Harish Singh Adhikari vs State Of Uttarakhand

Manoj K. Tiwari, J

Petitioner was convicted for an offence under Section 302/34 of I.P.C. and he was sentenced for life by learned Session Judge, Bageshwar vide

order dated 24.12.2008. He moved an application for parole/ interim bail for two months, which was sent by Superintendent District Jail, Dehradun

vide letter dated 17.09.2019 to the High Court Legal Service Committee.

In his letter, petitioner has stated that he remained in custody during trial between 21.03.2008 to 23.12.2008 and after his conviction he is

continuously in jail since 24.12.2008. As per the Jail Custody Certificate issued by Superintendent District Jail, Dehradun, the actual sentence

undergone by the petitioner till 12.09.2019 was 11 years, 5 months and 22 days. It further indicates that if the total remission earned by the petitioner is

added then the sentence undergone with remission by the petitioner, as on 12.09.2019 is 14 years, 10 months and 10 days. The said certificate further

indicates that conduct and behavior of the petitioner has been excellent in jail.

Petitioner has sought parole for a period of two months for the purpose of repairing his ancestral house, which, according to him, is in a dilapidated

condition. Petitioner has stated that his ancestral house is in a state of disrepair and has become unfit for human habitation and his wife and children

are not in a position to get it reconstructed. He has further stated that earlier he had made applications to the District Magistrate from time to time

seeking parole, however, he was denied parole merely by observing that petitioner’s presence in his ancestral village would create law and order

problem and petitioner may also commit some offence.

Hon’ble Supreme Court in the case of Inder Singh & another Vs. State (Delhi Administration), reported in AIR 1978 S.C. 109,1 has held as

follows:

“…if the behaviour of these two prisoners shows responsibility and trustworthiness, liberal though cautious, parole will be allowed to them so that

their family ties may be maintained and inner tensions may not further build up. After every period of one year, they should be enlarged on parole for

two months…â€​

Similarly, in the case of Shakuntala Devi Vs. State of Delhi, reported in 1996 (36) DRJ 545, Hon’ble Delhi High Court has held as under:

“(5) In Poonam Lata Vs. M.L. Wadhawan, it has been held by their Lordship that; ""RELEASE on parole is a wing of reformative process and is

expected to provide opportunity to the prisoner to transform himself into a useful citizen.

IN Inder Singh Vs. State , the Apex Court has devised another humanizing strategy, viz, a guarded parole release every year atleast a month,

punctuating the total prison term, for maintaining his family ties. A prisoner cannot maintain his family ties by living in a small world of his own cribbed,

cabined and confined within the four walls of the prison. In the case of Inder Singh (supra), their lordships directed that:-

.......If the behavior of these two prisoners shows responsibility and trustworthiness, liberal though cautious,parole will be allowed to them so that their

family ties may be maintained and inner tensions may not further buildup. After every period of one year, they should be enlarged on parole for two

months.......' THEIR lordships further added that ""Article 21 of the Constitution in the jurisdiction root for this legal liberalism.

THE decision in Inder Singh's case has a message of compelling force and relevance to the prison pathology. A logical consequence of this decision is

that parole has become an integral part of our criminal justice. We may add here that regardless of the crime a man may commit, he still is a human

being and has human feelings also. Therefore the nature and length of sentence or the magnitude of the crime committed by the prisoner are not

relevant for the purpose of grant of parole.

(6) It has to be borne in mind that the exercise of all administrative power vested in public authority must be informed by both relevance and reason,

relevance in relation lo the object which it seeks to serve and reason in regard to the manner in which it at- tempts to do so. Therefore, in construing

the question of grant of parole to a prisoner, the Government in the scheme of the prison administration must take a constructive and purpose oriented

approach, and exercise its beneficient jurisdiction wisely. In such matters, the representation made by the prisoner must be construed liberally and not

technically so as to frustrate or defeat the therapeutic treatment, hospital setting and correctional goals.

(7) It is well settled that Article 14 strikes at arbitrariness in administrative action and ensures fairness and equality of treatment. The Apex Court has

observed in E.P. Royappa VS. State Of T.N. , ""from a positive point of view, equality is antithetic to arbitrariness. Any administrative action that is

arbitrary must involve the negation of equality. (A.L. Kalra Vs. P & E Corporation of India Ltd. ). No doubt, the grant of parole is essentially an

executive function. If the Court finds that any Governmental action in rejecting the grant of parole to a prisoner has the effect of suffocating the

Article 14 or Article 21 of the Constitution, then the court must act, will act to restore the rule of law and respect the residuary fundamental rights of

an aggrieved prisoner.

(8) On a perusal of the impugned order, it appears that the Delhi Administration was influenced by the nature of the sentence awarded to the

petitioner, the magnitude of the crime committed by her and the duration of the period of parole granted to her earlier, in rejecting her prayer for grant

of parole. As we said earlier, the nature of the sentence or the magnitude of the crime committed by the prisoner are not relevant for the purpose of

grant of parole. It is significant that the affidavit filed by the Deputy Secretary (Home) clearly indicates that the behavior of the petitioner shows

responsibility and trustworthiness. It also shows that the petitioner is a ""patient of diabetes, hypertension, coronary ailing disease and her blood sugar is

245 mg.% (R)."" It is beyond the pale of controversy that last parole was granted to the petitioner some 14 months before. The Delhi Administration

has obviously not kept these aspects in view while dealing with the petitioner's prayer for grant of parole. Such indifference on the part of the Delhi

Administration can't deter the writ of this Court running into the prison and compelling compliance of the message illumined by the Apex Court in the

case of Inder Singh Vs. State (supra).

(9) We are constrained to observe that the operative reasons for the State action in rejecting the petitioner's prayer for grant of parole are not

legitimate and relevant but are devoid of human benediction and outside the area of permissible considerations. Consequently, the impugned order

can't be allowed to stand.â€​

Similar view was expressed by Hon’ble Punjab & Haryana High Court in the case of Ramesh @ Ajay Vs. State of Haryana & others (C.W.P.

No. 8776 of 2018 decided on 24.04.2018).

Admittedly, petitioner is in jail since 21.03.2008. His prayer for parole made to the District Magistrate had been rejected. Petitioner is praying for

parole so that he may reconstruct his dilapidated ancestral residential house. According to him, there is no one in the family who may get the work of

reconstruction done. According to the certificate given by Superintendent, District Jail, his conduct has been excellent in the jail, therefore, parole

cannot be denied to the petitioner merely because he has been sentenced for life.

In such view of the matter, the writ petition is allowed. Petitioner shall be released on parole for a period of two months from the date of his

release, on his executing a personal bond of Rs. 50,000/- with two reliable sureties in the like amount to the satisfaction of concerned District

Magistrate. It is directed that, on expiry of two months, the petitioner shall surrender before the Superintendent of the Jail concerned.

Registry is directed to send a copy of this order to the Superintendent of concerned jail forthwith.