Judgment:
ORDER
Swatanter Kumar, J.
1. This is a petition under Section 482 of the Code of Criminal Procedure read with Articles 226/227 of the Constitution of India praying for issuance of a direction to the respondents to release the petitioner on parole under Section 3(1) (d) of the Haryana Good Conduct Prisoners Temporary (Release) Act, 1988 (hereinafter referred to as the Act).
2. The case of the petitioner is that he was sentenced to undergo five years rigorous imprisonment on 1-10-1992 by the Court of competent jurisdiction. The petitioner has been in jail for nearly three years back. The case of the petitioner was initiated and recommended by respondent No. 3 in this petition for grant of parole as the petitioner desired to carry out certain urgent repairs in the dwelling house situated in his native village Chadiwal, Tehsil and District Sirsa. However, the request for his parole was rejected by respondent No. 1 on 3-8-1994.
3. In the reply, it is stated on behalf of the State that the District Magistrate, Sirsa vide its order dated 28-3-1994 has declined the request of the petitioner for his release on parole. The reason given in the order dated 28-3-1994 is that the convict is undergoing sentence under T.A.D.A. and, therefore, his case cannot be recommended for his release on parole. In furtherance of this order. Chief Probation Officer vide his order dated 3-5-1994 informed the Superintendent Jail that on the report of the District Magistrate, Sirsa, the Additional Director General of Prisons Haryana, Chandigarh has rejected the parole release case of the convict.
4. Short question for determination in this case is whether the convict under TADA makes a class amongst itself so as to disentitle them forgetting the benefit of the provisions of the Act. Learned counsel for the petitioner has relied upon the judgment of this Court in Joginder Singh v. State of Punjab, reported as 1988 (2) RCR 548. After discussing in detail, the Court held as under :-
'A key to the scheme of the Act is provided by Section 6, where satisfaction of the State Government or the releasing authority is expressly limited to endangering security of the State and maintenance of public order. The expressions 'Security of State' and 'Public order' occur in Article 19(2) of the Constitution. These expressions have been the subject matter of Judicial Constitution and they have acquired a precise meaning. Thus, security of the State is endangered by crimes of violence, intended to over throw the Government, waging of war and rebellion against the Government, external aggression or war, but not by minor breaches of public peace or tranquillity, such as unlawful assembly, riot, affray, rash driving, promoting enmity between classes and the like (vide Ramesh Thappar v. State of Madras (1950 SCR 594): (51 Cri LJ 1514). The concept of 'public order' must be distinguished from the popular concept of Maw and order' and of 'security of the State'. They refer to three 'concentric circles'. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of the State (Vide Ram Manohar v. State of Bihar : 1966CriLJ608 . Hence, an activity which affects 'law and order' may not necessarily affect public order and an activity which may be prejudicial to public order may not necessarily endanger security of the State. The twin grounds of endangering security of State and public order may or may not be exhaustive of the grounds for refusing temporary release, but these grounds go a long way to suggest that grounds for refusal must be these and like, grounds.'
5. The Haryana Good Conduct Prisoners Temporary (Release) Act, 1988 is the Special Act. It deals with special class of people i.e. prisoners or convicts who are undergoing respective sentences in Jail. The purpose of provision of the Act indicates the legislative intention to take reformative steps to improve the life of the prisoners while they are undergoing the sentence and without completely cutting them off from the main stream of society, their social and homely life.
6. The learned counsel for the Stale has argued that the Slate had discretion to provide guidelines, lot-regulating the release of the detenues/prisoners on parole etc. No doubt, the State has the power to formulate guidelines in consonence with the provisions of the Act and to carry out its objects. (No guideline's have been brought to the notice of the Court which provide that the detenues, (under T.A.D.A. would be treated to be class in themselves which could be dis-entitled from claiming the benefits of this Act. In such cases the question will still remain if such instructions could be issued by the Government entirely prohibiting the benefit available to the detenues under the Act/provisions. This question docs not arise in the present case because no. such instructions/guidelines, formulated by the State, have been placed on record or brought to the notice of the Court.
7. In reply filed by the respondents on record there is no averment which would attract the exceptions provided to Section 6 of the Act. The mere fact that the petitioner has been convicted under T.A.D.A. by itself cannot become a ground for denying the benefits of the provisions of Sections 3 and or 4 of the Act to the prisoner/convict, so far Sections 3 and 4 stand as a valid piece of legislation. The accused enjoys a right of request for release on parole which can be denied by the respondents only in the circumstances postulated under Section 6 of the Act. A reasonable ground must exist and there should be a definite material before the authorities and upon due application of mind the authorities may consider the case of a prisoner as one falling within the exception of Section 6 of the Act. The question of release on parole cannot be dealt with in a mechanical manner, but has to be decided on the facts of each case, in consonance with the guidelines and keeping in view the object sought to be achieved by this Act.
8. The scope of Section 6 as aforestated is limited i.e. endangering security of State and maintenance of public order. It is difficult to say that every small problem or infraction of law having a penal section can be termed as a problem endangering maintenance of public order. The Supreme Court in the case Jaya Mala v. Home Secretary, Government of Jammu and Kashmir, : 1982CriLJ1777 . while commenting upon detention laws in relation to activities prejudicial to maintenance of public order, held as under:-
'But it is equally important to bear in mind that every minor infraction of law cannot be upgraded to the height of an activity prejudicial to the maintenance of public order. II every infraction of law having a penal sanction by itself is a ground for detention danger looms large that the normal criminal trials, and Criminals Courts set up for administering justice will be substituted by detention laws often described as lawless law.'
9. After an accused is found to be guilty by a Court of competent, jurisdiction, he is awarded adequate sentence is one aspect of the criminal jurisprudence. But providing an opportunity to an accused-prisoner to improve himself so as to enable him to walk in the normal stream of the society is other side of administration of justice. This is more so for the reason that the law-makers in their wisdom have chosen to enact such laws like this Act. The conduct of the prisoner during imprisonment is one of the grounds which is normally considered by the authorities and if the conduct of the accused in prison is good and there is no materiaal before the authorities so as to satisfy them that the case of the convict is not one which falls under the exceptions provided in Section 6 of the Act, then the authorities may not be justified in declining the benefit of Sections 3 and 6 to the accused only on the ground that the prisoner is a T. A. D. A. Convict. The submission of Mr. Bhupinder on behalf of the State that the power with the State in this behalf is absolute and is not open to judicial review cannot be accepted. To deny the benefit to a prisoner his case must be one which satisfies the basic requirements/ ingredients of Section 6 of the Act and such requirement must appear to be satisfied from the record itself. The Courts cannot go into the mind of the executive actions and it is a settled principle of law that the record must speak for itself. Scheme of the Act indicates that the mere guilt of an accused prisoner cannot by itself appear to be the criteria for denial or grant of the request for release on parole.
10. For the foregoing reasons discussed above. Annexure R/1 and Annexure R/2 are hereby quashed. The respondents are directed to reconsider the request of the petitioner in accordance with law and communicate the order to the petitioner within 6 weeks from today. The petitioner may also supply the copy of this order to the respondents. With these observations, the petition is disposed of.