DATE OF DECISION: JANUARY 25 v. State of Haryana & Ors.

Mr.Surender Deswal, Advocate, for the petitioner. Mr. S.S. Randhawa Addl.A.G.,Haryana, for the respondents. .. SATISH KUMAR MITTAL, J. The petitioner, who is a life convict and undergoing the imprisonment in District Jail, Gurgaon, has filed the instant petition for quashing the order dated 22.9.2009 passed by the Commissioner, Gurgaon Range, Gurgaon, whereby his prayer for releasing him on furlough under Section 4 of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (hereinafter referred to as `the Act') has been rejected on the ground that his release on furlough will result into breach of peace in the village; with a further direction to the respondents to grant the benefit of furlough to him as he fulfills all the conditions prescribed for release on furlough under the aforesaid provisions. The petitioner was convicted under Section 302 read with Section 149 IPC and sentenced to undergo life imprisonment by Additional Crl.

Misc. No.M-36767 of 2009 -2- Sessions Judge, Gurgaon. In the said case, 14 family members of the petitioner were convicted. It is the case of the petitioner that he has already undergone more than three years of sentence. Therefore, after undergoing the said sentence, the petitioner becomes entitled for furlough under Section 4 of the Act. Learned counsel for the petitioner further argued that the petitioner has been denied the benefit of furlough only on the ground that his release on furlough will result into breach of peace in the village. He states that the said ground is without any basis and substance. He argued that on three occasions, the petitioner has been released on parole under Section 3 of the Act and every time he maintained his good conduct during the said period of parole and did not indulge in any act which resulted into breach of peace. Learned counsel further pointed out that other family members of the petitioner, who have been convicted in this case along with the petitioner, had also been released on parole, but none of them indulged in any untoward incident which resulted into breach of peace.

Learned counsel argued that apart from the aforesaid ground, there is no other ground with the respondents to deny the benefit of furlough to him. In spite of the opportunity given, no written statement has been filed by the respondents. Learned counsel for the respondents does not controvert the aforesaid factual position and states that the claim of the petitioner for release on furlough has been declined only on the ground that his release will result into breach of peace, though learned counsel is not in a position to show any material in support of his plea. After hearing the learned counsel for the parties, we are of the opinion that the respondents have arbitrarily and illegally rejected the prayer Crl. Misc. No.M-36767 of 2009 -3- of the petitioner for temporary release on furlough for three weeks under Section 4 of the Act. Keeping in view the reformative process and in order to provide opportunity to the prisoners to transform themselves into useful citizens, the State Government has enacted the Act.

Under Sections 3 and 4 of the Act, the legislation has made two categories of prisoners for temporary release, i.e., prisoners released on parole under Section 3 and the prisoners, who are to be released on furlough under Section 4 of the Act, subject to fulfillment of the conditions laid down under said Sections. The temporary release on furlough under Section 4 of the Act will not be entitled to a prisoner unless he fulfills the conditions laid down under that Section. Section 4 of the Act reads as under:- “4. Temporary release of prisoners on furlough.-(1) The State Government or any other officer authorized by it in this behalf may, in consultation with such other officer as may be appointed by the State Government, by notification, and subject to such conditions and in such manner as may be prescribed, release temporarily, on furlough, any prisoner who has been sentenced to a term of imprisonment of not less than four years and who - (a) has, immediately before the date of his temporary release, undergone continuous imprisonment for a period of three years, inclusive of the pre-sentence detention, if any; (b) has not during such period committed any jail offence (except an offence punished by a warning) and has earned atleast three annual good conduct remissions: Provided that nothing herein shall apply to a prisoner who- (i)is a habitual offender as defined in sub-section (3) of section 2 of Punjab Habitual Offenders (Control and Reform) Act, 1952; or (ii)has been convicted of dacoity or such other Crl.

Misc. No.M-36767 of 2009 -4- offence as the State Government may, by notification, specify. (2) The period of furlough for which a prisoner is eligible under sub-section (1) shall be three weeks during the first year of his release and two weeks during each successive year thereafter. (3) Subject to the provisions of clause (d) of sub- section (3) of section 8 the period of release referred to in sub-section (1) shall count towards the total period of the sentence undergone by a prisoner.” The State Government has also framed rules which are known as Haryana Good Conduct Prisoners (Temporary Release) Rules, 2007 laying down the procedure for grant of parole and furlough. It has not been disputed by the learned State counsel that the petitioner has fulfilled all the conditions for grant of furlough as laid down under Section 4 of the Act and the Rules made thereunder. Undisputedly, during the custody period, the petitioner has not committed any jail offence and has shown good conduct.

However, temporary release of the petitioner on furlough is being declined only on the ground that his release on furlough will result into breach of peace. In our opinion, the respondents are not justified in rejecting the claim of the petitioner for release on furlough on the said ground. It has not been disputed that earlier on three occasions, the petitioner was temporarily released on parole on certain grounds under Section 3 of the Act and during that period he had maintained peace and did not committed any act which resulted into breach of peace. Similarly, other family members of the petitioner, who have been convicted along with the petitioner, were also released on parole, but no untoward incident has been committed by them during the parole period which resulted into breach of peace. Therefore, in Crl. Misc. No.M-36767 of 2009 -5- our opinion, the denial of the benefit of furlough to the petitioner on the ground that his release on furlough will result into breach of peace in the village, is without any basis.