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Bir Singh Vs. the State of Himachal Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1985CriLJ1458
AppellantBir Singh
RespondentThe State of Himachal Pradesh and ors.
Excerpt:
- .....provocation;2) there was no occasion to watch his conduct outside jail in view of the fact that parole/furlough could not be granted to him during the entire period of imprisonment because no person was willing to stand surety for him; and3) the district magistrate/superintendent of police, kangra did not recommend the case for premature release since the panchayat apprehended 'breach of peace' in case he was released.2. the norms which are prescribed for premature release of prisoners, inter alia, prescribe that the case for premature release may be referred to the government after certain number of years of imprisonment suffered by different categories of prisoners provided:(a) the conduct of the prisoner during the imprisonment had remained 'good'(b) the prisoner had committed no.....
Judgment:

P.D. Desai, C.J.

1. As observed in the order passed on November 22, 1984, the petitioner had, by that time, undergone substantive sentence of 14 years 11 months and 16 days and total sentence undergone including remission was 21 years and 1 month. The substantive sentence undergone by now is a little over 15 years. The grounds on which the petitioner's case for premature release was not recommended to the Government by the Review Committee, were:

1) He was convicted for committing the murder of his father on a slight provocation;

2) There was no occasion to watch his conduct outside jail in view of the fact that parole/furlough could not be granted to him during the entire period of imprisonment because no person was willing to stand surety for him; and

3) The District Magistrate/Superintendent of Police, Kangra did not recommend the case for premature release since the Panchayat apprehended 'breach of peace' in case he was released.

2. The norms which are prescribed for premature release of prisoners, inter alia, prescribe that the case for premature release may be referred to the Government after certain number of years of imprisonment suffered by different categories of prisoners provided:

(a) The conduct of the prisoner during the imprisonment had remained 'good'

(b) The prisoner had committed no jail offence.

(c) The prisoner had returned from parole and furlough granted to him punctually.

3. In the instant case it is not in dispute that the petitioner has completed the minimum requisite period of imprisonment to qualify for the consideration of his case for premature release. The supplementary affidavit filed by the Deputy Inspector General of Prisons, pursuant to the orders of the Court made on December 10,1984 shows that during the entire period of imprisonment, the work and conduct of the petitioner has remained 'good' and nothing adverse has been reported against him. The Deputy Inspector General of Prisons is present in the Court and, on being questioned, he stated that the petitioner has committed no jail offence during the entire period of his incarceration. The first two tests are, therefore, satisfied. The third test is incapable of being satisfied in the present case because the petitioner was never released on parole/furlough. Prima facie, therefore, the case deserved a positive consideration at the hands of the Review Committee the fact that the petitioner committed the murder of his father about two decades back on a slight provocation is not factor which could be held out against a favourable consideration of his case after such a long lapse of time especially in view of his jail record. The absence of an opportunity to watch his conduct outside jail for the reason of his not having been released on parole/furlough is again not a factor which could be legitimately pressed into service on the facts and in the circumstances of the case. There is no reason to assume that if the petitioner is granted the benefit of premature release, he would once again display criminal tendency. Such an assumption overlooks not only that the petitioner is not shown to be a habitual offender but also the reformatory aspect of the penalty procedure as well as the good record of the petitioner during the entire period of his imprisonment. The fact that nobody came forward to stand as a surety for the petitioner is also no proof of the fact that he has no roots in the society. A person in prison and even his relatives are ordinarily under a great disadvantage and it might not be possible in all cases for him or them by reason of penury, confinement and absence of influence in society, to find friends or, in some cases, even relatives to furnish a security bond, especially if the amount for which the bond is required to be executed is fixed without due regard to the facts and circumstances of the case. Let it not be forgotten that the affluents do not befriend indigents. There is no khowing on what basis the panchayat concerned apprehends 'breach of peace' if the petitioner is prematurely released. There is nothing to show that the petitioner has a history sheet. Besides, as revealed from the affidavit of the Deputy Inspector General of Prisons, the petitioner is an old man in weak health and, under such circumstances, the apprehension would appear to be more imaginary than real. Having regard to all the circumstances of the case, it would appear that the Review Committee has taken into consideration irrelevant factors and failed to apply its mind to the relevant aspect.

4. The Review Committee as well as the State Government must bear-in mind that though the policy regarding premature release of convicts is evolved in the exercise of executive powers and that it is within the realm of discretionary jurisdiction, such discretionary power is coupled with the legal duty to exercise the same once the conditions for its exercise are shown to exist. It is settled law that where a power is deposited with a public officer for the purpose of being used for the benefit of the persons who are specifically pointed out, and with regard to whom a definition is supplied of the conditions upon which they are entitled to call for the exercise, that power ought to be exercised and the Court will require it to be exercised. If the existence of the purpose is established and the conditions of the exercise of the discretion are fulfilled, the competent authority will be under an obligation to exercise the discretion in furtherance of such purpose. The exercise of power of premature release of a person must not, therefore, be looked upon as an act of charity, compassion of clemency but as an act in the discharge of a duty to implement the enlightened policy and such an act is to be performed upon the fulfilment of the requisite conditions to effectuate the salutary purpose.

5. For the foregoing reasons, it appears to be just and proper to direct that the case of the petitioner be reviewed by the Review Committee within a period of two months from today in light of the facts and circumstances of the case as well as keeping in view the observations made hereinabove. Meanwhile, the petitioner be released immediately on parole/furlough on his personal bond without insistence upon any formality for such release being complied with. The only condition which will be imposed in the order granting parole/furlough, besides furnishing personal bond, would be that the petitioner, during the period of his temporary release, will remain in the area which is within the jurisdiction of the police station Shahpur and report to the Station House Officer once every fifteen days. The period of temporary release shall be six weeks.

6. The Court is conscious of the fact that the petitioner, in the course of his application dated December 18, 1984, submitted to the Superintendent of the Model Central Jail, Nahan, stated that his prayer is for premature release and not temporary release. The application-is apparently made under an apprehension that his prayer might not be misconceived as a request for a temporary release and not premature release and it is not capable of being construed as ruling out temporary release pending the consideration of his case for premature release. Besides, it cannot be overlooked, having regard to the past experience, that the petitioner might have been apprehensive that any attempt to secure temporary release on parole/furlough may prove abortive on account of his disability to furnish surety and/or security. In view of the conditions which we have imposed hereinabove, while ordering his release on parole, there is no basis for such apprehension, if any. The Court has, therefore, ordered his temporary release notwithstanding the aforesaid application and in so doing the Court has also borne in mind that his conduct during the period of temporary release will furnish sufficient evidence about his behaviour outside jail at the time of reconsideration of his case for premature release.

7. Let Dasti copy be supplied to the learned Advocate General within seventy two hours.


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