Himachal Pradesh High Court
Case BriefsHigh Courts

   

Himachal Pradesh High Court: Vivek Singh Thakur, J. dismissed the petition filed under Sec 482 Criminal Procedure Code (‘CrPC') for extension of parole as the right remedy is under Article 226 of Constitution of India.

The instant petition was filed under Section 482 CrPC seeking extension of term of parole granted to the petitioner on medical grounds.

The Court noted that grant of parole to a convict/prisoner is governed by provision of H.P. Good Conduct Prisoners (Temporary Release) Act, 1968 and Rules framed thereunder.

The Court observed that omission or commission on the part of concerned authority in granting or rejecting the claim of a prisoner under H.P. Good Conduct Prisoners (Temporary Release) Rules, 1968 is an administrative action, but not an action governed by provisions of Code of Criminal Procedure or any other Criminal Law and therefore instead of filing petition under Section 482 CrPC, a petition under Article 226 of Constitution of India shall be maintainable.

The Court thus dismissed the petition with liberty to file a fresh comprehensive petition and directed the Authority not to take any coercive action till 15-07-2022.

[Mohd. Margoob v. State of HP, Criminal Misc. Petition (Main) No. 470 of 2022, decided on 21-06-2022]


Advocates who appeared in this case :

Vinod Kumar, Advocate, for the Petitioner;

Hemant Vaid, Advocate, for the Respondent.


*Arunima Boase, Editorial Assistant has reported this brief.

Canada SC
Case BriefsForeign Courts

Supreme Court of Canada: A full bench comprising, Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ unanimously ruled that imposing consecutive sentences under Section 745.51 of the Criminal Procedure Code, violates Section 12 of the Canadian Charter of Rights and Freedoms. It was observed that “Not only do such punishments bring the administration of justice into disrepute, but they are cruel and unusual by nature and thus contrary to s. 12 of the Charter. They are intrinsically incompatible with human dignity because of their degrading nature, as they deny offenders any moral autonomy by depriving them, in advance and definitively, of any possibility of reintegration into society.”

Facts and contentions of the case:

On January 27, 2019, Alexandre Bissonnette opened fire on the worshippers that were gathered in the Great Mosque of Québec for evening prayer. Six people were killed and five were seriously injured. He pleaded guilty to all charges against him, including six counts of first degree murder.

According to the Canadian Law, a person who has committed murder will be sentenced minimum to life imprisonment and would be eligible for a parole after 25 years of period of ineligibility.

The State pleaded for the imposition of Section 745.51 as the accused had committed multiple murders. This provision allows the periods without eligibility for parole for each murder conviction to be served back-to-back (consecutively). Bissonnette challenged the constitutional validity of the section. The trial court made an attempt to provide remedy for the provision by bear reading it and granting the courts to choose an additional period of ineligibility for 40 years before applying for parole. The court of appeal declared the provision unconstitutional and held that the accused serve a 25-year parole ineligibility period on each count before being able to apply for parole.

Observations made by the Supreme Court

While dismissing the appeal filed against this judgment of the Court of Appeal, the Supreme Court made the following observations:

  • Such punishments bring the administration of justice into disrepute, but they are cruel and unusual by nature and thus contrary to s. 12 of the Charter. They are intrinsically incompatible with human dignity because of their degrading nature, as they deny offenders any moral autonomy by depriving them, in advance and definitively, of any possibility of reintegration into society.
  • Sentences of imprisonment for life without a realistic possibility of parole may also have devastating effects on offenders, who are left with no incentive to rehabilitate themselves and whose incarceration will end only upon their death.
  • For the objective of rehabilitation to be meaningful, every inmate must have a realistic possibility of applying for parole, at the very least earlier than the expiration of the minimum ineligibility period of 50 years stipulated in the impugned provision for cases involving first degree murders.
  • Imposing consecutive 25 year parole ineligibility periods is unconstitutional must not be seen as devaluing the life of each innocent victim.

Everyone would agree that multiple murders are inherently despicable acts and are the most serious of crimes, with consequences that last forever. This appeal is not about the value of each human life, but rather about the limits on the state’s power to punish offenders, which, in a society founded on the rule of law, must be exercised in a manner consistent with the Constitution.

Along with the aforementioned observations, the court pointed out that the Parliament may not prescribe a sentence that negates the objective of rehabilitation in advance, and irreversibly, for all offenders. The penological objective is intimately linked to human dignity, that every individual has the capacity to reform and re-enter the society. In the light of this conclusion, the Court unanimously declared section 745.51 invalid from the time it was enacted in 2011. Resultantly, the law that existed before the date will continue to apply.

[R. v. Bissonnette, 2022 SCC OnLine Can SC 1, decided on May 27, 2022]

Case BriefsSupreme Court

Supreme Court: In a landmark ruling, the Division Bench of Dinesh Maheshwari* and Aniruddha Bose, JJ., reversed Delhi High Court’s judgment holding that the Presidential order banning benefit of parole and remission to the appellant will also disentitle him of benefit of furlough.

By a detailed judgment the Bench clarified differences between remission, parole and furlough. Opening that the High Court had misunderstood furlough for remission, the Bench expressed,

“We need not elaborate to say that depriving of even the concession of furlough and thereby taking away an incentive/motivation for good conduct would not only be counter-productive but would be an antithesis to the reformative approach otherwise running through the scheme of Rules of 2018.”

Factual Background

The appellant – a life convict whose death sentence was commuted by the President of India vide order dated 15-11-2012 – had preferred the instant appeal on being aggrieved by the Delhi High Court’s order, dismissing his writ petition and declining his prayer to grant furlough. The High Court had held that the appellant was not entitled to furlough owing to the conditions of the order issued by the President of India in mercy petition that the appellant’s death sentence be converted to the one of imprisonment for life with additional direction that he would remain in prison ‘for the whole of the remainder of his natural life without parole and there shall be no remission of the term of imprisonment’.

The High Court opined that that the appellant was not entitled to seek furlough because he was not entitled to remission of any kind. However, the contention of the appellant was that the aforesaid terms of the order dated 15-11-2012 were of no debarment, so far as his entitlement to furlough under the Delhi Prison Rules, 20181 was concerned.

Decision of Death Sentence

The appellant was sentenced to death for the offence under Section 302 of the Penal Code, 1860 on accusation that he caused the death of his step-mother, step-brother and step-sister by multiple knife-blows. Finding it to be a case falling in ‘rarest of the rare category’, the High Court as well as the Supreme Court had confirmed the sentence of death awarded to him.

Mercy Petition

When the curative petition filed by the appellant was dismissed, the appellant approached the President in a mercy petition to grant pardon and to suspend, remit or commute his sentence. By the order dated 15-11-2012, the President modified the sentence of death awarded to the one of imprisonment for life with the requirements that he would remain in prison for the whole of remainder of his natural life without parole and there shall be no remission of the term of imprisonment.

Law on Furlough

Furlough is defined in Section 2(h) of the Delhi Prison Act, 2000 as: –

“Furlough means leave as a reward granted to a convicted prisoner who has been sentenced to RI for 5 years or more and has undergone 3 years thereof”

The objectives of parole and furlough are set forth in Rules 1197 to 1200 of the Delhi Prison Rules, 2018; Rule 1199 states that furlough means release of a prisoner for a short period of time after a gap of certain qualified numbers of years of incarceration by way of motivation for maintaining good conduct and to remain disciplined in the prison. This is purely an incentive for good conduct in the prison. Therefore, the period spent by the prisoner outside the prison on furlough shall be counted towards his sentence.

Rule 1223 states following requirements to be eligible for furlough:

  1. Good conduct in the prison and should have earned rewards in last 3 Annual good conduct report and continues to maintain good conduct.
  2. The prisoner should not be a habitual offender.
  3. The prisoner should be a citizen of India.

The ideology behind granting furlough is that 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.

High Court Misunderstood Furlough for Remission

Rejecting the reasoning of the High Court that once it had been provided by the President that the appellant would remain in prison for whole of the reminder of his natural life without parole and without remission, all his other rights, particularly those emanating from good jail conduct, as available in the Rules, 2018 would stand foreclosed, the Bench stated that in the Rules, 2018, the eligibility requirement to obtain furlough is of ‘3 Annual good conduct reports’ and not ‘3 Annual good conduct remissions’.

The Bench opined that in the scheme of the Rules, 2018 it cannot be said that earning rewards is equivalent to earning remissions and even if he (the appellant) would spend some time on furlough, that will not come to his aid so as to seek remission because of the fact that he has to remain in prison for whole of the reminder of his natural life.

Difference between Parole, Remission and Furlough

Further, the Bench noted that the presidential order dated 15-11-2012 bars parole as also remission but significantly, there is no mention of the treatment of entitlement towards furlough. While differentiating between remission, parole and furlough, the Bench observed that parole is akin to temporary suspension of execution of sentence. There cannot be any temporary suspension of execution of sentence qua the appellant inasmuch as the sentence awarded to him has to run in perpetuity and during the whole of his natural life. Moreover, for parole, conduct is not a decisive factor.

However, in contradistinction to parole, in furlough, the prisoner is deemed to be serving the sentence inasmuch as the period of furlough is not reduced from actual serving period. And, the conduct is predominantly decisive of entitlement towards furlough. Thus, even if the appellant would be on furlough, he would be deemed to be serving the sentence for all time to come. The Bench opined that,

“…the High Court proceeded on the assumption that the matter was being considered for grant of remission and ‘consequently’ for grant of furlough under the Delhi Prison Rules, 2018. The Court was of the view that since the convict in question would not get remission, he would not be entitled to furlough. The Court assumed that remission was a prerequisite for furlough.”

Hence, the Bench held that the entitlement of furlough cannot be decided in the case of the present nature with reference to the question as to whether any remission would be available or not.

Noticing that the whole of the scheme of granting furlough is based on reformation and is an incentive for maintaining good conduct, the Bench held that even if the appellant is to remain in prison for the whole of remainder of his life, the expectations from him of good conduct in jail would always remain; and the lawful consequences of good conduct, including that of furlough, cannot be denied.

Verdict

In the above backdrop, the Bench concluded that since the appellant had 3 Annual good conduct reports in his favour, he could not be denied furlough with reference to the order dated 15-11-2012, as the said order could not be construed to take away the rights flowing from his maintaining good conduct; neither the requirements of his maintaining good conduct are whittled down nor the reformative approach and incentive for good conduct cease to exist in his relation.

Therefore, the Bench disapproved blanket denial of furlough to the appellant in the orders impugned, and directed the authorities concerned to decide the case of the appellant for grant of furlough in accordance with law. The impugned judgment and orders were set aside; and the case of the appellant for grant of furlough was restored for reconsideration of the Director General of Prisons, to be decided preferably within two months.

[Atbir v. State (NCT of Delhi), 2022 SCC OnLine SC 527, decided on 29-04-2022]


*Judgment by: Dinesh Maheshwari


Appearance by:

For the Appellant: Advocate Neha Kapoor

For the State: Additional Solicitor General S. V. Raju


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Rajasthan High Court: The Division Bench of Farjand Ali and Sandeep Mehta, JJ. allowed the petition and granted parole after considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India.

The facts of the case are such that the convict prisoner Nand Lal is serving the sentence awarded to him and has undergone imprisonment of around six years out of sentence of life imprisonment awarded to him including remission. Smt. Rekha, wife of the petitioner filed an application averring therein that conduct of his husband  had been exceedingly well in the jail premises and he was granted first parole by this Court for the period of 20 days which he availed satisfactorily and surrendered back to the prison on due date. It is averred in the application that she has not begotten any issue from their wedlock and thus, for want of progeny, she craves for 15 days emergent parole. The said application is pending consideration before the District Collector-cum-Chairman, District Parole Committee, Ajmer, however, no order has been passed therein till date. The instant writ petition has been preferred by convict prisoner Nand Lal through his wife Smt. Rekha seeking emergent parole under Rule 11 (1) (iii) of the Rajasthan Prisoners Release On Parole Rules, 2021 (hereinafter for short ‘the Rules of 2021’) on the ground of want of progeny.

The Court, however, instructed the police officials concerned to make an inquiry regarding family status of the convict-prisoner and place the report on record. The report stated that Smt. Rekha is legally wedded wife of the petitioner and she is residing at her matrimonial home along with her in-laws

The Court observed that having progeny for the purpose of preservation of lineage has been recognized through religious philosophies, the Indian culture and various judicial pronouncements. As mentioned above, the right of progeny can be performed by conjugal association; the same has an effect of normalizing the convict and also helps to alter the behavior of the convict prisoner. The purpose of parole is to let the convict to re-enter into the mainstream of the society peacefully after his release. The wife of the prisoner has been deprived of her right to have progeny whilst she has not committed any offence and is not under any punishment. Thus, denial to the convict-prisoner to perform conjugal relationship with his wife more particularly for the purpose of progeny would adversely affect the rights of his wife.

Right of Progeny 

  1. Religious Aspect:

As per Hindu philosophy, Garbhadhan, i.e. attaining the wealth of the womb is the first of the 16 sacraments. In Judaism, Christianity, and some other Abrahamic religions the cultural mandate includes the sentence “Be fruitful and multiply and fill the Earth.” The cultural mandate was given to Adam and Eve. The preservation of lineage is also greatly emphasized by the Islamic Shariah and the Cairo declaration of human rights in Islam also supported the protection of lineage in Islam.

  1. Social Aspect

There are four Purusharths, object of human pursuit which refer to four proper goals or aims of a human life. The four purushuarths are Dharma (righteousness, moral values) Artha (prosperity, economic values), Kama (pleasure, love, psychological values) and Moksha (liberation, spiritual values, self-actualization). When a convict is suffering to live in prison, he/she is deprived to perform the abovementioned purusharths, among them, 3 of four purusharths, i.e. Dharma, Artha and Moksha are to be performed alone, however, in order to perform/exercise/pursue the fourth Purushartha, i. e. Kama, the convict is dependent on his/her spouse in case he/she is married. At the same time, the innocent spouse of the convict is also deprived to pursue the same. In a case where the innocent spouse is a woman and she desires to become a mother, the responsibility of the State is more important as for a married woman, completion of womanhood requires giving birth to a child. Her womanhood gets magnified on her becoming a mother, her image gets glorified and becomes more respectful in the family as well in the society. She should not be deprived to live in a condition wherein she has to suffer living without her husband and then without having any children from her husband for no fault of her. Hindu philosophy also advocates the importance of pitra – rin, i.e. parental debt. Our lives are the consequence of the fact that ancestors have been carrying and forwarding the said pitra rin, it is because of this, life came to us and in order to maintain the continuity of life, we must pay off this debt.

  1. Legal Aspect

The Court relied on judgment Jasvir Singh v. State of Punjab, 2015, Cri LJ 2282 and observed that Article 21 of the Constitution guarantees that no person shall be deprived of his life and personal liberty except according to procedure established by law. It includes within its ambit the prisoners also.

The Court thus observed that the spouse of the prisoner is innocent and her sexual and emotional needs associated with marital lives are effected and in order to protect the same, the prisoner ought to have been awarded cohabitation period with his spouse.

The Court thus held “though there is no express provision in the Rajasthan Prisoners Release On Parole Rules, 2021 for releasing the prisoner on parole on the ground of his wife to have progeny; yet considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranted by the Constitution of India and while exercising extra ordinary power vested in it, this Court deem it just and proper to allow the instant writ petition.”[Nand Lal v. State, 2022 SCC OnLine Raj 678, decided on 05-04-2022]


Appearances:

For Petitioner(s) : Mr. K.R. Bhati

For Respondent(s) : Mr. Anil Joshi


Arunima Bose, Editorial Assistant has reported this brief.

High Court Round UpLegal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

Interesting picks from this week’s legal stories from High Courts to District Courts


Alimony


Whether husband is entitled to claim alimony under Section 25 of the Hindu Marriage Act, 1955? Bom HC decides

A conjoint reading of Sections 24 and 25 of the Hindu Marriage Act, 1955 would reveal that both the sections in the Act of 1955 are enabling provisions and confer a right on the indigent spouse to claim maintenance either pendente lite or in the nature of permanent alimony and maintenance.

Read full report here…


 Karta


 Daughters and widow of a deceased would inherit properties of deceased as tenants in common or joint tenants? Bom HC explains 

Mangesh S. Patil, J., expressed that, by virtue of Section 19 of the Hindu Succession Act, it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.

Read full report here…


Compassionate Appointment


Illegitimate child’s right to be considered for Compassionate appointment: Read what Chh HC says

Sanjay K. Agarwal, J., held that an illegitimate son would be entitled to consideration on compassionate ground and cannot be denied consideration on the ground that he is the illegitimate son of the deceased Government servant.

Read full report here…


Marriage Expenses


Can unmarried daughters claim expenses of marriage from their parents under the Hindu Adoptions and Maintenance Act, 1956? Chh HC addresses

While stating that, in Indian society, normally expenses are required to be incurred for pre-marriage and also at the time of marriagethe Division Bench of Goutam Bhaduri and Sanjay S. Agrawal, JJ., held that unmarried daughters have a right to claim expenses of marriage from their parents under the Hindu Adoptions & Maintenance Act, 1956.

Read full report here…


Maternity Leave


Can maternity leave benefits extend beyond the period when contractual period of an ad hoc employee comes to an end? Del HC analyses

In a claim of maternity benefit by a contractual employee, the Division Bench of Rajiv Shakdher and Talwant Singh, JJ., expressed that, The Maternity Benefit Act, 1961 Act is a social legislation that should be worked in a manner that progresses not only the best interest of the women-employee but also of the child, both at the pre-natal and post-natal stage.

Read full report here…


Strikes


Bar on Government servants to engage in strikes? Ker HC elaborates

While expressing that, it is the duty of the welfare Government to protect not only the citizens but to continue with, all the Government work as expected, the Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., directed that Government servants should be prevented from engaging in a strike.

Read full report here…


Evidentiary Value of Newspaper Reports


Newspaper reports are of no evidentiary value and Courts would be transgressing their well-settled limitation if cognizance were to be taken of such unsubstantiated and unverified reports

In a matter wherein, details were sought with regard to Supreme Court Collegium meeting held on 12-12-2018, Yashwant Varma, J., expressed that, newspaper reports are of no evidentiary value and Courts would be clearly transgressing their well-settled limitation if cognizance were to be taken of such unsubstantiated and unverified reports.

Read full report here…


Anand Marriage Act


State directed to take steps to frame and notify Rules for Registration of Sikh Marriages

The Division Bench of Sanjaya Kumar Mishra, ACJ. and Ramesh Chandra Khulbe, J. took up a PIL filed by the petitioner commanding the respondent State to notify the Rules under Anand Marriage Act, 1909 and also to issue guidelines to register the marriage of people of Sikh Community under the Anand Marriage Act, 1909.

Read full report here…


Bribes


Every Advocate is a Court officer and part & parcel of the justice delivery system: Madras HC found a Govt. Advocate demanding bribes at the cost of justice

The Division Bench of K. Kalyanasundaram and R. Hemalatha, JJ., expressed that, the Government advocate being the representative of the Government has to act in an honest manner. If he/she goes around with the intention to make money at the cost of justice, only chaos will prevail.

Read full report here…


Insolvency


Logix Insolvent? NCLT initiates insolvency proceedings against Logix City Developers

The Coram of Bachu Venkat Balaram Das (Judicial Member) and Narender Kumar Bhola (Technical Member) initiates insolvency proceedings against Logix City Developers due to default in payment.

Read full report here…


Custody Parole


Merely because an accused is a Muslim, governed by personal laws, can be debarred from availing rights under Juvenile Justice (Care and Protection of Children) Act, 2000? Delhi Court answers

In a matter for grant of custody parole, Dharmender Rana, ASJ-02, held that, merely because the accused is Muslim and governed by personal laws, he cannot be debarred from availing rights conferred upon him by Juvenile Justice (Care and Protection of Children) Act, 2000.

Read full report here…

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has formulated “broad, general” principles governing rules for granting parole and furlough, holding that parole and furlough are distinct in nature and that although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough.

Interpreting the Bombay Furlough and Parole Rules, made pursuant to Section 59 of the Prisons Act 1894, the Court noticed that the same do not confer a legal right on a prisoner to be released on furlough.

“The grant of furlough is regulated by Rule 3 and Rule 4. While Rule 3 provides the eligibility criteria for grant of furlough for prisoners serving different lengths of imprisonment, Rule 4 imposes limitations. The use of the expression “may be released” in Rule 3 indicates the absence of an absolute right. This is further emphasised in Rule 17 which states that said Rules do not confer a legal right on a prisoner to claim release on furlough. Thus, the grant of release on furlough is a discretionary remedy circumscribed by Rules 3 and 4 extracted above.”

The principles laid down by the Court are:

  • Furlough and parole envisage a short-term temporary release from custody;
  • While parole is granted for the prisoner to meet a specific exigency, furlough may be granted after a stipulated number of years have been served without any reason;
  • The grant of furlough is to break the monotony of imprisonment and to enable the convict to maintain continuity with family life and integration with society;
  • Although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough;
  • The grant of furlough must be balanced against the public interest and can be refused to certain categories of prisoners.

Important Rulings on the difference between Furlough and Parole

State of Maharashtra v. Suresh Pandurang Darvakar, (2006) 4 SCC 776

While both parole and furlough are temporary releases from confinement, parole is granted only for a specific purpose. A prisoner is entitled to apply for furlough once he has served the minimum years of sentence as stipulated in Rule 3.

The “furlough” and “parole” have two different purposes. It is not necessary to state the reasons while releasing the prisoner on furlough, but in case of parole reasons are to be indicated in terms of Rule 19. But release on furlough cannot be said to be an absolute right of the prisoner as culled out from Rule 17. It is subject to the conditions mentioned in Rules 4(4) and 6. Furlough is allowed periodically under Rule 3 irrespective of any particular reason merely with a view to enable the prisoner to have family association, family and social ties and to avoid ill-effect of continuous prison life. Period of furlough is treated as a period spent in the prison. But Rule 20 shows that period spent on parole is not to be counted as remission of sentence. Since the furlough is granted for no particular reason, it can be denied in the interest of society; whereas parole is to be granted only on sufficient cause being shown.

State of Haryana v. Mohinder Singh, (2000) 3 SCC 394

“… when a prisoner is on parole his period of release does not count towards the total period of sentence while when he is on furlough he is eligible to have the period of release counted towards the total period of his sentence undergone by him.”

Asfaq v. State of Rajasthan, (2017) 15 SCC 55

A parole can be defined as conditional release of prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporarily on some basic grounds. In that eventuality, it is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies.

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.

Key differences highlighted in the judgment are:

  • Both parole and furlough are conditional release.
  • Parole can be granted in case of short-term imprisonment whereas in furlough it is granted in case of long-term imprisonment. Duration of parole extends to one month whereas in the case of furlough it extends to fourteen days maximum.
  • Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons.
  • For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment.
  • The term of imprisonment is not included in the computation of the term of parole, whereas it is vice versa in furlough.
  • Parole can be granted number of times whereas there is limitation in the case of furlough.
  • Since furlough is not granted for any particular reason, it can be denied in the interest of the society.

[State of Gujarat v. Narayana, 2021 SCC OnLine SC 949, decided on 20.10.2021]

_________________________________________________________________________________________________________

Counsels:

For State of Gujarat: Tushar Mehta, Solicitor General

For Respondent: Advocate Sanjiv Punalekar


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsHigh Courts

Rajasthan High Court: Mahendar Kumar Goyal, J. allowed the petition and sets aside the impugned order.

The facts of the case are such that the petitioner was convicted by the POCSO Court under Sections 376, 366 and 5/6 of the Protection of Children from Sexual Offences Act, 2012 i.e. POCSO Act. The instant writ is filed praying to seek a grant of first regular parole.

Counsel for the petitioner submitted that the petitioner has served more than 5 years 1 month and 26 days and the acquired eligibility for grant of first regular parole under Rule 9 of the Rajasthan Prisoners Act, 1958.

Counsel for respondents opposed the prayer stating apprehension of danger to life and liberty.

The Court observed that the petitioner has earned eligibility for grant of first regular parole under Rule 9 of the Rules 1958. The local police have not recommended his release on first regular parole. The purpose of parole is to facilitate family ties being maintained which cannot be permitted to be frustrated by the respondents on flimsy grounds.

The court thus quashed the impugned order and grants the parole for 20 days on furnishing personal bond.

In view of the above, petition was allowed.[Suraj v. State of Rajasthan, 2021 SCC OnLine Raj 301, decided on 25-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Arvind Singh Sangwan, J., reduced the penalty of Rs 2 lakh to Rs 5000 considering old age of the petitioners who stood surety to one Pawan Kumar, a life convict, for releasing him on parole as the life convict failed to surrender before the jail authorities on the stipulated date. The Court observed,

The petitioners were simpleton elderly persons and they did not have adequate means to pay the said penal amount.

Pawan Kumar, son of the petitioners was convicted for life imprisonment. The District Magistrate had released him on three weeks’ parole on surety bonds of Rs 2 Lakh each filed by both the petitioners to ensure that Pawan will surrender back on 24-07-2019, however, he failed to surrender on the said date. Pursuant to which, the DM had imposed the penalty of Rs 2 Lakh each, on the petitioners and further directed that the said amount be recovered as arrears of land revenue.

Being aggrieved, the petitioners preferred an appeal before the Court of Sessions and pleaded that there are not in a position to pay such a heavy penalty as they are having meager source of income. The Additional Sessions Judge, vide order dated 15-12-2020, reduced the penalty amount to Rs 50,000 each with a direction that the same be deposited within one month of passing the order, failing which the order shall automatically be recalled and appeal would be deemed to be dismissed, meaning thereby, the order of DM, of imposing penalty of Rs 2 Lakh, would revive.

Noticing the fact that Pawan Kumar was arrested in some other case and was lodged in jail which had rendered him incapable to surrender before the jail authorities on 24-07-2019. They stood surety to said convict Pawan on humanitarian grounds, who had already undergone 13 years of the actual sentence and was granted parole of three weeks. The Court observed,

Both the petitioners were petty old farmers, having meager land holdings as petitioner 1 was aged about 58 years and petitioner 2 was aged about 60 years. They did not had any independent source of income.

Citing the case of Gopal Kaur v. State of Punjab, 2010 SCC OnLine P&H 3751, the Court set aside the penalty of Rs 2 Lakh each, as imposed by the DM as well as the conditional order passed by the Additional Sessions Judge, directing the petitioners to pay Rs 50,000.

The amount of penalty was reduced to Rs.5,000. The petitioners were further granted three months’ time to deposit the reduced penalty. [Urmila Devi v. State of Haryana, 2021 SCC OnLine P&H 244, decided on 04-02-2021]


Kamini Sharma, Editorial Assistant has put this story together

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal J., set aside the impugned order having no substantial reason for rejecting parole of a female convict having committed offence under Section 302 of Penal Code, 1860.

The factual matrix of the case is that petitioner’s application for grant of leave on parole under Rules 4 and 6 of the Chhattisgarh Prisoners Leave Rules, 1989  was rejected by the District Magistrate vide the impugned order only on the ground that the Superintendent of Police has objected on petitioner’s release on parole and the offence which she has committed under Section 302 IPC is a serious offence and except that, no such reason has been assigned and hence the impugned order is under challenge in the present petition.

Counsel for the petitioner submitted that no substantial reason has been assigned by the District Magistrate for rejecting the parole application and hence the impugned order is liable to be set aside.

Counsel for the State submitted that District Magistrate has clearly recorded a finding that petitioner’s release on parole would be detrimental to the public interest as she has murdered her husband which is a very serious crime, therefore, she is not entitled to be released on parole.

High Court relied on Rakesh Shende v. State of Chhattisgarh, Writ Petition (Cr) No. 29 of 2016 decided on 18-11-2016 wherein it was held that Rule 4 of the Chhattisgarh Prisoners Leave Rules, 1989 provides for conditions of leave. Rule 6 provides for Sanctioning Authority for first leave and a Note has also been appended to it. Rules 4 and 6 of the Rules of 1989 state as under:

“…4. Conditions of Leave. The prisoners shall be granted leave under subsection (1) of Section 31A of the Act on the following conditions, namely:

(a) He fulfills the conditions laid down in Section 31A of the Act;

(b) He has not committed any offences in jail between the date of application for leave and receipt of the order of such leave;

(c) The releasing authority must be satisfied that the leave may be granted without detriment to the public interest;

(d) He gives in writing to the Releasing Authority the place or places which he intends to visit during the period of his leave and undertake not to visit any other place during such period without obtaining prior permission of the Releasing Authority in that behalf; and

(e) He should furnish security to the satisfaction of the Releasing Authority if such security is demanded by the Releasing Authority.

 6. Sanctioning Authority for first leave. (a) If the District Magistrate, after making such enquiry as he may consider necessary, is satisfied that the request for grant of leave can be granted without detriment to public interest, he shall issue to the Superintendent a duly signed and sealed warrant in Form ‘A’ to the prisoner. The District Magistrate shall enter in the warrant the number of days that will be required for the journeys by the shortest practicable route to and from the place at which during his leave the prisoner proposes to reside or if he proposes to visit more than one place, the fartherest place from the Jail which he proposed to visit.

Note: The District Magistrate is responsible for the proper carrying out of these instructions. He may of course, consult the District Superintendent of Police on the advisability of granting the leave. The Superintendent of Police should also obtain the opinion of the Gram Panchayat of the village, where the prisoner resided before conviction and send to the District Magistrate along with his report. But the responsibility for the action is that of the District Magistrate. He should use his discretion and should refuse to grant leave only in cases in which he is satisfied that release is fraught with danger to the public safety….”

The Court observed that petitioner’s application for grant of leave on parole was rejected on the ground that the offence committed under Section 302 of the IPC is a serious offence and the Superintendent of Police and the concerned Gram Panchayat have objected to petitioner’s release on parole.

The Court held that the offence committed by the petitioner though is a serious offence yet as per the law, if her release is not detrimental to the public interest and it fulfils the requirement for the grant of parole, she is entitled to be released on parole as she is in jail for more than three years and ten months and her conduct is shown to be good. In light of the aforesaid observations, parole was granted.

In view of the above, impugned order set aside and petition disposed off.[Sarita Rajwade v. State of Chhattisgarh, 2020 SCC OnLine Chh 481, decided on 29-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and P. Velmurugan, JJ., while addressing the present petition observed that, Court fails to ascertain how women consent to get married to life convicts.

The present petition was filed by the wife of the life convict who got married to him when he got married when he came out on parole. The petitioner sought leave for 30 days for her husband to make arrangements for the livelihood of her family members.

S.G. Vedha Priyadharshini, Counsel appeared for the Petitioner and R. Prathap Kumar, Additional Public Prosecutor appearing for the Respondents.

Probation Officer in its report recommended 30 days’ leave to the convict which was sought by the petitioner.

Taking into consideration the above-stated report along with earlier orders of the Court, the bench is inclined to grant 30 days’ leave to the convict.

Accordingly, the life convict was directed to be released on 01-10-202 without a police escort and the Convict was directed to surrender before the prison authorities on 30-10-2020.

However, the petition was kept pending as the Court had impleaded National Commission for Women and the State Commission for Women to device a mechanism by which it is ascertained as to whether women are getting married to life convicts on their own accord or by force or coercion.

Hence, the Court raised the query:

“Whether the women marrying the life convicts are examined by the State Commission for Women or National Commission for Women to ascertain as to whether the willingness of the marriage or sign for the acceptance of the marriage has been obtained from the women?”

Bench noted that in many cases, women get married to the life convicts and this Court fails to find out as to how the consent of the women has been obtained. The rights of women have to be safeguarded. Usually, no girl will come forward to marry a life convict.

Nowadays, it is seen that it is difficult for a normal man to get married as modern girls are putting so many conditions for marriage. When that is so, it is unbelievable or surprising to see that a woman on her own volition giving consent to marry a convicted person for a life without husband’s companionship, love and care, which will amount to a violation of human rights.

National Commission for Women filed the response and the State Commission for Women’s response is still awaited. [Saibunisha v. State, 2020 SCC OnLine Mad 2733, decided on 30-09-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: After the Court  had, on March 23, 2020, directed each State/Union Territory to constitute a High Powered Committee to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate, the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and MM Shantanagoudar, JJ has further directed that no prisoner shall be released if he/she has suffered from coronavirus disease in communicable form hereafter.

The said direction came after Attorney General KK Venugopal submitted before the Court that the release and transportation of the prisoners would itself result in transmission of coronavirus from prisons or detention centres to locations where the released prisoners have to reach.

Directions on release of prisoners suffering from Coronavirus

  • No prisoner shall be released if he/she has suffered from coronavirus disease in communicable form hereafter. For this purpose, appropriate tests will be carried out.
  • If it is found that a prisoner who has been released is suffering from coronavirus after the release, necessary steps will be taken by the concerned authority by placing him/her in appropriate quarantine facility.
  • Transportation shall be done in full compliance of the Rules and Norms of social distancing. For instance, no transportation shall be allowed in excess of half or one fourth capacity of the bus as may be found appropriate to ensure that the passengers who have been found to be free of coronavirus disease are at a distance from each other.
  • The order dated 23.03.2020 shall be applicable to correctional homes, detention centres and protection homes.

On compulsory release of prisoners by all States/UTs

On being informed that the State of Bihar has not found it appropriate to release the prisoners for complete absence of any patient suffering from coronavirus within the prisons and also for the reason that the prisons are not overcrowded, the Court made it clear that it has not directed the States/ Union Territories to compulsorily release the prisoners from their respective prisons.

It was brought to the Court’s notice that a prisoner who was “accused” of suffering from coronavirus was murdered in Bihar. The Court, however, said,

“The purpose of our aforesaid order was to ensure the States/Union Territories to assess the situation in their prisons having regard to the outbreak of the present pandemic in the country and release certain prisoners and for that purpose to determine the category of prisoners to be released.”

On release of prisoners declared as foreigners under the Foreigners Act, 1946

The Court accepted the prayer that the period of three years for release of prisoners declared as foreigners be reduced to one year so that detenues who have completed 7 more than two years may be release.

The Court had, on  10.05.2019, in Supreme Court Legal Services Committee v. Union of India directed that the release of detenues who have served long period of detention in the detention centres awaiting their deportation is concerned, we are of the view that detenues who have completed more than three years may be released.

The Court, modifying it’s earlier order, held,

“we see no reason why the period should not be reduced from three years to two years, that is to say, the prisoners or detenues who have been under detention for two years shall be entitled to be released on the same terms and conditions as those laid down in the aforesaid order dated 10.05.2019, except that they shall not be required to furnish a bond in the sum of Rs.1,00,000/- (Rupees one lakh only). Instead they shall be required to furnish a bond in the sum of Rs.5,000/- (Rupees five thousand only) with two sureties of the 8 like sum of Indian citizens.”

[IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS, 2020 SCC OnLine SC 365, order dated 13.04.2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: The bench of SA Bobde, CJ and L. Nageswara Rao, J has asked the Union of India to ensure that all the prisoners having been released by the States/Union Territories are not left stranded and they are provided transportation to reach their homes or given the option to stay in temporary shelter homes for the period of lockdown.

The said direction of the Court came after amicus curiae Senior advocate Dushyant Dave submitted before the Court that the prisoners who have been released according to the guidelines framed by the High Powered Committees in various States are stranded because they have no means to reach their homes or their places of residence. The Court, hence, directed that

“the Union of India may issue appropriate directions under the Disaster Management Act, 2005 or any other law for the time being in force.”

The Court, further, directed the States/Union Territories to ensure through Directors General of Police to provide safe transit to the prisoners who have been released so that they may reach their homes.

“They shall also be given an option for staying in temporary shelter homes during the period of lockdown.”

The Court had, on March 23, 2020, directed each State/Union Territory to constitute a High Powered Committee to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. It had said,

Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled.”

[IN RE: CONTAGION OF COVID 19 VIRUS IN PRISONS, 2020 SCC OnLine SC 356 , order dated 07.04.2020]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Rajiv Narain Raina, J. allowed the petition to grant furlough to the petitioner and quashed the impugned order passed by the District Magistrate disallowing the same. 

The instant petition was made with the prayer that the petitioner be granted the benefit of furlough for a period of two weeks to enable him to meet his family members. The petitioner was convicted under Section 302 of the Penal Code.

The application of the petitioner for furlough was rejected on the grounds that the petitioner had recently availed parole period from 12.06.2019 to 28.06.2019. The District Magistrate, Karnal refused to recommend furlough to the petitioner to meet his family. The Divisional Commissioner, Karnal Division, Karnal by applying the provisions of Section 6 (1) of the amended Act of 2012 of the Haryana Temporary Good Conduct Prisoners (Temporary Release) Act, 1988 supported the stance of the District Magistrate.

The Court observed that there was no report in the impugned order stating that the release of the petitioner on furlough would involve a breach of the security of the State or he would pose a danger to society or create law and order problems. The court also noted that the petitioner had already undergone about 10 years and 5 months as under trial and after his conviction. Moreover, the petitioner had already availed the benefit of parole in the month of June, 2019 and he surrendered in time after the parole period was over.

After considering the aforementioned facts and taking into account the aforesaid relevant consideration, the court deemed it appropriate to grant the benefit of furlough to the petitioner for a period of two weeks.

In view of the above-noted facts, the instant petition was allowed with the direction that the District Magistrate concerned, would impose such conditions as may be required to secure the presence of the petitioner in jail after the period of furlough, is over and done with and the temporary release would not be misused. [Deepak Sharma v. State of Haryana, 2019 SCC OnLine P&H 2089, decided on 19-10-2019]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Gurvinder Singh Gill, J. dismissed the petition on the grounds that the petitioner could be considered again for premature release only after he underwent the requisite period of imprisonment in terms of the policy of Premature Release dated 12-4-2002.

The petitioner approached the Court seeking quashing of the order whereby the case of the petitioner for his premature release had been rejected. The petitioner was convicted for having committed offences punishable under Sections 302/149, 148 IPC and Section 25 of Arms Act whereby he was sentenced to undergo imprisonment.  The petitioner had preferred an appeal challenging his conviction which was dismissed vide judgment dated 20-4-2009.

The premature release of the petitioner was declined by the State of Haryana since his case fell under Para 2(a)(xi), (xii) & (xiv) which corresponds to danger to public safety and heinous crime of the policy. The petitioner was involved in eight other criminal offences of murder, attempt to murder, dacoity, Arms Act, conspiracy, etc. He had been a parole jumper twice and thus he was considered to be a danger to public safety.

Also, his case should be considered after 14 years of actual sentence including under trial period provided that the total period of such sentence including remission is not less than 20 years. The petitioner had completed twelve years one month and twenty-eight days of actual sentence including under trial period.

The learned counsel for the petitioner submitted that his case was squarely covered under policy dated 12-4-2002 issued by Government of Haryana which was applicable to the petitioner.

The learned State counsel submitted that the petitioner has remained involved in as many as 9 cases, which indicated that the petitioner was a habitual offender, thus, disentitling him for any benefit of premature release. It has further been submitted that the petitioner had also committed two jail offences regarding which FIR was registered.

High Court held that the convict could not claim his premature release as a matter of right and it is only if his case is squarely covered under the policy in existence at the time of conviction of the accused that he may be considered for his premature release. Such concession of premature release would only be extended to the convict keeping in view various factors including his conduct, behavior, antecedents and the likelihood of breach of peace in the eventuality of his release, etc. Further as per Para 4 of the policy dated 12-4-2002, the conduct during the last 5 years from the date of his eligibility for consideration of a premature release would be considered. The petitioner having been involved in the offence under Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 in the year 2012 was disentitled to be considered during the next 5 years thus the impugned order rejecting the claim of the petitioner was justified. As such, the Court found no infirmity in the impugned order.

In view of the above-noted facts, the instant petition was dismissed and the recommendation of the State Level Committee against the premature release of the petitioner would be reconsidered after completion of 14 years actual sentence and 20 years total sentence as per policy dated 12-04-2002.[Parvesh v. State of Haryana, 2019 SCC OnLine P&H 1760, decided on 18-09-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Manoj Kumar K. Tiwari, J. contemplated a petition where the prisoner had sought parole from the Court citing personal reasons.

In the instant petition the prisoner was incarcerated for 8 years and now had applied for parole for a period of 2 months, so that he can repair his ancestral house which is allegedly dilapidated. He had stated that his house was in a dilapidated condition and may fall anytime, it was further alleged that none of the other members of the family were in a position to get it repaired. He had further stated that he had submitted applications to the District Magistrate seeking parole; however, every time, he was denied parole merely on the basis of apprehension that he may jump parole.

The Court relied on Inder Singh v. State, (1978) 4 SCC 161, where the Supreme Court had held that, “if the behavior of these two prisoners’ shows responsibility and trustworthiness, liberal though cautious, parole will be allowed to them so that their family ties may be maintained and inner tensions may not further build-up. After every period of one year, they should be enlarged on parole for two months…” Another similar case note by the Court was in Devi v. State of Delhi, 1996 (36) DRJ 545, where the Court had held that, “Release on parole is a wing of reformative process and is expected to provide an opportunity to the prisoner to transform himself into a useful citizen.

The Court observed that, the decision in Inder Singh’s case was a message of compelling force and relevance to the prison pathology. A logical consequence of this decision was that parole had become an integral part of our criminal justice. The Court stated that “regardless of the crime a man may commit, he still is a human being and has human feelings also.” Therefore the nature and length of a sentence or the magnitude of the crime committed by the prisoner are not relevant for the purpose of grant of parole.

It was further observed that, ‘in construing the question of grant of parole to a prisoner, the Government in the scheme of the prison administration must take a constructive and purpose-oriented approach, and exercise its beneficent jurisdiction wisely. In such matters, the representation made by the prisoner must be construed liberally and not technically so as to frustrate or defeat the therapeutic treatment, hospital setting and correctional goals.’

The Court while granting parole also held that Article 21 of the Constitution is the jurisdiction root for this legal liberalism of parole.[Tejpal Singh v. State of Uttarakhand, 2019 SCC OnLine Utt 847, decided on 02-09-2019]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sandeep Mehta and Abhay Chaturvedi, JJ. accepted a writ petition for parole and directed the convict-petitioner for parole of twenty days.

In the present case, the convict petitioner was serving life imprisonment term at the Open Air Camp at Bikaner wherein his first parole writ petition was accepted and was granted the same by the present Court vide order dated 14-02-2019. However, due to financial constraints, owing to poor family condition, the convict could not avail the facility of parole as there was no person who could be entrusted as a surety for the same.

Additional Advocate General representing the State, Farzand Ali, submitted a family status report of the convict which did not indicate that any of the family members has any immovable property in their name.

The High Court upon perusal of pieces of evidence, facts and circumstances placed on record, accepted the writ petition and directed the convict-petitioner to be released on first parole for twenty days.[Sonu v. State, 2019 SCC OnLine Raj 1404, decided on 10-07-2019]

Case BriefsHigh Courts

Gujarat High Court: The Bench of V.P. Patel, J., allowed the application filed for temporary bail under Section 439 of the Code of Criminal Procedure to release the applicant-accused on temporary bail on the ground of medical treatment of the son of the applicant as he was injured by cow. 

The facts of the case were that the applicant-accused’s son was injured which was proven by the medical report submitted with the application. The father and uncle of the applicant were also in jail. The other brother of the applicant was enlarged on bail but on the condition of not entering into the territory of the district. Therefore, he was not in a position to take care of the son of the applicant. While opposing the application, the respondent vehemently submitted that the applicant-accused was involved in a murder case and the sister of the deceased who was an eye-witness of the murder case was also killed by the associates of the present applicant. 

The Court stated that the object of the parole is to enable the inmate to maintain continuity with his family life and deal with the family matter; to save the inmate from the evil effects of continuous prison life; to enable the inmate to maintain constructive hope and active interest in the life. Thus taking into account the fact that the applicant was not released on temporary bail since more than two and a half years and considering the pitiable condition of the son of the applicant the application was allowed. [Parmar Jigneshbhai Raghubhai v. State of Gujarat, 2019 SCC OnLine Guj 843, decided on 14-05-2019]

Case BriefsHigh Courts

Madras High Court: A Division Bench comprising of C.T. Selvam and S. Ramathilagam, JJ. ordered parole of two weeks to a life-convict in light of exercising his conjugal rights.

In the present case, the petitioner is the wife of the life convict, who sought leave for her husband for the purpose of the exercise of conjugal rights. Petitioner’s husband is an undertrial prisoner and is a convict under two cases, on the file of Principal District and Sessions Court, Pudukottai, jail authorities are said to be precluded from granting leave to detenu under Section 35 of Tamil Nadu Suspension of Sentence Rules, 1982.

While placing reliance on the decision of Madras High Court, Madurai Bench in Meharaj v. State, 2018 1 HCC (Mad) 150 in which it was stated that:

“Conjugal visit leads to strong family bonds and keep the family functional rather than the family becoming dysfunctional due to prolonged isolation and lack of sexual contact.”;

the High Court considered the above-stated decision to be appropriate and concluded to grant leave to the petitioner’s husband for the purpose of conjugal visit for a period of two weeks subject to certain conditions. [P. Muthumari v. Home Secretary,2018 SCC OnLine Mad 3304, dated 26-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J. allowed a petition for extension of parole subject to the conditions of, inter alia, furnishing a personal bond with one surety.

The petitioner sought grant of parole already granted to him by the Competent Authority. The parole was granted to enable the petitioner to file a special leave petition which was further extended for a period of two weeks. the ground taken by the petitioner for seeking grant of parole was that his wife was suffering from a skin disease who was admitted in a hospital and they had two minor children. The status report filed verified the fact stated by the petitioner. The Additional Public Prosecutor for the State submitted that mother of the petitioner lived in the vicinity. The petitioner submitted that his mother being a senior citizen was not in a position to take care of the minor children and attend to his wife.

The High Court, keeping in view the facts and circumstances of the case, granted the petitioner parole for a period of three weeks. However, it imposed the conditions of furnishing a personal bond of Rs 4000 with one surety of the like amount. Also, the petitioner was directed to maintain peace and good behaviour during the period of his release and remain at his residential address. The petition was disposed of in terms above. [Raj Kumar v. State,2018 SCC OnLine Del 12193, dated 31-10-2018]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Single Judge Bench comprising of V.K. Bist, J. disposed of a petition while giving certain directions in regard to granting of parole to be decided on a priority basis, before the application becomes infructuous.

In the present case, the facts of the case state that, the petitioner was languishing in jail and was convicted and completing his sentence for the offence committed. During the time petitioner was serving sentence, his father passed away. Petitioner had moved his application for custody parole before District Magistrate, Haridwar which was rejected and he was unable to attend the last rites of his father. Petitioner being the eldest son in his family had to perform the last rites of his father for which he again moved his application for parole to the District Magistrate, Haridwar, but yet again his application was rejected. Superintendent, District Jail had moved petitioner’s report to the District Magistrate, yet the parole of 6 hours to attend terahveen of his father was not accepted. Due to the stated action of the District Magistrate, Haridwar, petitioner sent his petition to the High Court.

The High Court, on noting petitioner’s grievance, stated that it is a pious duty of a son to give funeral fire to his parents and perform last rituals of his parents. If a son is deprived of this right, the mental agony suffered by him can nowhere be expressed in words. “The inhumane conduct of the then District Magistrate, Haridwar is condemned.”

Therefore, the Court while appreciating the petitioner’s concern about other detainees stated that when a detainee seeks parole or custody parole to perform some rituals to be performed on his part towards his family, the authority concerned should immediately take appropriate decision for grant of parole/ custody parole, depending on the facts of the case. In such a situation, the parole or custody parole should not be denied. [Raju v. State of Uttarakhand,2018 SCC OnLine Utt 924, order dated 24-10-2018]