kailash
Kumari W/O
Late Sh.
Desh Raj R/o
Kaloh, Tehsil
Amb, District
Una(HP).
Raj Kumar
Jaswal S/o
Sh. Ram
Kishan,
Caste
Rajput, R/O
Kaloh, Tehsil
Amb, District
Una(HP).
Pending with
the Ld. Court
ACJM-II, Amb
on
15-05-2014.
268/2014 dated
20-05-2014 u/s 279,
283, 504, 506 IPC, PS
Gagret
Munish
Sharma S/O
Sh. Bhaghi
Rath R/O
VPO Gagret,
Tehsil Amb,
District Una
(HP).
Raj Kumar
S/o Sh. Ram
Kishan, R/O
Kaloh, Tehsil
Amb, District
Una(HP) age
51 years.
Pending with
the Ld. Court
JMIC-II, Amb
from
10-07-2014.
378/2014 dated
12-06-2014 u/s 452,
323, 504, 506 IPC, PS
Gagret
Kailash
Kumari W/O
Late Sh.
Desh Raj R/o
Kaloh, Tehsil
Amb, District
Una(HP).
Raj Kumar
S/o Sh. Ram
Kishan,
Caste
Rajput, R/O
Kaloh, Tehsil
Amb, District
Una(HP), age
53 years.
Pending with
the Ld. Court
ACJM, Amb
from
08-09-2014.
4105/2014 dated
04-08-2014 u/s 325,
323 IPC, P.S. Gagret
Kanwar Rohit
Jaswal S/O
Sh. Raj
Kumar, R/O
Kaloh, Tehsil
Amb, District
Una (HP).
Raj Kumar
S/o Late Sh.
Ram Kishan,
Caste
Rajput, R/O
Kaloh, Tehsil
Amb, District
Una(HP), age
53 years.
Acquitted
due to
compromise
between the
both parties
in the Ld.
Court JMIC-II,
Amb on
20-09-2016.
581/2005 dated
03-05-2005 u/s 341,
Manohar Lal
S/O Sh. Sant
Raj Kumar
S/o Sh. Ram
Pending with
JMIC, Amb.
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323, 506, 427 IPC, PS
Gagret
Ram, Caste
Brahmin, R/O
Indra Nagar,
Gagret,
Tehsil Amb,
District Una
(HP).
Kishan,
Caste
Rajput, R/O
Kaloh, Tehsil
Amb, District
Una(HP).
615/2011 dated
23-01-2011 u/s 384,
506 IPC, PS Amb
Information
of Challani
Raj Kumar
@ Raju S/o
Late Sh. Ram
Kishan
Jaswal, R/O
Kaloh, Tehsil
Amb, District
Una(HP), age
50 years.
Information
of Challani.
728/85 dated 26-06-85
u/s 324, 325, 323, 34
IPC, PS Gagret
Dharam
Singh S/O
Sh. Sher
Singh Caste
Rajput, R/o
Kaloh,Tehsil
Amb, District
Una (HP),
age 35
years.
1. Raj Kumar
S/o Sh. Ram
Kishan,
Caste
Rajput, R/O
Kaloh, Tehsil
Ghanari,
District
Una(HP).
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).
Acquitted by
the Ld. Court
SDJM, Amb,
on
20-05-1987.
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8.30/2004 dated
16-02-2004 u/s 498 A,
323, 506 IPC, PS
Gagret
Sushma
Jaswal
W/O Sh. Raj
Kumar,
Caste
Rajput, R/O
Kaloh, Tehsil
Amb, District
Una (HP),
age 39
years.
Raj Kumar
S/o Sh. Ram
Krishan,
Caste
Rajput, R/O
Kaloh, Tehsil
Amb, District
Una(HP), age
41 years.
Acquitted by
the Ld. Court
ACJM, Amb,
on
10-12-2004.
9106/2005 dated
29-06-2005 u/s 452,
323, 506 IPC, PS
Gagret
Leela Devi,
W/O Late Sh.
Ram Kishan,
Caste
Rajput, R/O
W. No. 6,
Kaloh, Tehsil
Amb, District
Una (HP).
Raj Kumar
S/o Sh. Ram
Kishan,
Caste
Rajput, R/O
Ward No.6,
Kaloh, Tehsil
Amb, District
Una(HP).
Convicted
with fine to
Rs.1000/-
along with
one year
simple
imprisonment
by the Ld.
Court JMIC-II,
Amb on
22-12-2006.
10121/2006 dated
13-07-2006 u/s 306
IPC, PS Gagret
Raman
Kumari, W/O
Sh.
Sudarshan
Singh, Caste
Rajput, R/O
Kaloh, Tehsil
Amb, District
Una (HP),
age 47
years.
Raj Kumar
S/O Sh. Ram
Kishan,
Caste
Rajput, R/O
Kaloh, Tehsil
Amb, District
Una(HP).
Convicted
with fine to
Rs.10,000/-
along with
one year
rigorous
imprisonment
by the Ld.
Sessions
Judge, Una,
on
07-11-2008.
1128/2010 dated
24-02-2010 u/s 364,
342, 324, 323, 506,
34, 326 IPC, PS.
Gagret
Mohan Lal
S/O Sh.
Bakeel
Chand R/O
Pambra,
Tehsil Amb,
District Una
(HP).
1. Raj Kumar
S/O Sh. Ram
Kishan
Jaswal, Caste
Rajput, R/O
Kaloh, Tehsil
Amb, District
Una (HP),
age 45
years.
2. Sushma
Jaswal W/O
Sh. Raj
Kumar
Jaswal, R/O
Pending with
the Ld. Court
JMIC-II, Amb
from
30-04-2010.
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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.
1215/2011 dated
28-02-2011 u/s 323
IPC, PS Gagret
Chanan
Singh S/O
Sh. Ramu
Ram, R/O
Kaloh, Tehsil
Amb, District
Una (HP).
Raj Kumar
S/O Sh. Ram
Kishan
Jaswal @
Gorkha, R/O
Kaloh, Tehsil
Amb, District
Una (HP).
Acquitted
due to
compromise
between the
both parties
in the Ld.
Court JMIC-II,
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
26
th
June, 2020.
(krt)
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