High Court of Himachal Pradesh · 2008

Mr. Tarlok Chauhan, Advocate has strenuously argued that the order dated 31st January, 2008 is not sustainable in the eyes of law. He also contended that the order dated 31st January, 2008 is contrary to the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act,

1968. He has also heavily relied upon the judgment of this Court reported in Lall Chand versus State of H.P. and another, ILR 1984 H.P. series-

The learned Additional Advocate General has supported the order dated 31st January, 2008. I have heard the learned counsel for the parties and have also perused the pleadings carefully. What emerges from the above enumerated facts is that the petitioner(cid:146)s case for parole was duly considered and was sanctioned on 12th September, 2006 (Annexure P-1). The Superintendent of Police, Modern Central Jail, Nahan was informed of this decision on 13th September, 2006. The petitioner had produced the surety amounting to Rs. 20,000/- to facilitate his release on parole. It was only on 17th October, 2006 that one Sh. Mehar Singh had lodged a compliant followed by another complaint by Sh. Lal Chand and Kedar Singh dated

31.10.2006. The matter was got investigated from the agency of the office of the Superintendent of Police, Sirmaur. It appears that Superintendent of Police, Sirmaur in his report has shown his reservation against the release of the petitioner on parole on the basis of the alleged threat perception apprehended by Sh. Mehar Singh and his family members. The decision was conveyed by the Additional District Magistrate, Sirmaur on 18.12.2007 to the Additional Director General (Jails). The text of this letter has already been reproduced hereinabove. It is only on the basis of 4 this commutation dated 18.12.2007 that the decision dated 31.1.2008 has been arrived at by the respondents denying the parole to the petitioner. The case of the petitioner has been processed and the parole was sanctioned to the petitioner on 12th September, 2006. It pre-supposes that all the parameters/guidelines prescribed under the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 had been gone into by the respondents while sanctioning the parole.

However, it is only on the basis of complaint dated 31.10.2006, as noticed above, that the matter was got inquired afresh by the Superintendent of Police, Sirmaur. I am of the considered opinion that once the case of the petitioner was sanctioned on 12th September, 2006, the same could not be rejected on 31st January, 2008 merely on the ground that the family members of the victim were apprehending threat to their lives. The question whether the parole can be refused only on the ground that there could be law and order problem and the petitioner could commit heinous crime has been gone into by this Court in depth in Lall Chand versus State of H.P. and another 1984 ILR HP Series-231. Their Lordships have held as under: (cid:147)The distinction between the concepts of (cid:147)public order(cid:148) and (cid:147)law and order(cid:148) is clearly drawn by a series of decisions of the highest Court (See : Ram Manohar V. State of Bihar, AIR 1966 SC 740, Arun Ghosh V. State of Vest Bengal, AIR 1970 SC 1228, Wasi Uddin Ahmed v.

District Magistrate, Aligarh, AIR 1981 SC 2166 and Ashok Kumar v. Delhi Administration, AIR 1982 SC 1143). In the leading decision in Ram Manohar(cid:146)s case, Hidayatullah, J., as he then was, speaking for himself and Bachawat, J., succinctly explained the meaning of the words (cid:147)public order(cid:148) in contra-distinction to the expression (cid:147)law and order(cid:148). The learned Judges pointed out that breach of the peace does not lead to public disorder. The contravention of law always affects 5 order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is not the same as disturbances which subverts the public order. The learned Judges went on to observe that to appreciate the extent and scope of three distinct concepts, namely, (cid:147)law and order(cid:148), (cid:147)public order(cid:148) and (cid:147)security of State(cid:148), it would be necessary to draw three concentric circles, the largest of them representing (cid:147)law and order(cid:148), the next representing (cid:147)public order(cid:148) and the smallest representing the (cid:147)security of State(cid:148).

An act may affect law and order but not public order just as an act may affect public order but not the security of State. The true distinction between the areas of (cid:147)public order(cid:148) and (cid:147)law and order(cid:148) lies not merely in the nature or quality of the act but in the degree and extent of its reach upon the society. Acts similar in nature but committed in different context and circumstances might cause different reactions. In one case, it might affect specific individual only and, therefore, problem of law and order, while in another, it might affect public order. The clear distinction made between the concepts of (cid:147)public order(cid:148) and (cid:147)law and order(cid:148) in the decision in Ram Manohar(cid:146)s case has been consistently followed and it is in the light of the tests evolved in that decision that the provisions of Section 6 of the Act and Rule 3 of the Rules are required to be implemented.

(cid:148) It is thus evident from the judgment of this Court in Lall Chand case that it is the responsibility of the State to maintain the law and order. If the reasoning of the State that the petitioner on his release could harm the victim(cid:146)s family is accepted, in that eventuality, no convict could be released on parole under the Act. The proper course, as noticed by this Court, in (cid:147)Lall Chand(cid:146) case (supra) is not to reject the request for temporary release outrightly but to keep surveillance over the prisoner 6 during the period of his temporary release and to invoke the power conferred by rule 4 in appropriate cases, if an occasion therefor arises. This Court in (cid:147)Lall Chand(cid:148) case has laid down certain guidelines, which are bound to be followed by the authorities concerned while considering the application of the convicts for parole. In the present case, the respondents have not taken into consideration the law laid down by this Court in Lall Chand case, which has resulted in refusing of parole of the petitioner though granted on 13th September, 2006.

It was a fit case where the petitioner is required to be released on parole for a period of 28 days but with a rider that it will be open to the police to keep and maintain the surveillance on the activities of the petitioner during the parole period. In view of the observations made hereinabove, the writ petition is allowed. The impugned order dated 31.1.2008 is quashed and set aside. In normal circumstances, this court would have directed the respondents to reconsider the case of the petitioner afresh, but taking consideration the peculiar facts and circumstances of the case, including the fact that the case of the petitioner has already been considered and he was sanctioned parole by the competent authority on 12th September, 2006, the respondents are directed to release the petitioner on parole within 7 days for a period of 28 days after completing all the codal formalities. The respondents can also impose upon the petitioner further restriction not to interact directly or indirectly with the members of the victim(cid:146)s family. There shall be no order as to costs. July 11, 2008 *awasthi* (Rajiv Sharma ), J.