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2023 DIGILAW 314 (PNJ)

Shiv Kumar @ Shiva v. State U. T. Chandigarh

2023-01-19

SANJIV BERRY, TEJINDER SINGH DHINDSA

body2023
JUDGMENT Sanjiv Berry, J. (Oral) The instant petition has been filed under Article 226 of the Constitution of India, challenging the impugned order dated 02.09.2022 (Annexure P-2) passed by Inspector General of Prisons, U.T. Chandigarh-Respondent No.1, vide which request of petitioner for temporary release to meet his family under Section 3 (1)(d) of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 (for short 'the Act of 1962') has been rejected on the ground that there is danger to the security of the State and prejudicial of the maintenance of public order. 2. A perusal of the paper book reveal that the petitioner is undergoing rigorous imprisonment of 3 years under Section 363 IPC with fine of Rs. 3000/-; RI for 05 years under Section 366 IPC with fine of Rs. 5000/-; and imprisonment for life under Section 376(2) IPC in case FIR No. 259 dated 28.06.2015 under Sections 363, 366, 376(2) of the Indian Penal code and Section 6 of POCSO Act, registered at Police Station Sector 39, Chandigarh and the said conviction had been challenged vide appeal number CRA-D-508-DB of 2017, which is pending before this Court. 3. Upon notice of motion being issued on 29.11.2022, respondents No. 1 to 3 filed their reply way of an affidavit dated 09.01.2023, wherein it has been submitted that the request moved by the petitioner for grant of parole had been forwarded to the District Magistrate, Maharaj Ganj (U.P), who reported vide letter dated 31.01.2022 not recommending the parole to the convict/petitioner and accordingly, considering the said report the Inspector General of Prisons U.T. Chandigarh passed the impugned order dated 09.02.2022 declining the parole as there is danger to the security of the State and prejudicial of the maintenance of public order. 4. Learned counsel for the petitioner contends that even prior to the present petition, petitioner had applied for parole on 24.06.2017 which was rejected by respondent No.1 vide order dated 09.11.2018 (Annexure P-1) without any sustainable basis. He further contends that parole cannot be refused on the ground that there is danger to the security of the State and prejudicial of the maintenance of public order. It is the duty of police and the District Magistrate to give protection to the public. 5. On the other hand, learned State counsel has opposed the prayer made by petitioner by way of reply dated 09.01.2023. It is the duty of police and the District Magistrate to give protection to the public. 5. On the other hand, learned State counsel has opposed the prayer made by petitioner by way of reply dated 09.01.2023. It is submitted that the petitioner has undergone imprisonment of 07 years 6 months and 07 days of actual sentence as on 09.01.2023. The parole case of the petitioner was duly initiated and was rejected by Inspector General of Prisons, U.T., Chandigarh, on the basis of verification report of District Magistrate, Maharaj Ganj, U.P. Keeping in view the danger to the security of the State and prejudicial of the maintenance of public order. 6. There were chances of petitioner's disturbing the State security and maintenance of public order if extended benefit of parole. Hence, it was urged that the petition did not deserve to be allowed. 7. After considering the respective submissions and present record, it transpires that the only reason given by Inspector General of Prisons, Chandigarh, for rejecting the prayer made by the petitioner is that his release will endanger the security of the State and will be prejudicial to maintenance of public order. This apprehension based on the report of District Magistrate, Mahaij Ganj (U.P.), however, is not substantiated by any material and hence cannot be made a ground to reject the prayer made by the petitioner. It is relevant to mention that Section 3(1)(aa) of the Punjab Good Conduct Prisoners' (Temporary Release) Act, 1962, permits temporary release of prisoner on parole on the grounds as mentioned therein. The petitioner wants to meet his family members. He has never been released on parole earlier. 8. Admittedly, there is no criminal case against the petitioner. The concession of parole to a convict is regulated by the statute and the authorities there under cannot act arbitrarily, capriciously or without due application of mind. The decision on such application of convict has to be well reasoned and speaking one. 9. Therefore, taking into consideration all the facts and circumstances and finding the impugned order having been passed in a routine mechanical manner and without any sustainable reasons, the impugned order dated 02.09.2022 (Annexure P-2) is hereby set aside. The decision on such application of convict has to be well reasoned and speaking one. 9. Therefore, taking into consideration all the facts and circumstances and finding the impugned order having been passed in a routine mechanical manner and without any sustainable reasons, the impugned order dated 02.09.2022 (Annexure P-2) is hereby set aside. The petitioner is ordered to be released on parole for a period of four weeks subject to his furnishing personal/surety bonds alongwith two surety bonds of sound sureties to the satisfaction of the concerned District Magistrate. And in addition concerned District Magistrate, may impose such conditions as may be necessary to secure the presence of the petitioner in jail after the parole is over and to ensure that the temporary release is not misused. 10. Petition, accordingly is disposed of.