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2002 DIGILAW 883 (PNJ)

Pyara Singh v. State of Punjab

2002-09-05

R.C.KATHURIA

body2002
JUDGMENT R.C. Kathuria, J. - Pyara Singh, petitioner has invoked the jurisdiction of this court seeking quashing of the order dated 28.9.2001 (Annexure P-1) passed by the Inspector General of Prisons, Punjab, Chandigarh rejecting his prayer for parole and directions to the respondents to release him on parole for a period of four weeks under Sections 3(1)(d) of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 (hereinafter referred to as the Act). 2. The petitioner, who is presently confined in Maximum Security Jail, Nabha, is undergoing rigorous imprisonment for 10 years in case bearing FIR No. 4 dated 14.1.1990 registered under Sections 506, 395, 365, 148, 149 of Indian Penal Code and Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA) with Police Station, Ballianwali as per order of sentence dated 22.7.2000 passed by the Additional Sessions Designated Court, Bathinda and also rigorous imprisonment for 10 years in case bearing FIR No. 6 dated 15.1.1990 registered under Sections 399 and 402 of the Indian Penal Code with Police Station, Nehianwala as per order dated 22.7.2000 passed by the Additional Judge Designated Court, Ferozepur at Bathinda. The petitioner had applied for his release on parole for house repairs for four weeks under the provisions of Section 3(1)(d) of the Act on the ground that his house needed urgent repairs to be carried out and there was no one except his old parents to look after the affairs of his family. In support of the stand taken, Panchnama (Annexure P-2) submitted by Sukhdev Kaur, mother of the petitioner has been placed on record. The District Magistrate and Senior Superintendent of Police, Bathinda did not recommend his case for release because of his association with the extremists and apprehending that if he was released on parole it would create law and order problem and any untoward incident could also take place. Consequently, the Inspector General, Jail Department, Punjab, Chandigarh had rejected his prayer as per communication No. 12523 G.I./P.1 R-9-2P 846 dated 4.10.2001 (Annexure P-1). Hence, the present petition. 3. In pursuance to the notice issued to the respondents, written statement on behalf of the respondents has been filed by way of affidavit of Jagmohan Singh, Deputy Superintendent of Police (Rural), Bathinda. Hence, the present petition. 3. In pursuance to the notice issued to the respondents, written statement on behalf of the respondents has been filed by way of affidavit of Jagmohan Singh, Deputy Superintendent of Police (Rural), Bathinda. It has been stated therein that the District Magistrate and the Senior Superintendent of Police, Bathinda had not recommended the release of the petitioner on parole as it would endanger the security of the State. Additionally, it was pleaded that the Panchayat members and other persons of village Bhissiana had furnished a Panchnama to the local police in which it had been stated that the petitioner had indulged in extremists activities and if he was released on parole, he would pose law and order problem and his release could also lead to any untoward incident. Taking into account the report submitted by the Senior Superintendent of Police, the District Magistrate, Bathinda did not recommended his case for release on parole. On the basis of his report, the prayer made by the petitioner was declined. It is averred that under the circumstances of the case the rejection of petitioners request is justified. 4. I heard learned Counsel representating the petitioner at length. None had put in appearance on behalf of the respondents at the time of arguments. 5. Learned counsel representing the petitioner-accused while seeking the quashing of the impugned order made three-fold submissions before me. Firstly that the petitioner had remained in custody for a period of five years as under trial prisoner prior to his conviction on 22.7.200 in case bearing FIR No. 6 dated 15.1.1990 registered with Police Station, Nehianwala and in FIR No. 4 dated 14.1.1990 registered with Police Station Ballianwali and is undergoing his sentence since 22.7.2000. During this period of confinement, no incident of misconduct has been attributed to the petitioner and thus in this manner the petitioner had undergone substantive portion of his sentence. Secondly, it was submitted that merely because the petitioner had been convicted and sentenced for offences under Sections 3 and 4 of the TADA besides other offences noticed above in two cases cannot be made the basis to draw an inference that release of the petitioner would lead to law and order problem and would, in any manner, endanger security of the State or maintenance of public order. Lastly, that impugned order (Annexure P-1) suffers from non-application of mind being on a printed proforma. 6. As the controversy turns around the provisions of Sections 3 and 6 of the Act, it would be appropriate to notice the relevant provisions which have bearing in this case. Section 3 of the Act reads 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; or (b) the marriage of the prisoners son or daughter is to be celebrated; or (c) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation on his land or any other land cultivated by him and no friend of the prisoner or a member of the prisoners family is prepared to help him in this behalf in his absence; (d) it is desirable to do so for any other sufficient cause." (2) The period for which a prisoner may be released shall be determined by the State Government so as not to exceed - (a) where the prisoner is to be released on the ground specified in clause (a) of sub-section (1), four weeks; (b) where the prisoner is to be released on the ground specified in clause (b) or clause (d) of sub-section (1), four weeks; and (c) where the prisoner is to be released on the ground specified in clause (c) of sub-section (1), six weeks. (2-A) Notwithstanding anything contained in sub-section (2), where a prisoner undergoing a sentence of life imprisonment, is to be released on the ground specified in clause (d) of sub-section (1), he may be released for a period of six months or less in parts, during the five years. (3) The period of release under this section shall not count towards the total period of the release of a prisoner. (4) The State Government may by notification authorise any officer to exercise its power under this Section in respect of all or any of the grounds specified therein." 7. (3) The period of release under this section shall not count towards the total period of the release of a prisoner. (4) The State Government may by notification authorise any officer to exercise its power under this Section in respect of all or any of the grounds specified therein." 7. It is further provided in Section 6 of the Act as under :- "6. Cases where consultation with District Magistrate not necessary or where prisoners are not to be released. - (i) It shall not be necessary to consult the District Magistrate where the State Government is satisfied that the prisoner maintained good conduct during the period of his earlier release under any of the aforesaid sections; and (ii) no prisoner shall be entitled to be released under this Act, if on the report of the District Magistrate, where consultation with him is necessary, the State Government or an officer authorised by it in this behalf is satisfied that his release is likely to endanger the security of the State or maintenance of public order." 8. The examination of the provisions of Section 3 of the Act noted above clearly spells out the grounds on which the parole can be granted to the prisoner. Section 6 of the Act expressly lays down that parole can be declined on two grounds, namely, if the act of the convict prisoner is likely to endanger the security of the State or it will be against the public order. As already noticed, the petitioner-accused stands convicted and sentenced in FIR No. 6 dated 15.1.1990 registered under Sections 399 and 402 Indian Penal Code with Police Station, Nehianwala as per order dated 22.7.2000 passed by the Additional Judge Designated Court, Ferozepur at Bathinda and in FIR No. 4 dated 14.1.1990 registered under Sections 506, 395, 365, 148 and 149 Indian Penal Code and Sections 3 and 4 of TADA with Police Station, Ballianwali as per order dated 22.7.2000 passed by Additional Judge Designated Court, Batinda and has been undergoing sentence of 10 years and fine in each of the above mentioned cases. 9. 9. In case Jasbir Singh v. State of Punjab, 1999(2) RCR(Crl.) 390, petitioner who was undergoing sentence of five years after conviction in case FIR No. 3 of 1995 registered under Sections 4 and 5 of the Explosive Substances Act, Section 25 of the Arms Act and Section 5 of TADA, had moved an application for release on agricultural parole under Section 3 of the Act which was declined as per order dated 21.12.1998 primarily taking into consideration the recommendations of the District Magistrate and the Senior Superintendent of Police that residents of the village has shown their apprehension of fear in the event of release of the petitioner and also because of his conviction under Section 5 of TADA. While rejecting the stand of the State, it was observed in paras 5 and 6 of the judgment as under :- "State is not such a weak organ of the Constitution that in the event of the release of one individual it cannot tame the activity of a person. It has not been shown in the impugned order Annexure P-1 how the petitioner will become a source of fear to the co-villagers in the event of his release. There is not an iota of evidence which has been shown in support of Annexure P-1 that petitioner had hurled threats to his co-villagers or any body else so that in the event of his ultimately release he became a problem in the maintenance of the public order. Without any basis, it is difficult for this court to hold that the petitioner would become a source of fear for his co-villagers. Even if he is a source of fear as stated by the Government in the impugned order, still it cannot be equated that the petitioner will create a problem for the maintenance of the public order which is a stronger term as compared "apprehension" of fear on release. Even if he is a source of fear as stated by the Government in the impugned order, still it cannot be equated that the petitioner will create a problem for the maintenance of the public order which is a stronger term as compared "apprehension" of fear on release. With regard as to whether uniform criteria can be laid down "as and when a person is convicted under TADA and his case is rejected under Section 6 of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962", in this regard it can be said that the case of a prisoner for parole can only be rejected if the Government comes to the conclusion that ultimately release of a person is likely to endanger the security of the State or maintenance of public order. The order must clearly reflect the mind of the State as to how it has reached to this particular conclusion. Conviction under TADA can be under Section 3, 4 or 5 of the Act. Again there are several categories as to how offences under Sections 3, 4 and 5 are constituted. A person may be in possession of one particular fire arm or he may be in possession of one Kilogram of RDX or other explosive substances. The possession of these incriminating articles per se will not bring the case of the State that by these acts of an individual it has endangered security of the State or maintenance of the public order. The State before declining the request of the prisoner under Section 6(ii) of the Act must satisfy the reasons that on account of particular past behaviour of the prisoner by virtue of his conviction either under the TADA or any other Act, the State feels that in the event of release of such person, he will become threat to the security of the State or maintenance of the public order. The uniform covenant cannot be introduced in the orders rejecting the case an individual for parole or furlough by taking shelter of the provisions of a particular act. In the present case order Annexure P-1 is totally barren and it does not reflect of the mind of the State how in the event of the release of the petitioner on parole, he will become a threat to the security of the State or maintenance of the public order. In the present case order Annexure P-1 is totally barren and it does not reflect of the mind of the State how in the event of the release of the petitioner on parole, he will become a threat to the security of the State or maintenance of the public order. On the contrary, the stand of the State as reflected in Annexure P-1 is that since the petitioner has been convicted in a TADA case, therefore, he is not entitled to parole. Such a sweeping criteria adopted by the State cannot be sustained in the eyes of law in view of Section 6(ii) of the Act and also in view of constitutional rights which have been given to an individual. In this view of the matter the impugned order Annexure P-1 stands quashed and directions are given to the respondents to release the petitioner on parole for a period of four weeks provided the petitioner furnished bail bond and surety bond to the satisfaction of the District Magistrate, Jalandhar who shall order for the release of the petitioner on accepting bail bond and surety bond." 10. One clear distinction discernible in the present case is that the conviction of the petitioner-accused was not only in FIR No. 6 dated 15.1.1990 under Sections 399 and 402 Indian Penal Code as per order dated 22.7.2000 passed by the Additional Sessions Judge, Bathinda but also in case bearing FIR No. 4 dated 14.1.1990 registered under Sections 3 and 4 of TADA besides other offences under Indian Penal Code noticed earlier as per order dated 22.7.2000 passed by the Additional Judge Designated Court, Ferozepur at Bathinda. In the above mentioned case conviction was recorded under Section 5 of TADA and not under Sections 3 and 4 of TADA. The ingredients of offence under Section 5 of TADA relate to unauthorised possession of any specified arms and ammunitions by the person involved in a notified area. Therefore, the present controversy essentially needs to be decided on the basis of facts and circumstances of this case. From the provisions of Sections 3 and 4 of TADA, it is clearly spelled out that the Parliament had considered the culpability dealt within these provisions as a serious threat to the society and for that reason stringent punishment had been provided for these offences. From the provisions of Sections 3 and 4 of TADA, it is clearly spelled out that the Parliament had considered the culpability dealt within these provisions as a serious threat to the society and for that reason stringent punishment had been provided for these offences. Examination of the provisions of Section 3(1) of TADA would show that it enumerates various activities which are considered to be terrorist acts aimed to overawe the government as by law established or terrorise the people or any section of the people or to affect the harmony among the different sections of the people. Therefore, conviction of the petitioner-accused under Sections 3 and 4 of TADA cannot be overlooked while considering his prayer. Thus, in my considered view the observations made in Jasbir Singh v. State of Punjab (supra) are non-applicable to the facts of this case. No doubt, for bringing the case of the petitioner within the ambit of Section 6 of the Act, after his conviction and during the period of his confinement the State Government has chosen to place on record and has relied on the recommendations of the District Magistrate and the Senior Superintendent of Police, Bathinda, who had maintained that release of the petitioner on parole would pose danger to the security of the State as he had been involved earlier in two heinous crimes. Additionally, they have also placed on record the Panchnama which had been submitted by the Panchayat members and other respectable of village Bhissiana, copy of which is Annexure R-1. This is signed by several persons, namely, Darshan Singh, Jangir Singh Panch, Jeet Singh, Ex-Panch, Avtar Singh, Panch, Mander Singh s/o Bogha Singh, Gurbachan Singh and Mander Singh s/o Jeet Singh, residents of Bhissiana. In this Panchnama, they had certified that if Pyara Singh son of Darbara Singh, resident of village Bhissiana, who is lodged in case FIR No. 6/90 under Sections 399 and 402 Indian Penal Code with Police Station, Nehianwala and confined in Central Jail, Nabha, is released on parole, it will create law and order problem and no person is willing to give statements in favour of his release on parole because he had been associated with extremist groups. They have also mentioned that his release would lead to any untoward incident. They have also mentioned that his release would lead to any untoward incident. The counsel for the petitioner has challenged the authenticity of the Panchanama because the petitioner has also placed on record the Panchnama dated 16.1.2000, copy of which is Annexure P-2, which had been submitted by Sukhdev Kaur and had been certified by Anita Devi, Sarpanch, Gram Panchayat, Bhissiana, Avtar Singh, Ranjit Kaur, Panch and Ranjit Singh, panch, wherein they had stated that there was no threat to maintenance of peace if Pyara Singh was released on parole. He pointed out that Avtar Singh had signed the Panchnama, Annexure R.1 as also Annexure P-2 and thus contradictory stand had been taken by him which itself is sufficient to discard the Panchnama, Annexure R-1, placed on record on behalf of the respondents. 11. No doubt, in case of apprehension of breach of peace it is the duty of the State to look into the matter and give protection to the people who expect such danger from the release of the petitioner on parole. But at the same time, the Court cannot overlook the fact that the petitioner-accused had been convicted and sentenced under Sections 3 and 4 of TADA which itself speaks of terrorist acts committed by him likely to endanger the security of the State and against the public order. One cannot ignore the basis on which prayer for parole had been declined because while considering the prayer, the report of the District Magistrate and the Senior Superintendent of Police had been taken into consideration which are based on the Police inquiry apart from the Panchnama furnished by the Panches and other respectable of village Bhissiana. The evaluation of the facts stated cannot be measured in golden scale and it is totality of the facts brought on record which has to be given due consideration. 12. Coming to the other stand taken on behalf of the petitioner, it cannot be disputed that the State has not contested the claim of the petitioner that the house of the petitioner requires repair. The plea raised that the prayer had been rejected by respondent No. 2 without application of mind as such is not substantiated on record. In the light of the above noted circumstances, I have come to the conclusion that respondent No. 2 was justified in rejecting the prayer of the petitioner for parole. The plea raised that the prayer had been rejected by respondent No. 2 without application of mind as such is not substantiated on record. In the light of the above noted circumstances, I have come to the conclusion that respondent No. 2 was justified in rejecting the prayer of the petitioner for parole. Consequently, there is no merit in the petition and the same is accordingly dismissed. Petition dismissed.