Himachal Pradesh High Court
Sumit Kumar vs State Of H.P. And Others on 7 March, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Neutral Citation No. ( 2025:HHC:5340-DB )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.926 of 2025
Date of decision: 07.03.2025.
Sumit Kumar .....Petitioner.
Versus
State of H.P. and others ....Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. Pankaj Sawant, Advocate.
For the Respondents : Mr. Rakesh Dhaulta, Additional
Advocate General and Ms.
Priyanka Chauhan, Deputy
Advocate General.
Tarlok Singh Chauhan, Judge (Oral)
The instant petition has been filed for grant of the
following substantive reliefs:
“i) That this Hon’ble Court may kindly be pleased to
issue writ in the nature of certiorari, thereby
quash and set aside Annexure P-2 dated
26.12.2024, in the interest of justice and fair play.
ii) That this Hon’ble Court may kindly be pleased to
issue writ in the nature of mandamus, thereby
directing the respondents to release the petitioner
on parole for the period of 42 days, in the facts
and circumstances of the present case.”
1
Whether the reporters of the local papers may be allowed to see the Judgment?Yes
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Neutral Citation No. ( 2025:HHC:5340-DB )
2. The respondents have placed on record the instructions
dated 06.03.2025, which go to indicate that the local police have not
recommended the case of the petitioner for grant of parole to the
petitioner because the victim’s mother, Smt. Ramkali, has objected
to the release of petitioner stating that he might threaten or attempt
to cause harm to her and her family. However, there is nothing on
record to substantiate such allegations.
3. Additionally, it is argued by the learned Additional
Advocate General that the petitioner is a hardened criminal as he
has been convicted and sentenced under Section 302 of IPC.
However, we find no force even in this contention. Merely because
the petitioner has been convicted once for a serious and heinous
offence does not make him as a hardened criminal, as has already
been held by the Hon’ble Supreme Court while dealing with object
of grant of parole in Asfaq vs. State of Rajasthan (2017) 15 SCC
55, the relevant observations whereof read as under:-
“11. There is a subtle distinction between parole and furlough. 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
3Neutral Citation No. ( 2025:HHC:5340-DB )
afford some relief to the prisoners in certain specified exigencies.
Such paroles are normally granted in certain situations some of
which may be as follows:-
(i) member of the prisoner’s family has died or is seriously ill or the
prisoner himself is seriously ill; or
(ii) the marriage of the prisoner himself, his son, daughter,
grandson, granddaughter, brother, sister, sister’s son or daughter
is to be celebrated; or
(iii) the temporary release of the prisoner is necessary for
ploughing, sowing or harvesting or carrying on any other
agricultural operation of his land or his father’s undivided land
actually in possession of the prisoner; or
(iv) it is desirable to do so for any other sufficient cause;
(v) parole can be granted only after a portion of sentence is
already served;
(vi) if conditions of parole are not abided by the parolee he may be
returned to serve his sentence in prison, such conditions may be
such as those of committing a new offence; and
(vii) parole may also be granted on the basis of aspects related to
health of convict himself.
15. A convict, literally speaking, must remain in jail for the period of
sentence or for rest of his life in case he is a life convict. It is in this
context that his release from jail for a short period has to be
considered as an opportunity afforded to him not only to solve his
personal and family problems but also to maintain his links with
society. Convicts too must breathe fresh air for at least some time
provided they maintain good conduct consistently during
incarceration and show a tendency to reform themselves and
become good citizens. Thus, redemption and rehabilitation of such
prisoners for good of societies must receive due weightage while
they are undergoing sentence of imprisonment.
17. From the aforesaid discussion, it follows that amongst the
various grounds on which parole can be granted, the most
important ground, which stands out, is that a prisoner should be
allowed to maintain family and social ties. For this purpose, he has
to come out for some time so that he is able to maintain his family
and social contact. This reason finds justification in one of the
objectives behind sentence and punishment, namely, reformation
of the convict. The theory of criminology, which is largely accepted,
underlines that the main objectives which a State intends to
achieve by punishing the culprit are: deterrence, prevention,
retribution and reformation. When we recognise reformation as
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one of the objectives, it provides justification for letting of even the
life convicts for short periods, on parole, in order to afford
opportunities to such convicts not only to solve their personal and
family problems but also to maintain their links with the society.
Another objective which this theory underlines is that even such
convicts have right to breathe fresh air, albeit for periods. These
gestures on the part of the State, along with other measures, go a
long way for redemption and rehabilitation of such prisoners. They
are ultimately aimed for the good of the society and, therefore, are
in public interest.
18. The provisions of parole and furlough thus, provide for a
humanistic approach towards those lodged in jails. Main purpose
of such provisions is to afford to them an opportunity to solve their
personal and family problems and to enable them to maintain their
links with society. Even citizens of this country have a vested
interest in preparing offenders for successful re-entry into society.
Those who leave prison without strong networks of support,
without employment prospects, without a fundamental knowledge
of the communities to which they will return, and without
resources, stand a significantly higher chance of failure. When
offenders revert to criminal activity upon release, they frequently
do so because they lack hope of merging into society as accepted
citizens. Furloughs or parole can help prepare offenders for
success.
19. Having noted the aforesaid public purpose in granting parole
or furlough, ingrained in the reformation theory of sentencing,
other competing public interest has also to be kept in mind while
deciding as to whether in a particular case parole or furlough is to
be granted or not. This public interest also demands that those
who are habitual offenders and may have the tendency to commit
the crime again after their release on parole or have the tendency
to become threat to the law and order of the society, should not be
released on parole. This aspect takes care of other objectives of
sentencing, namely, deterrence and prevention. This side of the
coin is the experience that great number of crimes are committed
by the offenders who have been put back in the street after
conviction.
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Neutral Citation No. ( 2025:HHC:5340-DB )
Therefore, while deciding as to whether a particular prisoner
deserves to be released on parole or not, the aforesaid aspects
have also to be kept in mind. To put it tersely, the authorities are
supposed to address the question as to whether the convict is
such a person who has the tendency to commit such a crime or he
is showing tendency to reform himself to become a good citizen.
20. Thus, not all people in prison are appropriate for grant of
furlough or parole. Obviously, society must isolate those who show
patterns of preying upon victims. Yet administrators ought to
encourage those offenders who demonstrate a commitment to
reconcile with society and whose behaviour shows that aspire to
live as law-abiding citizens. Thus, parole program should be used
as a tool to shape such adjustments.
21. To sum up, in introducing penal reforms, the State that runs the
administration on behalf of the society and for the benefit of the
society at large cannot be unmindful of safeguarding the legitimate
rights of the citizens in regard to their security in the matters of life
and liberty. It is for this reason that in introducing such reforms, the
authorities cannot be oblivious of the obligation to the society to
render it immune from those who are prone to criminal tendencies
and have proved their susceptibility to indulge in criminal activities
by being found guilty (by a Court) of having perpetrated a criminal
act. One of the discernible purposes of imposing the penalty of
imprisonment is to render the society immune from the criminal for
a specified period. It is, therefore, understandable that while
meting out humane treatment to the convicts, care has to be taken
to ensure that kindness to the convicts does not result in cruelty to
the society. Naturally enough, the authorities would be anxious to
ensure that the convict who is released on furlough does not seize
the opportunity to commit another crime when he is at large for the
time-being under the furlough leave granted to him by way of a
measure of penal reform.
22. Another vital aspect that needs to be discussed is as to
whether there can be any presumption that a person who is
convicted of serious or heinous crime is to be, ipso facto, treated
as a hardened criminal. Hardened criminal would be a person for
whom it has become a habit or way of life and such a person
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would necessarily tend to commit crimes again and again.
Obviously, if a person has committed a serious offence for which
he is convicted, but at the same time it is also found that it is the
only crime he has committed, he cannot be categorised as a
hardened criminal. In his case consideration should be as to
whether he is showing the signs to reform himself and become a
good citizen or there are circumstances which would indicate that
he has a tendency to commit the crime again or that he would be a
threat to the society. Mere nature of the offence committed by him
should not be a factor to deny the parole outrightly. Wherever a
person convicted has suffered incarceration for a long time, he can
be granted temporary parole, irrespective of the nature of offence
for which he was sentenced. We may hasten to put a rider here,
viz. in those cases where a person has been convicted for
committing a serious office, the competent authority, while
examining such cases, can be well advised to have stricter
standards in mind while judging their cases on the parameters of
good conduct, habitual offender or while judging whether he could
be considered highly dangerous or prejudicial to the public peace
and tranquility etc.
23. There can be no cavil in saying that a society that believes in
the worth of the individuals can have the quality of its belief
judged, at least in part, by the quality of its prisons and services
and recourse made available to the prisoners. Being in a civilized
society organized with law and a system as such, it is essential to
ensure for every citizen a reasonably dignified life. If a person
commits any crime, it does not mean that by committing a crime,
he ceases to be a human being and that he can be deprived of
those aspects of life which constitute human dignity. For a prisoner
all fundamental rights are an enforceable reality, though restricted
by the fact of imprisonment. {See-Sunil Batra (II) v. Delhi
Administration (1980) 3 SCC 488, Maneka Gandhi v. Union of
India and Another (1978) 1 SCC 248, and Charles Sobraj v.
Superintendent Central Jai, Tihar, New Delhi (1978) 4 SCC 104.}
24. It is also to be kept in mind that by the time an application for
parole is moved by a prisoner, he would have spent some time in
the jail. During this period, various reformatory methods must have
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been applied. We can take judicial note of this fact, having regard
to such reformation facilities available in modern jails. One would
know by this time as to whether there is a habit of relapsing into
crime in spite of having administered correctional treatment. This
habit known as “recidivism” reflects the fact that the correctional
therapy has not brought in the mind of the criminal. It also shows
that criminal is hardcore who is beyond correctional therapy. If the
correctional therapy has not made in itself, in a particular case,
such a case can be rejected on the aforesaid ground i.e. on its
merits.” (Underlining ours).
4. Accordingly, we deem it appropriate to allow this
petition. Ordered accordingly. The order rejecting the parole of the
petitioner vide order dated 26.12.2024(Annexure P-2) is quashed
and set aside. Further, we direct the respondents to release the
petitioner on parole for a period of 42 days. However, the same shall
be subject to his furnishing personal bond in the sum of
Rs.1,00,000/- with two local sureties of the like amount to the
satisfaction of the Superintendent Jail, Model Central Jail, Kanda,
District Shimla, H.P. The petitioner shall surrender before the
aforesaid Jail Superintendent immediately on expiry of parole. He
shall not leave the precincts of Village and Post Office Diyar A/P
Bhuttico Colony, Shamshi, Tehsil Bhunter, District Kullu, H.P. and
shall report every week to the Pradhan/Up-Pradhan/member of the
concerned Gram Panchayat.
5. However, before parting, it is made clear that the parole
granted to the petitioner shall be liable to be cancelled in case he
breaches any of the conditions of the parole order and/or creates law
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and order problems, which shall be treated as a negative factor for
consideration of his similar prayers in the future.
6. The instant petition is allowed in the aforesaid terms, so
also the pending application(s), if any.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
Judge
7th March, 2025.
(krt)