People's Union for Civil Liberties vs State of Haryana

Sanjay Kishan Kaul, C.J.—The limited issue urged by learned counsel for the petitioner in this Public Interest Litigation filed before us is a challenge laid to Section 5-A of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 read with Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2012, which post amendment reads as under:-

5-A. Special Provisions for Hardcore prisoners:-

Notwithstanding anything contained in sections 3 and 4, a hardcore prisoner shall not be released on temporary basis or on furlough;

Provided that a hardcore prisoner may be allowed to attend the marriage of his child, grand child or sibling; or death of his grand parent, parent, grand parent in-laws, parent-in-laws, sibling, spouse or child under armed police escort for a period of forty eight hours to be decided by the concerned Superintendent Jail and intimation in this regard with full particulars of hardcore prisoner being released, shall be sent to the concerned District Magistrate and Superintendent of Police within twenty four hours.

The submission of learned counsel for the petitioner is that there cannot be an absolute bar on parole as is sought to be created by the said provision and to support this plea he has referred to the judgment of a Division Bench of Delhi High Court in Dinesh Kumar Mittal Vs. Govt. of NCT of Delhi In an elaborate judgment, while dealing with the constitutional validity of the Parole/Furlough Guidelines, 2010, applicable in the case of convicts, creating an absolute bar in respect of prisoners convicted of the offences of robbery, dacoity, arson, kidnapping, abduction, rape and extortion, it was observed that though it was permissible to have appropriate regulation, it may not be appropriate to have an absolute bar. In para. No. 18 of the aforesaid judgment, there is a discussion on "furlough" which is a brief release from the prison being given conditional and in case of long term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole and furlough is granted as a good conduct remission. The position in the case of ''parole'' would thus be slightly different. The conclusion in para. No. 48 of the judgment is that while authorities may be extra cautious in granting furlough to an inmate convicted of a serious crime against the person and/or whose presence in the community could attract undue public attention, create unusual concern, or depreciate the seriousness of the offence, the absolute bar created in clause 26.4 of the Guidelines of 2010 could not stand judicial scrutiny which makes a person ineligible for furlough merely on the basis of the nature of the crime committed by him. However, strict and stringent conditions attached for consideration of cases of such convicts for grant of furlough would serve the purpose.

Learned Addl. Advocate General, Haryana has expressed his apprehension about release of the persons convicted for heinous crime on parole/furlough as there is possibility of repeat of offence. He further submits that recent scrutiny has shown that numbers of them have jumped the parole and infact a Public Interest Litigation is pending on that issue. He further seeks to rely upon the judgment of the Hon''ble Supreme Court in case Krishan Lal Vs. State of Rajasthan and Another, to advance the proposition. However, in the facts of that case the conditions were imposed as part of sentence and if the sentence itself denies the right of parole/furlough, then the same should not be granted, the proposition with which the learned counsel for the petitioner has no quibble. Such a situation arises where a Convicting Court rather than imposing severe sentence of death penalty considers it appropriate to impose life imprisonment and that too subject to certain further conditions.

In view of the aforesaid judicial pronouncement, it is in the fitness of things that the State Government of Haryana should re-examine the provisions in question so as to eliminate an absolute bar and yet put stringent conditions so as to reduce the possibility of misuse. We may add that the matters such as jumping of parole, irrational pre-mature release are all fact oriented and that cannot be an excuse to create an absolute bar. There is a median position between an absolute bar and absolute discretion. We thus expect the State of Haryana to place before us the result of such consideration/amended provisions on this aspect within a period of two months from today and petition stands disposed of with the aforesaid directions.

List for compliance on 28.02.2014.