Crl.
Writ Petition No.2132 of 2012 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl.
Writ Petition No.2132 of 2012 (O&M) Date of decision : 22.05.2014 Manoj .....Petitioner versus State of Haryana & Ors..Respondents CORAM:- HON'BLE Ms.JUSTICE ANITA CHAUDHRY Present: Mr.V.S.Rana, Advocate for the petitioner.
Mr.G.S.Sandhu, Addl.
AG Haryana.
-- ANITA CHAUDHRY, J.
The instant criminal writ petition under Article 226 of the Constitution of India has been filed for quashing the impugned order dated 04.12.2012(Annexure P-5) passed by the Commissioner Hisar Division, Hisar.
The petitioner has further prayed for directions for his release on four weeks' agricultural parole, so as to enable him to carry out agricultural pursuits.
The brief facts are that the petitioner was tried in FIR No.444 dated 04.10.1993, under Sections 302 and 307 read with Section 34 IPC, Police Station City, Bhiwani and was convicted to life imprisonment.
The petitioner was released on emergency parole for a period of three weeks upto 30.11.1998, but he did not surrender in time.
Accordingly, a case under the Haryana Good Conduct Prisoners (Temporary Release) Act, 2007 Sharma Jiten 2014.05.26 17:27 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Writ Petition No.2132 of 2012 2 (for brevity, 'the Act') was registered against him.
He was arrested by the police on 03.09.2004 after a overstay of 5 years and 10 months.
The petitioner was again granted the concession of parole for four weeks on 05.04.2006 and was directed to surrender on 04.05.2006.
This time also, the petitioner failed to surrender and after an overstay of 03 yeaRs.11 months and 08 days, he was arrested on 13.04.2010.
The case of the petitioner is that he was entitled for parole after two years of his surrender/ arrest and he cannot be debarred for all times to come.
The petitioner applied for emergency parole to get his children admitted, which was rejected on 16.05.2012.
The petitioner challenged the same by filing criminal writ petition No.1446 of 2012, wherein directions were given to the jail authorities that in case the petitioner applied for parole, the same would be decided on the basis of his subsequent conduct and in case there was a favourable report by the jail Superintendent.
The petitioner accordingly applied for agricultural parole, which was declined on similar grounds.
The case put forth by the petitioner now is that, his case has been rejected on the ground that he was a hard-core prisoner, but his case did not fall in the category of hard-core prisoner and he was entitled to concession of parole and he was ready to furnish heavy sureties.
It was pleaded that though he was involved in some more cases, but he has undergone sentence in three cases and in other cases he has been acquitted.
On notice, the State has filed the reply and it was Sharma Jiten 2014.05.26 17:27 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Writ Petition No.2132 of 2012 3 pleaded that the parole case of the petitioner was initiated on the request of the petitioner and the District Magistrate had conducted an enquiry and did not agree with the report of Tehsildar.
On the basis of that report, the Superintendent of Police noted that the petitioner was undergoing sentence in case FIR No.444 dated 04.10.1993, under Section 302 IPC, Police Station City, Bhiwani and there were five other cases registered against him, the details of which are contained in Annexure R-1.
Apart from that, the petitioner had come out on parole on two occasions and had misused the concession on both the occasions and over-stayed the period of about 05 years and 10 months in the fiRs.instance and about 03 years and 11 months on second occasion.
He was arrested by the police after great efforts and there was danger to the complainant party.
It was pleaded that the petitioner case falls under the Act and he is a hardcore prisoner and his temporary release was not recommended.
I have considered the submissions made by learned counsel for the petitioner as well as learned State counsel.
Learned counsel for the petitioner has referred to Rule 10(II) of the Act and has urged that where a convict overstays 30 days or more, then his case cannot be entertained before two years from the date of surrender/ arrest and the period of two years has lapsed.
Learned Counsel for the petitioner has relied upon the decision of this Court renders in Karan Singh versus State of Haryana, Crl.
Writ Petition No.2747 of 2011, decided on 17.01.2012 and Daya Kishan @ Ashok versus State Sharma Jiten 2014.05.26 17:27 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Writ Petition No.2132 of 2012 4 of Haryana & ORS.Crl.
Writ Petition No.180 of 2012, decided on 06.08.2012 and has contended that in an identical situation, this Court has directed the authorities to reconsider the case of the petitioners therein, without pressing the ground of overstay.
He prayed for issuance of directions to the authorities to pass orders afresh on the request of the petitioner.
The State counsel, on the other hand, has opposed the prayer.
He has relied upon the decision rendered by Division Bench of this Court in Ajay Jadeja @ Janak versus State of Haryana & ORS.Crl.
Writ Petition No.2104 of 2012, decided on 14.12.2012.
It has been contended that the Division Bench has considered the amendment in Section 5-A of the principal Act and the petitioner is not entitled to any concession.
It was also urged that the request for release on agricultural parole was made in December 2012, which otherwise has now become redundant.
It has not been disputed before this Court that the petitioner is serving life imprisonment in case FIR No.444 dated 04.10.1993, registered at Police Station City, Bhiwani.
It is not disputed that the petitioner was granted parole for the fiRs.time on 19.10.1998.
It was a three weeks' parole, but the petitioner failed to surrender and there was overstay of 05 years and 10 months.
After that the petitioner was released on four weeks' parole on 05.04.2006, but the petitioner failed to surrender and was arrested on 13.04.2010 after overstay of about 03 years and 11 months.
Sharma Jiten 2014.05.26 17:27 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Writ Petition No.2132 of 2012 5 The limited issue that now arises is, whether directions can be issued for the release of the petitioner on temporary parole, despite misuse of the concession of parole earlier on two occasions, when the total period of absence is over 9 yeaRs.In Ajay Jadeja's case (supra) the Division Bench had examined Section 5-A and its applicability to the prisoners convicted prior thereto.
The Division Bench had observed that the concession of temporary parole could only be granted where prisoner fulfilled the conditions and it was not a vested right and the case of premature release was entirely on a different footing.
Paras 9 to 11 of the judgment are reproduced for ready reference:- 9.
In the present case, it has not been disputed before us that the petitioner is involved in many heinous crimes.
He does fall under the definition of `hardcore prisoner' and on 30.9.2010, the date on which the petitioner was convicted, he was involved in many other cases.
During the last yeaRs.several incidents have occurred, where the `hardcore prisoneRs.involved in many criminal cases, when temporarily released, have committed serious offences during that period.
Keeping in view the said factual position, vide notification dated October 01, 2012, Section 5A has been inserted in the Principal Act, providing that a `hardcore prisoner' shall not be released on temporary basis, and he may only be allowed to attend the marriage of his child, grand child or sibling; or death of his grand parent, parent, grand parents-in-laws, parent-in-laws, sibling, spouse or child, and that too under the armed police escort, for a period of forty eight hours to be decided by the concerned Sharma Jiten 2014.05.26 17:27 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Writ Petition No.2132 of 2012 6 Superintendent Jail.
In this case, the application for temporary release of the petitioner was moved after insertion of the said amendment and the jail authorities declined to entertain the same on the ground that in view of Section 5A inserted in the Principal Act, the petitioner is not entitled to be released on temporary basis to meet his ailing wife or for her treatment.
Therefore, in our opinion, the authorities were fully justified in not entertaining the application made on behalf of the petitioner for his temporary release.
10.
The judgments, relied upon by learned counsel for the petitioner are not applicable in the present case.
In State of Haryana and others v.
Jagdish (supra).the issue of pre-mature release of a convict was in question.
In this regard, it was observed by the Hon'ble Supreme Court that case of the convict for his pre-mature release is to be considered on the basis of the instructions/rules existing on the date of conviction and the said vested right could not have been taken away on the basis of the subsequent policy restricting the right of pre- mature release, while observing that the State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for pre-mature release would be considered after serving the sentence, prescribed in the short sentencing policy existing on that date.
There is a difference between pre- mature release and temporary release.
Pre-mature release of a convict is a vested right whereas the temporary release is a concession and not a vested right.
Therefore, the said decision would not help the petitioner.
The case of Bhola Ram (supra) is with Sharma Jiten regard to grant of remission under the Punjab Grant of 2014.05.26 17:27 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Writ Petition No.2132 of 2012 7 Remission of Punishment Policy, 2010.
It was held in that case that the said benefit is to be granted prospectively and not retrospectively.
The said policy was held to be applicable prospectively and not retrospectively.
Therefore, the said decision has no bearing on the issue involved in the present case.
11.
The test to determine whether a particular amendment would operate prospective or retrospective depends upon the question whether it affects vested right of a person.
No prisoner has a vested right to get the benefit of temporary release on parole.
It is a concession, which is given to a prisoner on fulfilling certain conditions.
If on the date of making an application for grant of temporary release, a prisoner fulfills all the conditions applicable in his case, he can be considered for such concession for a limited period.
The petitioner, being a hardcore prisoner is not entitled for the said concession.
He cannot be granted this concession merely because he was convicted prior to insertion of Section 5A in the Principal Act.
In case of a hardcore prisoner, who is involved in many serious crimes, liberal approach cannot be adopted.
The petitioner is involved in several cases.
He was granted parole for three weeks on 19.10.1998, but the petitioner failed to surrender and when he was arrested by the police, there was overstay of 05 years and 10 months.
After that the petitioner was released on four weeks' parole on 05.04.2006, but this time also he failed to surrender and was arrested on 13.04.2010 after overstay of about 03 years and 11 months.
He misused the concession of parole on both the occasions and was arrested by Sharma Jiten 2014.05.26 17:27 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Writ Petition No.2132 of 2012 8 the police.
He is a hardcore prisoner.
In view of this, the jail authorities had rightly declined to entertain his application for parole.
There is no scope for interference.
The criminal writ petition is dismissed.
May 22, 2014 (ANITA CHAUDHRY) Jiten JUDGE Sharma Jiten 2014.05.26 17:27 I attest to the accuracy and integrity of this document High Court Chandigarh