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2019 DIGILAW 1084 (CHH)

HEMANT @ BHAGDAN NISHAD v. STATE OF CHHATTISGARH, THROUGH THE SECRETARY, HOME (JAIL) DEPARTMENT

2019-12-06

SANJAY K.AGRAWAL

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JUDGMENT Sanjay K. Agrawal, J. - If a person commits any crime, it does not mean that by committing a crime, he ceases to be a human being and that he can be deprived of those aspects of life which constitute human dignity. For a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. 2. The above-stated statement of law rendered by their Lordships of the Supreme Court in the matter of Asfaq v. State of Rajasthan and others, (2017) 15 SCC 55 squarely applies to the case of the petitioner herein who is a person convicted for offence under Sections 302 read with Section 34 and 324 read with Section 34 of the IPC, as he is in jail since 30-12-2007 and he was convicted by the Additional Sessions Judge, Sarangarh on 4-4-2009. The petitioner made an application for grant of leave under Rule 4 of the Chhattisgarh Prisoner's Leave Rules, 1989 on 23-11-2017, but though it was forwarded by the Jail Superintendent to the District Magistrate on 24-11-2017, yet that application remained pending for two years and it was not processed by the District Magistrate, Raigarh and the detained prisoner was compelled to file this writ petition before this Court seeking a direction to direct the District Magistrate, Raigarh to consider and decide his application for grant of leave in which this Court on 8-11-2019 directed the District Magistrate to file his own affidavit as to why the application of the petitioner for grant of parole was not considered for a period of two years. Affidavit was filed by the District Magistrate on 21-11-2019 and upon perusal of the affidavit so filed, this Court found that there was no satisfactory explanation by the District Magistrate, as the application was filed by the petitioner for grant of leave on 23-11-2017, whereas report from the Tahsildar was called only after a period of one year i.e. on 21-12-2018 and this Court, this time directed the Principal Secretary (Home) to file his own affidavit indicating the delay of two years in considering the application for parole filed by the petitioner and also directed the Chief Secretary to ensure that any suitable mechanism is devised to decide the application of the convicted prisoners for leave in accordance with law and asked him to place on record necessary measures taken in this behalf. Ultimately, today, when the matter is taken up for hearing, it has been brought on record that a circular dated 3-12-2019 has been issued by the Chief Secretary of the State in which it has been laid down that the first application for grant of leave under Rules 4 and 6 of the Chhattisgarh Prisoner's Leave Rules, 1989 will be decided by the District Magistrate as far as possible within a period of 15 days and further guidelines have been issued. Copy of the said circular has been circulated to all the District Magistrates. For ready reference and for sake of convenience, the circular dated 3-12-2019 is reproduced herein-below: - 3. The decision of the State Government to consider the application for grant of leave within the stipulated time and in accordance with the rules is a much needed step to consider the cases of convicted persons who are suffering jail sentence and is in line with the object of granting parole i.e. to make necessary efforts to rehabilitate a convict prisoner in the main stream of society based on "Karuna" (compassion) as well as on human consideration. 4. V.R. Krishna Iyer, J., speaking for the Supreme Court, in the matter of Inder Singh and another v. State (Delhi Administration), (1978) AIR SC 1091 , while highlighting the concept of "Karuna" with reference to right of a prisoner who stand convicted for a criminal offence, observed as under: - "... parole will be allowed to them so that their family ties may be maintained and inner tensions may not further build up. ..." 5. Likewise, in Asfaq (supra), Their Lordships of the Supreme Court while highlighting the object of leave of the convicted prisoner pertinently observed as under: - "17. From the aforesaid discussion, it follows that amongst the various grounds on which parole can be granted, the most important ground, which stands out, is that a prisoner should be allowed to maintain family and social ties. For this purpose, he has to come out for some time so that he is able to maintain his family and social contact. This reason finds justification in one of the objectives behind sentence and punishment, namely, reformation of the convict. The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. This reason finds justification in one of the objectives behind sentence and punishment, namely, reformation of the convict. The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, albeit for (sic such) periods. These gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the good of the society and, therefore, are in public interest. 18. The provisions of parole and furlough, thus, provide for a humanistic approach towards those lodged in jails. Main purpose of such provisions is to afford to them an opportunity to solve their personal and family problems and to enable them to maintain their links with society. Even citizens of this country have a vested interest in preparing offenders for successful re-entry into society. Those who leave prison without strong networks of support, without employment prospects, without a fundamental knowledge of the communities to which they will return, and without resources, stand a significantly higher chance of failure. When offenders revert to criminal activity upon release, they frequently do so because they lack hope of merging into society as accepted citizens. Furloughs or parole can help prepare offenders for success." 6. Since appropriate steps have been taken by the State to ensure that application for leave to prisoners will be considered expeditiously within 15 days from the date of making application and necessary guidelines have been issued in this regard allowing them to maintain their family and to reduce their inner tension consistent with aim and object of granting parole, I do not wish to say anything further in this aspect. Since now, the petitioner has already been released on parole, I hope and trust that all the District Magistrates who have been assigned with the task of considering the application for grant of leave under the said Rules, will consider the applications in accordance with law and the Rules as well as keeping in view the instructions, the time limit and the manner of exercising the jurisdiction that has been indicated by the State in the circular dated 3-12-2019. 7. With the aforesaid observation, the writ petition stands finally disposed of. No order as to cost(s). 8. A copy of this order be sent to the Chief Secretary of the State of Chhattisgarh for information and further necessary directions.