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2000 DIGILAW 85 (PNJ)

Makhan Singh v. State of Punjab

2000-01-21

BAKHSHISH KAUR

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JUDGMENT Bakhshish Kaur, J. - Makhan Singh and Jarnail Singh-petitioners were convicted and sentenced by the designated Court, Sangrur on April 19, 1998 in case FIR No. 17 dated 11.3.1992 registered under Sections 382/307 Indian Penal Code read with Section 5 of the Terrorist and Disruptive Activities Act (in short TADA) and Sections 25/54/59 Arms Act, P.S. Longowal. 2. Sukhdev Singh, father of Makhan Singh-petitioner No. 1 moved an application before the Superintendent District Jail, Nabha on May 8, 1999 for the release of his son on parole, enabling him to arrange for the eye operation of his 4 year old son, who is suffering from an eye injury. Copy of the application is Annexure P/2 and copy of the certificate issued by the doctor is Annexure P/1. Similarly, an application Annexure P/3 was moved by Manjit Kaur, wife of Jarnail Singh-petitioner No. 2 that she is required to be operated upon for some malgrowth in the pelvic region. She is the only lady in the house, therefore, her husband may be released on parole enabling him to take care of her. The certificate issued by the Medical Officer is Annexure P/4 whereby Manjit Kaur has been advised surgery - USG for pelvic region. The applications moved by the father of Makhan Singh, Annexure P/2 and wife of Jarnail Singh, Annexure P/3 were declined vide orders Annexures P/6 and P/7 mainly on the ground that there is apprehension of breach of peace as per the inquiry conducted by the District Magistrate and Senior Superintendent of Police. The petitioners have, therefore, filed this petition under Section 482 of the Code of Criminal Procedure for quashing the orders Annexure P/6 and P/7 and directing release of the petitioners for six weeks medical parole under Section 3(1)(a) of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 (hereinafter referred to as the Act) 3. The respondents Nos. 1 and 2 in their joint reply, have admitted that the petitioners were convicted and sentenced to five years R.I. besides fine of Rs. 1000/- under Section 5 of TADA and that the case of the petitioner for parole was initiated on June 1, 1999 by respondent No. 3. The petition has been resisted mainly on the ground that the Court had earlier dismissed the Criminal Misc. No. 14444-M of 1994 (Sarwan Singh v. State of Punjab) on 12.12.1994 and Criminal Misc. 1000/- under Section 5 of TADA and that the case of the petitioner for parole was initiated on June 1, 1999 by respondent No. 3. The petition has been resisted mainly on the ground that the Court had earlier dismissed the Criminal Misc. No. 14444-M of 1994 (Sarwan Singh v. State of Punjab) on 12.12.1994 and Criminal Misc. No. 19891-M of 1994 on 9.3.1995, holding that the case of the convict for parole cannot be considered before he undergoes the sentence awarded to him under the Act. It is, however, admitted that in Criminal Misc. No. 552-M of 1999, this High Court had granted parole to the petitioner in that case. The case in hand has been considered and rejected mainly on the ground that there is apprehension of breach of peace. 4. I have heard Mr. Navkiran Singh, Advocate, for the petitioners and Mr. I.P.S. Sidhu, A.A.G. for the State of Punjab. 5. For proper appreciation of the case, Section 3 and 6 of the Act are reproduced as under :- "3. Temporary release of prisoners on certain grounds :- (1) The State may, in consultation with the District Magistrate and subject to such conditions and in such manner as may be prescribed, release temporarily for a period specified in sub-section (2) any prisoner if the State Government is satisfied that :- (a) a member of the prisoners family had died or is seriously ill." 6. The petitioners have moved their respective applications for release on medical grounds, which is reflected in the applications Annexure P/2 and P/3 supported by the medical certificates issued by the concerned doctors, copies whereof are Annexure P/1 and P/4. 7. Parole of a convict can be denied in the circumstances mentioned under Section 6 of the Act, which reads as under :- "6. Prisoners not entitled to be released on certain cases :- Notwithstanding anything contained in sections 3 and 4, no prisoner shall be entitled to be released under this Act if, on the report of the District Magistrate, the State Government or any officer authorised by it in this behalf is satisfied that his release is likely to endanger the security of the State Government or the maintenance of public order." 8. Mr. Navkiran Singh, learned counsel for the petitioners contended that the petitioners, who were undergoing their sentences under TADA are entitled to parole as per provisions of the Act. Mr. Navkiran Singh, learned counsel for the petitioners contended that the petitioners, who were undergoing their sentences under TADA are entitled to parole as per provisions of the Act. The denial of parole to them is a serious human rights violation of the petitioners as it has been the consistent view of the Honble Supreme Court that the State should be liberal in allowing paroles and furloughs as those are necessary in order to speed up the process of normalization of a criminal. In case the prisoner is cut off from his family, relatives and friends, the reformative process receives a serious setback as the long time lapse of segregating the prisoner from his relatives and friends further criminalise the prisoner. 9. The learned counsel has also taken support from the observations made by R.L. Anand, J., who, while allowing parole to the convict in Criminal Misc. No. 552-M of 1999 (Jasbir Singh v. State of Punjab & Others), 1999(2) RCR(Crl.) 390 observed that the State is not a weak organ of the Constitution that in the event of the release of one individual, it cannot tame the activities of a person. In the given case in hand also, a careful reading of the orders Annexure P/6 and P/7 nowhere reveals that the petitioners will become a source of fear to their co-villagers and others in the event of their release. The convicts have not in any manner extended any threat, directly or indirectly, to the co-villagers or others. In fact, a general reference has been made that in connection with the parole case of the convicts, an inquiry has been conducted by District Magistrate and Senior Superintendent of Police and it was found that there is apprehension of breach of peace in their release. 10. Apprehension of breach of peace is a wide term. It cannot be equated with danger to the security of the State or danger to the maintenance of public order. 11. For the sake of repetition, adverting to the orders Annexure P/6 and P/7, whether the case of the convicts should be rejected simply on the ground that they were convicted under TADA, therefore, it is bound to be rejected under Section 6 of the Act, is not sufficient ground. 11. For the sake of repetition, adverting to the orders Annexure P/6 and P/7, whether the case of the convicts should be rejected simply on the ground that they were convicted under TADA, therefore, it is bound to be rejected under Section 6 of the Act, is not sufficient ground. In fact, it can be rejected only if there is sufficient material or substance in the conclusions arrived at in the inquiry conducted by the authorities concerned that the release of the convicts is likely to endanger the security of the State or maintenance of public order. This aspect is totally missing in the impugned orders. The convicts cannot be denied the right enshrined in the Constitution and the Act simply by taking recourse or shelter of the provisions of the Act that a person has been convicted under TADA. 12. For the aforesaid reasons, this petition is accepted. The impugned orders Annexures P/6 and P/7 are quashed. The respondents are directed to release the petitioners on parole for a period of two weeks commencing from January 28, 2000 till February 10, 2000. They will surrender before the Superintendent, Maximum Security Jail, Nabha on February 11, 2000. Bail bonds and surety bonds shall be furnished to the satisfaction of the District Magistrate, Sangrur. The petitioners shall not commit any offence during the period of parole. They shall avail the parole for the purpose for which it was applied for. In case they violate the terms and conditions of the bail bonds, the competent authorities will be at liberty to take them into custody. Petition allowed.