CWP No. 32263 -2018(OM) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 32263 -2018(OM)
Date of decision: 16.05.2019
Sukhvir Singh alias Sukha
…..Petitioner
versus
State of Punjab and others
……Respondents
CORAM: Hon’ble Mr.Justice Kuldip Singh
Present: Mr.Nandan Jindal, Advocate for the petitioner
Mr.Sandeep S. Deol, DAG Punjab
1. Whether Reporters of Local Newspapers may be allowed to see the
judgment?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Kuldip Singh, J.
The petitioner has sought the quashing of order dated
22.11.2018 (Annexure P5), whereby parole of the petitioner has been
declined on the ground that he falls under the definition of Hardcore
Criminal as per Section 5(A)(a) of the Punjab Good Conduct Prisoners
(Temporary Release) Act, 2015.
Petitioner was convicted in FIR No.93 dated 9.9.2008
registered under Sections 302, Section363, Section376, Section177, Section201 read with Section 34 at
Police Station Khamanon, District Fatehgarh Sahib vide order dated
25.2.2010 passed by learned Additional Sessions Judge, Fatehgarh Sahib.
He is now undergoing life imprisonment. His appeal is lying admitted and
pending before this Court.
According to the petitioner, he has already enjoyed 11 paroles
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at different times and has not committed any jail offence. There is no
complaint against him. However, in the year 2016, an amendment was
made in Punjab Good Conduct Prisoners (Temporary Release) Act, 1988,
wherein it was provided that a person who has been convicted under Section
302 read with Section 376 IPC is not entitled for parole and for remission.
Definition of Hardcore Criminal was inserted for the first time, whereby a
person convicted under Section 302 read with Section 376 IPC was held to
be not entitled for remission also. The petitioner states that the said policy is
illegal and cannot be applied to the petitioner.
The State in its reply has affirmed that the petitioner was
convicted under Sections 302, Section363, Section376, Section201 and Section177 IPC read with Section
34 IPC and is undergoing imprisonment for life. It is stated that as per
Section 5A clause (b) of the Punjab Good Conduct Prisoners (Temporary
Release) Amendment Act, 2015, a Hardcore Prisoner may be allowed to be
temporarily released on the grounds specified in Clause (a) or clause (b) of
sub-section 1 of Section 3 of the said Act. However, extra conditions may
be imposed on the prisoner at the time of temporary release or furlough after
considering all the facts and circumstances of the case. State has referred to
the definition of Hardcore Prisoner, which includes a person convicted
under Section 376 read with Section 302 IPC. It is stated that the petitioner
falls in the category of Hardcore Prisoner and cannot be released on parole.
I have heard learned counsel for the parties and have also
carefully gone through the file.
Learned counsel for the petitioner has vehemently argued that
the petitioner was released on parole for 11 times from the years 2010 to
2016, as per detailed certificate issued by the jail authorities (Annexure P1).
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He never misused the parole. He never committed any jail offence and his
conduct in the jail is good.
Admittedly, the Punjab Good Conduct Prisoners (Temporary
Release) Amendment Act, 2015 came into operation from January 7, 2016,
in which clause (aa) has been inserted, which defined the Hardcore Prisoner
as under:-
“(aa)”hardcore prisoner” means a person confined in prison
under a sentence of imprisonment, who has been convicted of-
(i) an offence of rape with murder under section 376 read
with Sectionsection 302 of the Indian Penal Code, 1860;
(ii) an offence punishable under Sectionsection 14 of the Protection
of Children from Sexual Offences Act, 2012;
Similarly, after Section 5, Section 5A has been added in the Principal Act as
under:-
“5-A Prisoner not entitled to be released in certain cases.
Notwithstanding anything contained in Sectionsections 3 and Section4,- (a)
no prisoner shall be entitled to be released under this Act to
whom the death sentence has been awarded or is a hardcore,
prisoner;
(b) Notwithstanding anything contained in clause (a), hardcore
prisoner may be allowed to be released temporarily on the
ground specified in clause (a) or clause (b) of sub-section (1)
of section (3). However, extra conditions may be imposed on
the prisoner at the time of temporary release or furlough after
considering all the facts and circumstances of the case.”.
The plea of the State is that at the time of consideration of case of the
petitioner for parole, the said amendment had come into force and therefore,
his case cannot be considered in view of the amendment in the Act.
On the other hand, learned counsel for the petitioner contends
that the Act, which is applicable at the time of his conviction, is to apply in
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his case.
The question raised before this Court is as to ‘whether in case
of parole, the Act, which is applicable at the time of conviction will apply or
the Act, which is applicable at the time of consideration of application for
parole will apply?’
Learned counsel for the petitioner has relied upon the Division
Bench authority of this Court in SectionSonu @ Arun vs. State of Haryana and
others (CRWP No.1078 of 2014) decided on 9.2.2015. Perusal of the said
authority shows that it pertains to recovery of mobile phone in the prison.
Said recovery was made before the amendment of 2012 came into operation.
For the recovery of cellphone, a criminal case was also registered. The
person possessing cellphone was treated in the category of Hardcore
Prisoner. Therefore, the Court considering facts and circumstances of the
case held that the penal provision for enhancing sentence cannot be applied
retrospectively.
However, in the present case, it is not a case of application of
the penal provision retrospectively.
Further, reliance has been placed on the authority of a Single
Bench of this Court in Chandi Ram vs. State of Haryana and others, (CWP
No.33429 of 2018) decided on 12.4.2019.
The question, as to whether the parole is to be governed
by the existing rules or by the law prevailing at the time of conviction,
was considered by this Court in Ajay Jadeja alias SectionJanak vs. State of
Haryana and others, (Crl.W.P. No.2104 of 2012) decided on 14.12.2012.
A Division Bench of this Court, while considering as to whether
parole is substantive right or it is a concession granted by the
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Government observed as under:-
10. The judgments, relied upon by learned counsel for the
petitioner are not applicable in the present case. SectionIn State of
Haryana and others v. Jagdish (supra), the issue of pre-
mature release of a convict was in question. In this regard, it
was observed by the Hon’ble Supreme Court that case of the
convict for his pre-mature release is to be considered on the
basis of the instructions/rules existing on the date of conviction
and the said vested right could not have been taken away on
the basis of the subsequent policy restricting the right of pre-
mature release, while observing that the State authority is
under an obligation to at least exercise its discretion in
relation to an honest expectation perceived by the convict, at
the time of his conviction that his case for pre-mature release
would be considered after serving the sentence, prescribed in
the short sentencing policy existing on that date. There is a
difference between pre-mature release and temporary release.
Pre-mature release of a convict is a vested right whereas the
temporary release is a concession and not a vested right.
Therefore, the said decision would not help the petitioner. The
case of Bhola Ram (supra) is with regard to grant of remission
under the Punjab Grant of Remission of Punishment Policy,
2010. It was held in that case that the said benefit is to be
granted prospectively and not retrospectively. The said policy
was held to be applicable prospectively and not
retrospectively. Therefore, the said decision has no bearing on
the issue involved in the present case.
Regarding prospective or retrospective operation of the Act and
whether it is vested right to get temporary release, the Court observed as
under and accordingly dismissed the said petition:-
11. The test to determine whether a particular amendment
would operate prospective or retrospective depends upon the
question whether it affects vested right of a person. No5 of 8
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CWP No. 32263 -2018(OM) 6prisoner has a vested right to get the benefit of temporary
release on parole. It is a concession, which is given to a
prisoner on fulfilling certain conditions. If on the date of
making an application for grant of temporary release, a
prisoner fulfills all the conditions applicable in his case, he
can be considered for such concession for a limited period. The
petitioner, being a hardcore prisoner is not entitled for the said
concession. He cannot be granted this concession merely
because he was convicted prior to insertion of Section 5A in
the Principal Act. In case of a hardcore prisoner, who is
involved in many serious crimes, liberal approach cannot be
adopted.
The matter was also examined by another Division Bench of
this Court in SectionVakil Raj vs. State of Haryana and others, 2016(2) R.C.R.
(Criminal) 1040, wherein the Court considered earlier case law on the point
and observed as under:-
23. The argument that amending Act would not be
applicable to the convicts, who stand convicted prior to the
insertion of Clause (aa) in Section 2, is again not tenable. The
Division Bench of this Court in Jagpreet Singh’s case (supra)
has referred to judgments of Hon’ble Supreme Court in
Varinder Singh Vs. State of Punjab another (2014) 3 SCC
151 and Harjit Singh Vs. State of Punjab (2011) 4 SCC 441.
However, Varinder Singh’s case (supra) pertains to a
conviction of a jail offence under Section 45 of the Prisons Act,
1894, whereas in Harjit Singh’s case (supra), again the
question was of enhancement of a sentence for an offence
under Section 18 of Narcotic Drugs SectionPsychotropic
Substances Act, 1985 by virtue of notification dated
18.11.2009. Thus, both the judgments have no applicability to
the facts of the present case. The issue raised in the present
case is not of conviction, but of grant of parole, which is a
concession, as laid down in Ajay Jadeja’s case (supra) relied6 of 8
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CWP No. 32263 -2018(OM) 7upon by the learned State counsel. The amended definition
would be applicable to all convicts, who were convicted prior
to amendment and insertion of Clause (aa) in Section 2 of the
Act. The grant of parole is to be considered as per law
applicable on the date of consideration of parole.
After going through the case law on the point and considering
provisions, I am of the view that parole is not a matter of right. It is not the
vested right. It is a concession granted by the Government to temporarily
release the prisoner on parole or on furlough. However, nobody can insist
that he is entitled to same as a matter of right. State is to consider all facts
and circumstances, including the law and Rules prevailing at the time of
passing of such order. Therefore, I am of the view that law prevailing at the
time of consideration of application for parole or furlough is to apply to
decide as to whether parole or furlough is to be granted or not?
In the present case, amendment came into force on January 7,
2016. The petitioner was convicted under Section 376 read with Section
302 IPC and he was ordered to be treated as Hardcore Prisoner. Under
Clause 5A, as reproduced above, there is no absolute bar to the release of
such prisoner. However, he can only be released on the grounds mentioned
in Clause (a) or Clause (b) of sub-section 1 of Section 3 and the
Government is competent to impose extra conditions at the time of such
temporary release. Said amendment has not been challenged in the present
petition. Therefore, the said amendment will apply to the case of the
petitioner. Even through the petitioner was earlier released on 11 times on
parole but now, in view of the amendment, his case falls under the category
of Hardcore Prisoner. His case also does not fall under any of the clauses
mentioned in Section 5A of the said Act. Therefore, the Government was
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justified in refusing to release the petitioner on parole.
There is no illegality or infirmity in the impugned order dated
22.11.2018 (Annexure P5).
Accordingly, the present petition is dismissed.
16.05.2019 (Kuldip Singh)
gk Judge
Whether speaking/ reasoned: Yes
Whether Reportable: Yes
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