Kashmir Singh vs State of Haryana and others

P.K. Jain, J.

Kashmir Singh son of Hoshiar Singh, Sepoy in the Army, was convicted by order dated 11.12.1992, passed by the General Court Martial for an offence under section 307, Indian Penal Code and sentenced to undergo imprisonment for 7 years. He is now lodged in District Jail, Rohtak, to undergo the said sentence.

The petitioner moved an application on 15.11.1994 for his temporary release on parole for six weeks for agricultural purposes under section 3(1)(c) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (hereinafter referred to as the ''State Act''). After obtaining the report of the District Magistrate, Rohtak, the case was forwarded to the Army Authorities for consideration but the same was rejected by the said Authorities vide letter dated 28.2.1995 (Annexure P.1).

The petitioner has filed the present petition under section 482 of the Code of Criminal Procedure read with Articles 226/227 of the Constitution of India for a direction to release the petitioner on parole under the State Act. It has been stated in the petition that he owns 2.5 acres of agricultural land in his village which is in his self cultivation. According to the averments in the petition, the family of the petitioner consists of himself, his wife, minor daughter and his old mother. Thus, it is alleged that the temporary release of the petitioner is necessary for ploughing, sowing, harvesting and carrying out other agricultural operations on the said land. According to further averments, the conduct of the petitioner inside the jail has always been good and he was never involved in jail offence. He has also earned remissions for good conduct inside the jail. He was granted emergency parole from 21.6.1994 to 29.6.1994 which he enjoyed peacefully without any contravention. It has been stated that the release of the petitioner on parole is governed by the State Act and the rejection of his case by the Army Authorities is violative of his constitutional rights.

Notice was issued to the respondents. Notice was also issued to the Army authorities since the impugned order rejecting the request of parole was passed by it.

In a separate reply filed by the State of Haryana and the remaining two respondents, the factual position alleged by the petitioner has not been disputed. It has been stated that after obtaining the report of the District Magistrate, the case for the release of the petitioner on parole for agricultural purposes was forwarded to the Military Authorities which had rejected the same vide letter dated 28.2.1995.

In its separate return filed by the Military Authorities, it is stated that the petition is misconceived in terms of Section 179 of the Army Act, 1950 (hereinafter to be referred to as ''the Central Act'') read with Army Head Quarters letter dated 13.11.1986 (Annexure R4/2), that the question of grant or refusal of parole to the petitioner is to be considered by the concerned Military Authority in terms of Government of India letter dated 25.8.1986 (Annexure R4/1) read with para 13 of the letter dated 13.11.1986 (Annexure R4/2) and that release on parole for agricultural process is not one of the grounds envisaged for release on parole of military prisoners in civil jail. It has been further stated that the petitioner has been found guilty of intentionally attempting to commit murder of a colleague. In exceptional and emergent cases and that too on the special recommendation of the jail authorities, a parole can be granted. It has been admitted that earlier emergency parole was granted to the petitioner. However, while opposing the present petition, it has been stated that no ground for the release of the petitioner on parole is made out within the ambit of Section 179 of the Central Act read with the instructions issued thereunder.

From the pleadings of the parties, the following two questions arise for consideration :

i) Whether the question of grant of parole to the petitioner is governed by the Central Act or the State Act ?

ii) Whether the action of the Army Authority in rejecting the request of the petitioner vide letter dated 28.2.1995 (Annexure P.1) is violative of Articles 14, 19 and 21 of the Constitution of India ?

I have heard the learned counsel for the parties and have perused the relevant law.

Question No. i:

Ms. Vandana Malhotra, learned counsel for the petitioner, has drawn my attention to the definition of the term ''prisoner'' as contained in Section 2(d) of the State Act and has argued that a prisoner even under a sentence passed by the Court Martial falls within its ambit and as such, the petitioner''s case is governed by the State Act and he is entitled to be released on six weeks'' parole for agricultural purposes as laid down in Section 3 of the State Act. The learned counsel has placed reliance upon a judgment of this Court in Crl. Misc. No. 3756M of 1992 Ex. Major R.S. Budhwar v. The State of Haryana and others, decided on 9.6.1992 and a judgment of the Madhya Pradesh High Court rendered in Sitaram Barelal v. State of Madhya Pradesh, A.I.R. 1969 Madhya Pradesh 252.

On the other hand Shri R.S. Surjewala, Advocate, learned counsel for the Military Authority, has argued that a person sentenced by Court Martial would remain subject to the provisions of the Central Act even though he may have ceased to be subject of the Army Act and that the question of pardon and remission including the question of grant of parole in respect of such a convict is governed by Section 179 of the Central Act read with instructions issued from time to time either by the Central Government or the Competent Authority thereunder. The learned counsel has drawn my attention to Articles 245 and 254 of the Constitution of India to urge that the Central Act would override the provisions of the State Act even in respect of the matters which fall within the concurrent list in the VII Schedule of the Constitution of India and both the Parliament as well as the State Legislature have enacted laws on the same subject. In support of this argument, the learned counsel has placed reliance upon a well known judgment rendered by the Apex Court in Maru Ram, Bhiwana Ram etc. v. State of Punjab, A.I.R. 1980 Supreme Court 2147.

I have carefully considered the respective arguments advanced on this legal aspect of the matter. It is correct that the case of the petitioner is definitely supported by the judgment of a Single Bench of this Court in Ex. Major R.S. Budhwar''s case (supra). In that case the petitioner, a Major in the Army, was awarded life imprisonment by the General Court Martial and was confined in Central Jail, Ambala. A prayer for the grant of parole under the provisions of the State Act was made which was forwarded to the Military Authorities and the same was ultimately rejected by the Chief of Army Staff. After making a reference to the definition of term ''prisoner'' as contained in Section 2(d) of the State Act, the said Bench made the following observations:

"A perusal of the above provisions shows that even a person confined in prison on conviction by a Court Martial falls within the definition of a ''prisoner'' and the authority to release him temporarily vests exclusively in the State Government. The case is not to be examined by the Chief of the Army Staff."

From a bare perusal of this judgment, it is evident that neither the provisions of Sections 123 and 179 of the Central Act nor the provisions of the Constitution of India, referred to above, were brought to the notice of the Bench, nor the same have been referred to or discussed in that judgment.

Section 123 of the Central Act, so far it is relevant for our purposes, enacts as under:

"123.

(3) When a person subject to this Act is sentenced by a Court Martial, to (imprisonment for life) or imprisonment this Act shall apply to him during the term of his sentence, though he is cashiered or dismissed from the regular Army, or has otherwise ceased to be subject to this Act, and he may be kept, removed, imprisoned and punished as if he continued to be subject to this Act."

Section 179 of this Act relates to the pardon and remission. The relevant portion of this provision provides as under :

"179. Pardon and remission : When any person subject to this Act has been convicted by a courtmartial of any offence, the Central Government or the (Chief of the Army Staff) or, in the case of a sentence, which he could have confirmed or which did not require confirmation, the officer commanding the army, army corps, division or independent brigade in which such person at the time of conviction was serving or the prescribed officer may:

(a) xx xx

(b) xx xx

(c) xx xx

(d) either with or without conditions which the person sentenced accepts, release the person on parole."

By letter dated August 25, 1986 (Annexure R4/1), Government of India through Ministry of Home Affairs issued instructions to all the States and the Union Territories to refer all the cases of release of military prisoners on parole only to the competent authority prescribed in Section 179 of the Central Act (reproduced above). Para 13 read with Appendix ''D'' of the letter dated 13.11.1986 (Annexure R4/2) issued by the Army Headquarters contains the guidelines and the conditions governing grant of parole to military prisoners in civil jails.

Thus, there is a Central Act relating to the grant of parole, the Authority by whom and the grounds on which, the same can be granted to a military prisoner. Simultaneously, the definition of the prisoner contained in Section 2(d) of the State Act also covers within its ambit a military prisoner. The question is as to how to resolve this conflict. Articles 246 and 254 of the Constitution of India provide an answer to the same. These provisions were considered and discussed at length while interpreting Section 433A of the Code of Criminal Procedure by the Apex Court in a well known judgment rendered in Maru Ram''s case (supra). Their Lordships were pleased to lay down the following law:.

"Article 246(2) gives powers to Parliament to make laws with respect to any of the matters enumerated in List III. Entries 1 and 2 in List III (especially Entry 2) are abundantly comprehensive to cover legislation such as is contained in Section 433A, which merely enacts a rider, as it were, to Sections 432 and 433 (a). We cannot read into it a legislation on the topic of ''Prisons and Prisoners''. On the other hand, it sets a lower limit to the execution of the punishment provided by the Penal Code and is appropriately placed in the Chapter on Execution and Sentences in the Procedure Code. Once we accept the irrefutable position that the execution, remission and commutation of sentences primarily fall, as in the earlier Code (Criminal Procedure Code, 1898), within the present Procedure Code (Chapter XXXII), we may rightly assign Section 433A to entry 2 in List III as a cognate provision integral to remission and commutation, as it sets limits to the power conferred by the preceding two sections. This limited prescription as a proviso to the earlier prescription relates to execution of sentence, not conditions in prison or regulation of prisoner''s life. The distinction between prisons and prisoners on the one hand and sentences and their execution remission and commutation on the other, is fine but real. To bastardize Section 433A as outside the legitimacy of Entry 2 in List III is to breach all canons of constitutional interpretation of legislative lists. Parliament has competency."

Still further, in para 16 of the judgment, their Lordships were pleased to put the matter beyond doubt in the following words:

"Let us assume for a moment that the laws of remission and short sentencing are enacted under Entry 4 of List II. In that event the State''s competency to enact cannot be challenged. After all, even in prison prisoner legislation, there may be beneficent provisions to promote the habilitative potential and reduce warderPrisoner friction by stickcumcarrot strategies. Offer of remission paroles, supervised releases, opportunities for self improvement by family contacts, time in community work centres and even meditational centres, can properly belong to prison legislation. Rewards by remissions, like punishments by privations are permissible under Entry 4 of List II. Indeed, progressive rehabilitatory prison laws which have a dynamic correctional orientation and reformatory destination, including meaningful intermissions and humane remissions is on the Indian agenda of unfulfilled legislations. Apart from these futurological measures, we have on existing Central Law, viz. the Prisons Act, 1894 which in Section 59(27) expressly sanctions rules for premature release. Even so, the powers of the State is subject to Art. 246(1) and (2) and so parliamentary legislation prevails over State legislation. Moreover, Art. 254 resolves the conflict in favour of parliamentary legislation. If a State intends to legislate under Entry 2 of List III such laws can prevail in that State as against a parliamentary legislation only if presidential assent has been obtained in terms of Art. 254 (2). In the present case there is hardly any doubt that Section 433A must hold its sway over any State legislation even regarding ''prisons and prisoners'' if its provisions are repugnant to the Central Law."

It cannot be disputed that a State Law would be repugnant to the Union Law when there is a direct conflict between the two laws. Such repugnancy may also arise where both the laws operate in the same field and the two cannot possibly stand together. In all such cases the law made by the Parliament shall prevail over the State Law under Article 254 (1) of the Constitution of India as interpreted by their Lordships of the Apex Court, as reproduced above.

The Central Act contains express provisions regarding grant of parole to a military prisoner under Section 179 thereof. Simultaneously, the State Act also embraces within its ambit a military prisoner by an inclusive definition of the term ''prisoner'' as contained in Section 2(d) thereof. The Authority under the Central Act is different from the one prescribed under the State Act. Detailed instructions have already been issued by the Government of India that all the cases regarding the release on parole of military prisoners shall be referred to the Competent Authority under section 179 of the Central Act. In view of these express provisions of the Central Act read with the provisions of Article 254 of the Constitution of India the judgment delivered by the Single Bench can be said to be a decision given per incuriam. The decision of the Madhya Pradesh High Court in Sita Ram Barelal''s case (supra) is not relevant inasmuch as the same does not relate to a military prisoner.

As a result of the above discussion, it is held that the question of the release of a military prisoner on parole is governed by the Central Act i.e. the Army Act, 1950, the rules framed and the instructions issued thereunder and not by the State Act i.e. the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988. The first question is answered accordingly.

Question No. ii:

The request of the petitioner for his release on parole for agricultural purposes has been rejected by the competent Military Authority vide letter dated February 28, 1995 (Annexure P.1). The same reads as under:

"RELEASE ON PAROLE OF CONVICT/EXSERVICEMAN KASHMIR SINGH S/O HUSHIAR SINGH.

Sir,

Kindly refer to your letter No. 8964 dated 11 February, 1995.

The case was placed before General Officer Commanding 7 Infantry Division. The General Officer has directed that the punishment awarded to No. 1425636A Sigmn (LNK) EFS Kashmir Singh was after considered deliberation and commensurate to offence committed i.e. firing two shots from his 9 mm carbine on a Junior Commissioned Officer. Release on bail at this early stage will be detrimental to military discipline."

Admittedly, the petitioner has already undergone a sentence of more than 3 years today. He was also granted emergency parole from 21.6.1994 to 29.6.1994 which he enjoyed peacefully without any untoward incident. His case for six weeks'' parole for agricultural purposes has been verified and recommended by the concerned District Magistrate. The conduct of the petitioner inside the jail has been found to be good and he has not committed any jail offence so far. The respondent i.e. the State of Haryana, District Magistrate, Rohtak, and the Superintendent, District Jail, Rohtak, have got no objection for granting parole to the petitioner from law and order point of view.

Shri R.S. Surjewala, Advocate, learned counsel for the respondents, while opposing the request of a the petitioner, has contended that parole is not a matter of right of prisoner but is only a concession to be given under certain circumstances specified by the Government and the Army Authorities in the two letters dated August 25, 1986 (Annexure R.4/1) and dated 13.11.1986 (Annexure R.4/2), and that the case of the petitioner seeking parole for agricultural purposes does not fall within any of the categories mentioned in Appendix ''D'' of the letter dated November 13, 1986 (Annexure R.4/2).

On the other hand Ms. Vandana Malhotra, Advocate, learned counsel for the petitioner, has argued that the instructions contained in the two letters referred to by the Military Authorities cannot be said to be exhaustive and keeping in view the object of granting parole to a convict, this Court, in exercise of its extraordinary jurisdiction, can direct the Authorities to release the petitioner on parole for agricultural purposes.

It cannot be disputed that the impugned order (Annexure P.1) of the competent Military Authority is to be tested on the touchstone of Articles 14 and 21 of the Constitution. While interpreting Articles 14 and 21 of Constitution in the context of a claim for release on parole by a prisoner, a Division Bench of the Delhi High Court in Crl. Writ Petition No. 575 of 1995 titled as Shakuntala Devi v. State decided on 6.12.95 made the following meaningful observations:

" Under our Constitution, deprivation of personal liberty as penal policy is purposive because the imprisonment of the criminal is sanctioned as a measure of social defence and individual rehabilitation. The focus of interest in penology is the individual and the goal is salvaging him for society. Time and again the Apex Court has held that all aspects of criminal justice fall under the umbrella of Articles 14, 19 and 21 of the Constitution. Further the Apex Court has sought to humanise prison administration to some extent through its various pronouncements and it has also laid great emphasis on the right of a prisoner to the integrity of his physical person and mental personality. The Apex Court views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a measure of social defence. This compassionate outlook is reflected in the decisions rendered by the Apex Court in Sunil Batra v. Delhi Administration, A.I.R. 1980 S.C. 1579; Sunil Batra v. Delhi Administration, A.I.R. 1978 S.C. 1675; Kishore Singh v. State of Rajasthan, A.I.R. 1981 S.C. 625; Rakesh Kaushik v. State, A.I.R. 1981 S.C. 1767; Charles Sobhraj v. Supdt. Jail, Tihar, A.I.R. 1978 S.C. 1514; T.V. Vatheeswardhan v. State of Tamil Nadu, A.I.R. 1983 S.C. 361. Since, the rationale of court sentence is social in defence coupled with personal correction, it is the continuing responsibility of the Court to ensure that the penological purpose of sentence is not defeated by the prison administration and the prison system responds to the purpose of sentence."

Thus, the parole is part of penal and prison reform with a view to humanise the prison system. The purpose and object of granting parole are:

(i) to enable the inmate to maintain continuity with his family life and deal with family matters,

(ii) to save the inmate from the evil effects of continuous prison life.

(iii) to enable the inmate to maintain constructive hope and active interests in life."

Thus release on parole is a wing of reformative process and is expected to provide opportunity to the prisoner to transform himself to be a useful citizen. Reference may also be made to a decision of the Apex Court rendered in Inder Singh v. State (Delhi Administration), A.I.R. 1978 S.C. 1091.

It is settled law that convicts are not by mere reason of conviction denuded of all the fundamental rights which they otherwise possess. In Sunil Batra v. Delhi Administration, A.I.R. 1978 S.C. 1675, their Lordships of the Supreme Court were pleased to observe in para 53 of the judgment as under:

"For what is punitively outrageous, scandalizing/unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner''s shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority."

Having discussed the position of law including the right to life and liberty as guaranteed by the Constitution of India, let us turn to the case in hand.

The request of the petitioner has been rejected by the Military Authority solely on the ground that the punishment was awarded after due deliberation and the same commensurate to the offence committed, and his release on parole at this early stage would be detrimental to the military discipline. This order appears to be quite indefinite and ambiguous. The request for parole for agricultural purposes has not been considered even in the context of the guidelines contained in para 13 read with Appendix ''D'' of the letter dated November 13, 1986 (Annexure R.4/2). While considering the question of the release of a prisoner on parole for a short period, the nature and length of sentence or the magnitude of the crime committed by the prisoner are not relevant at all. In construing the question of grant of parole to a prisoner, the Government including the Military Authorities in the scheme of the Prison Administration must make a constructive and a purpose oriented approach, and exercise its beneficent 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.

Even if the request of the petitioner for his release on parole for agricultural purposes is to be construed on the basis of the instructions contained in Appendix ''D'' of the letter November 13, 1986 (Annexure R.4/2) the case definitely falls within the ambit of clause (c) of para 1, which reads as under :

"(c) Any other emergent/unforeseen contingency like marriage of dependent children in the family, where in the opinion of the competent authority the presence of the inmate is considered essential."

The emergency referred to in this clause is to be construed from the point of view of the prisoner and not that of the Competent Authority. The petitioner admittedly owns agricultural land in his village. There is no male member besides him to carry out agricultural process on this land. His family consists of his wife, a minor daughter and aged mother. The source of livelihood of this family is agriculture only and none else. In these circumstances, it cannot be said by any stretch of imagination that this is not a case of emergency as envisaged by clause (c) of para 1 of Appendix ''D'' of the letter Annexure R.4/2. His case has already been recommended by the jail authorities which confirms that civil convicts also enjoy the same privilege under the State Prison Rules which fact further fulfils the condition laid down in para 2(a) of the said instructions.

Therefore, I am constrained to observe that the operative reason for the military action in rejecting petitioner''s prayer for grant of parole is not legitimate and relevant, but is devoid of human benediction and outside the area of permissible consideration. Consequently, the impugned order cannot be allowed to stand. This question is answered accordingly.

As a result of above discussion, this petition is allowed. The competent Military Authority is directed to reconsider the case of the petitioner in the light of the observations made above within a period of one month from the date of the receipt/production of a copy of this order. The Registry of this Court is directed to immediately remit a copy of this order to the Mukhyalaya 7 Infantry Division, Headquarters, 7 Infantry Division, C/O 56 APO.