Present: Mr. V S Rana Advocate Vs. Manoj Alias Pannu ........ Petitioner - Court Judgment

Crl.

Writ Petition No.240 of 2014 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl.

Writ Petition No.240 of 2014 Date of decision: 02.04.2014 Manoj alias Pannu .......Petitioner Versus State of Haryana and others .......Respondents Coram: Hon'ble MRS.Justice Rekha Mittal -.- Present: Mr.V S Rana, Advocate for the petitioner Ms Loveleen Dhaliwal Singla, Sr.DAG, Haryana -.- 1.

Whether Reporters of local papers may be allowed to see the judgment?.

2.

To be referred to the Reporter or not?.

3.

Whether the judgment should be reported in the Digest?.

Rekha Mittal, J.

The instant petition under Article 226 of the Constitution of India has been filed for issuance of directions to the respondents to grant six weeks agriculture parole to the petitioner by setting aside order dated 20.03.2013 passed by respondent No.3.

Counsel for the petitioner submits that Manoj @ Pannu (petitioner) was involved in FIR No.136 dated 10.08.2005 registered in Police Station Civil Lines Bhiwani, District Bhiwani for offence under Sections 307, 120-B, 34, 216, 109 of the Indian Penal Code (in short, 'IPC') and 25 of the Arms Act.

He was convicted and sentenced for rigorous Bimbra Mohan Lal 2014.04.04 18:02 I attest to the accuracy and integrity of this document Chandigarh Crl.

Writ Petition No.240 of 2014 2 imprisonment for a period of ten yeaRs.The appeal preferred by the petitioner against his conviction and sentence is pending in this Court.

The petitioner was also involved in FIR No.193 dated 22.10.2004 under Sections 147, 148, 307 IPC and 25 of the Arms Act, registered in Police Station Civil Lines Bhiwani and sentenced to rigorous imprisonment for a period of ten yeaRs.He has been released on bail on 21.05.2009 by this court being a juvenile.

The petitioner was also involved in FIR No.461 dated 16.12.2008 under Sections 148, 149, 307, 302 IPC registered in Police Station City Hansi, but he has been acquitted of the charges in the said case.

It is argued that the application of the petitioner for grant of agriculture parole was rejected on the ground that he falls in the category of 'hardcore prisoneRs.and committed a jail offence being found in possession of cellphone in Jail premises on 21.05.2009.

The petitioner was awarded punishment for that offence by the then Superintendent of Jail as he was kept separate for 45 days under para 612 (8) of the Punjab Jail Manual.

It is argued with vehemence that once the petitioner has been convicted for his alleged misconduct of keeping a cellphone in his possession, he cannot be punished for the second time on that ground by rejecting his prayer for grant of agriculture parole.

Another submission made by counsel is that the amendment in the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 subsequent to conviction of the petitioner cannot be given effect retrospectively to deprive him of his right to be released on parole in view of law in force at the time of his conviction.

Counsel for the respondents, in line with averments made in reply Bimbra Mohan Lal 2014.04.04 18:02 I attest to the accuracy and integrity of this document Chandigarh Crl.

Writ Petition No.240 of 2014 3 filed by Shamsher Singh Dahiya, Superintendent Jail, Central Jail, Hisar on behalf of the respondents, has submitted that the Haryana Good Conduct Prisoners (Temporary Release) amended Act 2012 and 2013 was notified on October 01, 2012 and October 10, 2013 and as a consequence of the amendment, Section 5-A has been inserted in the Principal Act which provides that notwithstanding anything contained in Sections 3 and 4, a hardcore prisoner shall not be released on temporary basis who has been detected of using cellphone or in possession of cell phone/SIM card inside the jail premises.

It is further submitted that the case of the petitioner falls within the category of hardcore prisoneRs.therefore, he is not entitled to be released on parole and his prayer for the said relief has been rightly declined by the competent authority.

I have heard counsel for the parties and perused the records.

Counsel for the petitioner does not dispute that the petitioner falls under the definition of hardcore prisoner.

The main contention of the petitioner is that provision of Section 5-A, which is inserted in the Principal Act by the amending Act vide Notification dated 01.10.2012, is not applicable to the petitioner because he was convicted prior to insertion of the said provision in the Principal Act.

The issue is no longer res integra in view of judgment passed by the Division Bench of this Court in Ajay Jadeja @ Janak v.

State of Haryana and others (decided on 14.12.2012).A relevant extract from para 11 of the judgment reads as follows:- “11.

The test to determine whether a particular amendment would operate prospective or retrospective depends upon the question whether it Bimbra Mohan Lal 2014.04.04 18:02 I attest to the accuracy and integrity of this document Chandigarh Crl.

Writ Petition No.240 of 2014 4 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.”

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In this view of the matter, the petitioner cannot be heard to say that the amended provision of Section 5-A cannot be made applicable in his case to deny him benefit of temporary release on parole.

It is pertinent to note that Section 5-A inserted by amending Act, 2012 was subject matter of challenge by way of Public Interest Litigation initiated through Civil Writ Petition No.15333 of 2013, which was decided by this Court on 05.12.2013/22.03.2014.

The said writ petition was disposed of by this Court without any further directions, but with the observations that the Court expect the State of Haryana to observe the matter for some period of time and thereafter re-examine whether given its experience, such a clause putting a blanket ban on under trial period being considered for purposes of furlough in heinous crimes ought to be continued or not.

The view in this behalf can be had after a period of six months.

Bimbra Mohan Lal 2014.04.04 18:02 Keeping in view the above, I find myself unable to accept the I attest to the accuracy and integrity of this document Chandigarh Crl.

Writ Petition No.240 of 2014 5 submissions made by counsel for the petitioner that the petitioner is entitled to the claimed relief by setting aside order dated 20.03.2013.

As a result, the petition is dismissed.

However, nothing stated in this order shall prejudice the right of the petitioner to seek temporary release on parole, in case an amendment is made in the relevant Act in the future.

(Rekha Mittal) Judge 02.04.2014 mohan Bimbra Mohan Lal 2014.04.04 18:02 I attest to the accuracy and integrity of this document Chandigarh