Rakesh Kumar v. State of H.P. & Ors.

I have heard Ms Sheetal Vyas, learned counsel for the petitioner, and Mr Prashant Sen, learned Deputy Advocate General, for the respondent/State.

4. Ms Sheetal Vyas, learned counsel for the petitioner, submitted that respondent No. 2 erred in rejecting the petitioner’s application for parole on the ground that the 4 petitioner’s release was dangerous to the security of the area. The application could only have been rejected on the ground specified in the Prisoners’ Act, and the Rules framed thereunder. The nature of the offence is not a relevant consideration for declining parole. Hence, she prayed that the present petition be allowed and the petitioner be released on parole.

5. Mr Prashant Sen, learned Deputy Advocate General, for the respondent/State, submitted that the District Authorities had not recommended the grant of parole to the petitioner because his release on parole would adversely affect the security of the area. Therefore, he prayed that the present petition be dismissed

6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

7. It was laid down by the Hon’ble Supreme Court in Asfaq v. State of Rajasthan, (2017) 15 SCC 55: (2018) 1 SCC (Cri) 390: 2017 SCC OnLine SC 1092, that parole grants an opportunity to the convict to maintain his links with society. Convicts must breathe fresh air for at least some time. The parole should not be denied to a convict if he maintains good conduct during 5 incarceration and shows a tendency to reform himself. It was observed at page 60: - “10. In the first instance, it would be necessary to understand the meaning and purpose of the grant of parole. It would be better understood when considered in contrast with furlough. These terms have been legally defined and judicially explained by the courts from time to time.

11. There is a subtle distinction between parole and furlough. A parole can be defined as the 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 the parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporary on some basic grounds. In that eventuality, it is to be treated as a mere suspension of the sentence for the time being, keeping the quantum of sentence intact. Release on parole is designed to 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) a member of the prisoner's family has died or is seriously ill, or the prisoner himself is seriously ill; (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 6 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 the sentence is already served. (vi) if conditions of parole are not abided by, the parolee 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 the health of the convict himself.

12. Many State Governments have formulated guidelines on parole in order to bring out objectivity to the decision- making and to decide whether parole needs to be granted in a particular case or not. Such a decision in those cases is in accordance with framed. Guidelines of some of the States stipulate two kinds of the guidelines parole, namely, custody parole and regular parole. “Custody parole” is generally granted in emergent circumstances, like: (i) death of a family member; (ii) marriage of a family member; (iii) serious illness of a family member; or (iv) any other emergent circumstances.

13. As far as “regular parole” is concerned, it may be given in the following cases: (i) serious illness of a family member; (ii) critical conditions in the family on account of the accident or death of a family member; (iii) marriage of any member of the family of the convict; 7 (iv) delivery of a child by the wife of the convict if there is no other family member to take care of the spouse at home; (v) serious damage to the life or property of the family of the convict, including damage caused by natural calamities; (vi) to maintain family and social ties; (vii) to pursue the filing of a special leave petition before this Court against a judgment delivered by the High Court convicting or upholding the conviction, as the case may be.

14. Furlough, on the other hand, is a brief release from 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.

15. A convict, literally speaking, must remain in jail for the period of the sentence or the 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, the redemption and rehabilitation of such prisoners for the good of society must receive due weightage while they are undergoing a sentence of imprisonment.

16. This Court, through various pronouncements, has laid down the differences between parole and furlough, a few of which are as follows: (i) Both parole and furlough are conditional releases. 8 (ii) Parole can be granted in case of short-term imprisonment, whereas furlough is granted in case of long-term imprisonment. (iii) Duration of parole extends to one month, whereas in the case of furlough, it extends to fourteen days maximum. is granted by (iv) Parole the Divisional Commissioner, and furlough is granted by the Deputy Inspector General of Prisons. (v) For parole, a specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment. (vi) The term of imprisonment is not included in the computation of the term of parole, whereas it is vice versa in furlough. (vii) Parole can be granted a number of times, whereas there is a limitation in the case of furlough. (viii) Since furlough is not granted for any particular reason, it can be denied in the interest of society. (See State of Maharashtra v. Suresh Pandurang Darvakar [State of Maharashtra v. Suresh Pandurang Darvakar, (2006) 4 SCC 776: (2006) 2 SCC (Cri) 411] and State of Haryana v. Mohinder Singh [State of Haryana v. Mohinder Singh, (2000) 3 SCC 394: 2000 SCC (Cri) 645].)

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 can maintain his family and social contact. This reason finds justification in one of the objectives behind sentence and punishment, namely, the reformation of the convict. The theory of criminology, which is largely accepted, underlines that the main objectives which a 9 State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting out even the life convicts in order to afford for short periods, on parole, opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with society. Another objective that this theory underlines is that even such convicts have the right to breathe fresh air, albeit for short periods. These gestures on the part of the State, along with other measures, go a long way towards the redemption and rehabilitation of such prisoners. They are ultimately aimed at the good of society and, therefore, are in the public interest.

18. The provisions of parole and furlough, thus, provide for a humanistic approach towards those lodged in jails. The main purpose of such provisions is to afford 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 interests have 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 10 the crime again after their release on parole, or have the tendency to become a threat to the law and order of 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 a great number of crimes are committed by the offenders who have been put back on the street after conviction. Therefore, while deciding 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 a tendency to reform himself to become a good citizen.

20. Thus, not all people in prison are appropriate for the 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 they aspire to live as law-abiding citizens. Thus, the parole programme 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 matters of life and liberty. It is for this reason that in introducing such reforms, the authorities cannot be oblivious of the obligation to 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 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 11 taken to ensure that kindness to the convicts does not result in cruelty to society. Naturally enough, the authorities would be anxious to ensure that the convict 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 whether there can be any presumption that a person who is convicted of a serious or heinous crime is to be, ipso facto, treated as a hardened criminal. The hardened criminal would be a person for whom it has become a habit or way of life, and such a person 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 given 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 society. The mere nature of the offence committed by him should not be a factor to deny the parole outright. Wherever a person convicted has suffered long time, he can be granted incarceration for a temporary parole, irrespective of the nature of the 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 offence, 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 tranquillity, etc. 12

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 the recourse made available to the prisoners. Being in a civilised society organised with law and a system as such, it is essential to ensure 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 (2) v. State (UT of Delhi) [Sunil Batra (2) v. State (UT of Delhi), (1980) 3 SCC 488: 1980 SCC (Cri) 777], Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] and Charles Sobraj v. Supt., Central Jail [Charles Sobraj v. Supt., Central Jail, (1978) 4 SCC 104: 1978 SCC (Cri) 542].]

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 jail. During this period, various reformatory methods must have 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 treatment. This correctional “recidivism”, reflects the fact that the correctional therapy has not brought (sic) any change in the mind of the criminal. It also shows that a criminal is hardcore, who is beyond correctional therapy. If the correctional habit, therapy has not been made in itself, in a particular case, such a case can be rejected on the aforesaid ground, i.e. on its merits.

25. We are not oblivious of the fact that there may be hardcore criminals who, by reason of their crime and the methods of dealing with the crime, form associations, 13 loyalties and attitudes which tend to persist. There may even be peer pressure when such convicts are out to commit those crimes again. There may be pressure of being ostracised from delinquent groups, which may lead them to commit the crime again. Persistence in criminal behaviour may also be due to personality traits, most frequently due to pathological traits of personality, such as mental defectiveness, emotional instability, mental conflicts, egocentrism and psychosis. In regard to relapse or recidivism, Frank Exner, a noted criminologist and sociologist, points out that the chances of repeating increase with the number of previous arrests and the interval between the last and the next offence becomes shortened as the number of previous crimes progresses [ Frank Exner, Kriminologie, pp. 115-120]. The purpose of is the prognosis of the the criminological study improvable occasional offenders and irredeemable habitual offenders and hardcore criminals. that of To differentiate the recidivists from non-recidivists and dangerous and hard-core criminals from occasional criminals had been enumerated by Exner in the following flowsheet: (i) Hereditary weakness in the family life. (ii) Increasing tempo of criminality. (iii) Bad conditions in the parental home. (iv) Bad school progress (especially in deportment and industriousness). (v) Failure to complete studies once begun. (vi) Irregular work (work shyness). (vii) Onset of criminality before 18 years of age. (viii) More than four previous sentences. (ix) Quick relapse of crime. (x) Interlocal criminality (mobility). 14 (xi) Psychopathic personality (diagnosis of an institutional doctor). (xii) Alcoholism. (xiii) Release from the institution before 36 years of age. (xiv) Bad conduct in the institution. (xv) Bad social and family relations during the period of release. At the same time, as criminality is the expression of the “symptom” of a certain disorder in the offenders, they can be easily reformed if they are rightly diagnosed and the correct treatment is administered to them.

8. The custody certificate mentions that the petitioner’s conduct inside the jail was satisfactory. The petitioner’s application for parole was rejected because the presence of the petitioner is a danger to the area. The copy of the report submitted by Superintendent of Police, Nurpur, District Kangra, H.P., shows that the grounds for availing parole were found to be correct, and it was simply stated the column of recommendation ‘not recommended’ without assigning any reason.

9. It was submitted that the nature of the offence is heinous; however, that is not a relevant consideration. It was held by the Hon’ble Supreme Court in Shor vs. State of Uttar Pradesh Anr. (05.08.2020 - SC Order): 15 MANU/SCOR/34434/2020 that the parole cannot be rejected on the ground that the crime is heinous. It was observed: “Merely repeating the fact that the crime is heinous and that release of such a person would send a negative message against the justice system in society are factors de hors Section 2. Conduct in prison has not been referred to at all, and the Senior Superintendent of Police and the District Magistrate confirming that the prisoner is not "incapacitated" from committing the crime is not tantamount to stating that he is likely to abstain from crime and lead a peaceable life if released from prison.

10. This Court held in Harbhajan Singh v. State of H.P., 2019 SCC OnLine HP 3599, that the nature of the offence cannot be a ground to deny parole when the prisoner’s conduct shows a tendency to reform himself. It was observed: “17. For rejection of an application for parole, there are two grounds set out in Section 6 of the Act. Firstly, in case a prisoner is released, he will likely endanger the security of the State. Admittedly, the petitioner has been convicted for the offence committed under Section 302 IPC. But, in no way, could it be inferred that he is likely to endanger the security of the State, and even if so, the State has got enormous powers to put restrictions on the petitioner to protect the Security of the State. The second ground is the maintenance of public order. In this regard, in the response made by the District Magistrate, there is no reference as to whether he made a threat to public order.

18. When these two grounds, set out in Section 6 of the Act, are not reflected or mirrored in the report of the District Magistrate, we have to presume that the District Magistrate has given its report without applying its mind. When a provision or a statute directs an officer to do a 16 particular job in a particular manner, it shall be the duty of that officer to do the said job in that particular manner only. When a District Magistrate is directed to make a report on the basis of an assessment in an objective manner, he shall do it in that manner only.

19. Further, the rejection by the Government or the officer authorised by the Government should be on two grounds, namely, when it is likely to endanger the security of the State or the maintenance of the public order, which are lacking in the instant case.

20. In Francis Coralie Mullin v. The Administrator, UT Delhi, (1981) 1 SCC 608: AIR 1981 SC 746, Hon'ble Mr Justice Marshal has aptly said, and we quote. “I have previously stated my views that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court's holding that the inmate's interest of the inmate.”

21. In Kharak Singh v. State of UP, AIR 1963 SC 1295, it has been held that life means more than mere animal existence. The right to live is not restricted to mere animal existence. It means something more than just physical survival.