Kashmir Singh vs State of Haryana

P.K. Jain, J.

Kashmir Singh a spy in the army and a convict under section 307 of the Indian Penal Code by the General Court Martial and undergoing imprisonment for 7 years in District Jail, Rohtak, has approached this court for the second time, under section 482 of the Code of Criminal Procedure read with Articles 226/227 of the Constitution of India for his temporary release on parole for agricultural purposes.

It may be noted that in his earlier petition Criminal Misc. No. 11825M 1995 filed for a similar relief, the following two questions had arisen 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 P1) is violative of Articles 14, 19 and 21 of the Constitution of India ?

After considering the various arguments advanced at the Bar and noticing the various provisions including those of the Constitution of India, it was held that the question of the release of the military prisoner on parole is governed by the Central Act i.e. Army Act, 1985, rules framed and the instructions thereunder and not by the State Act i.e. the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988. The answer to the second question was given in affirmative. With these findings the earlier order passed by the Army Authorities rejecting request of the petitioner for parole was quashed and a direction was issued to reconsider the request in the light of the observations made in that order. However, the authorities have again rejected the request of the petitioner on the ground that the District Magistrate, Rohtak and Gram Panchayat Mehrana had not recommended the release of the petitioner on parole for the following reasons:

(a) Apprehension of disturbance in the law and order situation in the village by the presence of the petitioner by the Gram Panchayat.

(b) The one and a half acre of land owned by the petitioner was being cultivated by his brother and wife, as intimated by the Gram Panchayat.

(c) The District Magistrate Rohtak has agreed to parole being not recommended by the Gram Panchayat and has recorded his reasons.

Feeling aggrieved the petitioner has again approached this court by way of the present petition. The request has been opposed by the respondents. The grounds made basis by the Army Authorities for rejecting the request of the petitioner for the second time, have been enumerated above.

I have heard the learned counsel for the parties and have gone through the record.

From a bare perusal of the impugned order dated 3.4.1996 passed by the Army authorities rejecting the request of the petitioner, it is evident that the same is based on the recommendation of the District Magistrate, Rohtak and Gram Panchayat Mehrana, received by them vide letter dated 17.11.1995 from the Superintendent, District Jail, Rohtak. How this recommendation has originated is interesting to note.

Head Constable Raj Singh of Police Post Dujana goes to village Mehrana on 20.8.1995 and obtains a certificate (Annexure R3/4) signed by Ram Niwas, Vice Sarpanch and Ghasi Ram Lambardar of village Mehrana. The same is attested by said Head Constable. By producing the contents of this certificate, Head Constable Raj Singh prepares this report (Annexure R.3/5) on the same date which is accepted by Station House Officer, Jhajjar on 28.8.1995 and by Deputy Superintendent of Jail, Jhajjar on 20.9.1995 (Annexure R3/6). On the basis of this report received from Superintendent of Police, Rohtak, the Deputy Commissioner Rohtak, vide his letter (Annexure R. 3/2) informs the Director General of Prisons, Haryana that he agrees therewith and does not recommend the release of the petitioner on parole. The Superintendent, District Jail, Rohtak vide his letter dated 18.11.1995 (Annexure R.3/3) forwards this report to the General Officer Commanding, Headquarters 7 Inf Division, C/o 56 A.P.O. and on the basis of the same the Army authorities have rejected the request of the petitioner for parole. Thus, the rejection order is directly based on the certificate dated 20.8.1995 (Annexure R.3/4) which reads as under :

"Sir,

We certify that Shri Kashmir Singh son of Hoshiar Singh, Caste Jat, resident of village Mehrana is a permanent resident of village Mehrana and he was serving in the Army. About 56 years back Kashmir Singh had committed a serious offence while serving in the Army, on account of which he was sentenced to imprisonment. He is a criminal type person. He wants his release from the prison after making false excuses for carrying on agricultural operations. He owns 11/2 acres of land in the village which is being looked after by his wife Kamlesh and his brother. After being released on parole he can commit any offence. Therefore, he may not be sent to the village, on parole because there is a family feud going on amongst the relatives.

Sd/ Ghasi Ram S/o Desh Ram,

Lambardar, Caste Jat,

resident of Mehrana.

Sd/ Ram Niwas son of Ratti Ram

ViceSarpanch,

Caste Brahman,

resident of Mehrana.

Attested

Sd/ Raj Singh,

Head Constable,

P.P. Dujana, Dt. 20.8.1995"

A bare look at this certificate reveals that it has not been issued by the Gram Panchayat Mehrana, but by two individuals i.e. Ram Niwas Vice Sarpanch and Ghasi Ram Lambardar of village Mehrana. It would be erroneous to take it a certificate or verification report by or from the Gram Panchayat of village Mehrana.

The Army authorities have clearly ignored a certificate (Annexure P.2) already produced by the petitioner and forwarded to them and the same reads as under :

"Certificate .

Gram Panchayat, Mehrana, certify that Kashmir Singh S/o Hoshiar Singh is a permanent r/o village Mehrana, P.S. Jhajjar, District Rohtak. At present, he is undergoing imprisonment for 7 years in Distt. Jail Rohtak for the offence under section 307 I.P.C. peacefully.

The only source of income to his family is from agriculture produce. His family consists of his old mother, wife and a daughter aged 4 years who are unable to carry on agriculture work. His temporary release in the village is necessary for agriculture purpose.

Village Gram Panchayat further certify that there is no apprehension of breach of public peace on his temporary release in the village. Therefore, the Gram Panchayat strongly recommends his temporary release on parole for agriculture purposes.

With thanks.

Sd/ Ram Niwas

G.P. Mehrana Distt. Rohtak

Sd/ Santosh Panch.

Sd/ Balwan Panch.

Sd/ Girdhari Lal.

Sd/ Jaipal Singh, Panch,

Sd/ Ram Murti.

Sd/ Ram Singh Panch.

Sd/ Tara Chand Panch."

Sd/ Dharambir,

Sarpanch,

Gram Panchayat Mehrana,

Distt. Rohtak.

A bare perusal of this certificate goes to show that it has been issued by Gram Panchayat of village Mehrana and not by any individual. In view of this document, no credence ought to have been attached to Annexure R. 3/4 which is the sole basis of the report/recommendation sent by the District Magistrate, Rohtak.

It is not disputed even by Shri R.S. Surjewala, the learned counsel for the Army authorities that the petitioner owns atlest 11/2 acres of land in the village. Earlier his case was recommended by the Jail authorities. No Jail offence is being alleged against him. His conduct during his tenure inside the Jail till today is admittedly good. No other criminal history of any sort against the petitioner has been disclosed or pointed out either in the rejection order or at the Bar. The views that after being release on parole the petitioner can commit any offence, as expressed by the two individuals referred to above are merely surmises and conjectures on their part with no material in support thereof. Similarly apprehension of disturbance in the law and order situation in village is imaginary. Once the certificate (Annexure R. 3/4) is ignored from consideration, the impugned order of rejection falls to the ground as there is no other reason for rejecting the request of the petitioner. It may be clarified that even if the agricultural land owned by the petitioner is being looked after by his wife with the help of the brother of the petitioner, the same does not mean that the petitioner cannot ask for parole for agricultural purposes. Release of a army convict on parole neither amounts to indiscipline in the forces nor is dangerous to the law and order situation in the village. The parole is necessary and material to keep continuity with his family and to look after his family affairs. Therefore, the impugned order is erroneous in law.

For the foregoing reasons, this petition is allowed. Accordingly it is directed that the petitioner be released on four weeks'' parole for agricultural purposes on usual terms to the satisfaction of the District Magistrate, Rohtak.