A hundred and fifty villagers objected in writing. Himachal Pradesh High Court grants the life convict parole anyway
Justice Rakesh Kainthla holds that an objection from the victim's side or from local residents cannot by itself decide a parole application, and that the authority must apply an independent mind.
A man serving life for murder asked for forty-two days out of prison to plough his land and see his family. The Gram Panchayat reported that 150 villagers had objected in writing to his release; the police recommended refusal on that basis, the District Magistrate agreed, and the competent authority rejected the application. The Himachal Pradesh High Court has set that rejection aside and ordered his release. An objection by the victim's side or by local residents, it held, cannot be the determinative ground — and nowhere in the file was there a finding that letting him out would endanger the security of the State or law and order.
The application and the objection
The petitioner was convicted under Sections 302 and 120B of the Indian Penal Code and under the Arms Act, and sentenced to rigorous imprisonment for life with a fine of Rs 50,000 on the murder count, seven years with a fine of Rs 20,000 for the conspiracy, and a short term with a fine on the arms charge.
He applied for parole of 42 days to carry out agricultural work and maintain social ties with his family, saying that his wife, his son and his aged father are unable to do the farming. His case was that his conduct inside the jail had been found satisfactory, that the main accused in the same matter had already been released on parole without any untoward incident being reported, and that the rejection of his application ran contrary to the Himachal Pradesh Good Conduct (Prisoners' Temporary Release) Act and the rules framed under it.
The State's reply set out how the decision was made. The application for 42 days' parole for agricultural purposes was forwarded to the Superintendent of Police and the District Magistrate for verification and recommendation. The Secretary of the Gram Panchayat reported that 150 villagers had raised objections through a written complaint to the Panchayat against his release. On that report the Additional Superintendent of Police recommended that parole not be granted, and the District Magistrate concurred with the police. The competent authority rejected the application on the strength of those district reports.
What parole is, and what it is for
Before coming to the objection the judgment sets out the law on temporary release at some length, and the exposition is useful because the two forms of release are routinely confused.
Parole is the conditional release of a prisoner on good behaviour, with regular reporting to a supervising officer for a set period; it is a form of conditional pardon by which a convict is released before his term expires. Where the release is temporary and on specified grounds, it operates as a mere suspension of the sentence, the quantum of the sentence remaining intact. It is normally granted where a family member has died or is seriously ill or the prisoner himself is ill; where a marriage in the family is to be celebrated; where temporary release is necessary for ploughing, sowing, harvesting or other agricultural operations on the prisoner's land or on his father's undivided land in his possession; or for any other sufficient cause. It can be granted only after part of the sentence has been served, and breach of its conditions returns the parolee to prison.
The judgment notes that many State Governments have framed guidelines to bring objectivity to the decision, and that several distinguish custody parole — for emergencies such as a death, a marriage or serious illness in the family — from regular parole, which is available for serious illness or a critical situation in the family, a marriage, the delivery of a child by the convict's wife where no one else can care for her, serious damage to the family's life or property including by natural calamity, the maintenance of family and social ties, and the filing of a special leave petition against a conviction.
Furlough is different in kind. It is a brief release in cases of long-term imprisonment, granted as a remission for good conduct and not for any particular reason, and the period spent on furlough does not have to be served again. The judgment lists the distinctions drawn in the decided cases, including State of Maharashtra v. Suresh Pandurang Darvakar: that parole requires a specific reason while furlough is meant to break the monotony of imprisonment; that the term of imprisonment is not reckoned against a period of parole but is against furlough; that parole may be granted a number of times while furlough is limited; and — the point that matters here — that because furlough is not granted for any particular reason, it can be denied in the interest of society.
Then comes the reasoning that frames the whole order. A convict must literally remain in jail for the term of the sentence, or for the rest of his life if he is a life convict. It is in that context that a short release has to be seen as an opportunity afforded to him not only to solve his personal and family problems but to maintain his links with society. Convicts too must breathe fresh air for at least some time, provided they maintain good conduct consistently during incarceration and show a tendency to reform. The redemption and rehabilitation of such prisoners, for the good of society, must receive due weight while they serve their sentences.
That framing also answers why agricultural work counts. It is not an indulgence read into the statute: ploughing, sowing and harvesting on the prisoner's own land, or on his father's undivided land in his possession, appears on the list of recognised grounds, and the maintenance of family and social ties appears on the list for regular parole. The petitioner asked for both, and said his wife, his son and his elderly father could not work the land without him. Nothing in the State's reply disputed any of that. The judgment also records the limit on the principle it is applying: it is in cases where there is some material before the Court that parole should be extended by taking a humanistic approach, so as to let the convict solve his personal and family problems and keep his links with society.
An objection is not a finding
On the ground actually relied on, the Court applied its own earlier decision in Rakesh Kumar v. State of H.P., which it quotes at length.
There the District Magistrate had declined to recommend parole on the strength of a police report resting on the statement of the victim's brother. The Court held that once the prisoner's conduct and behaviour in custody, with other inmates and with prison staff, was good, and nothing adverse was reported against him, a mere objection by the victim's brother could not be the sole basis for denying parole and so depriving him of the chance to move towards reformation and re-establish his family and social ties. An objection by local inhabitants or a relative cannot be given predominance and over-weightage while the other relevant material and reports furnished by the designated authorities are brushed aside. Where that happens, the entire decision-making process is vitiated.
Applying that, Justice Kainthla held that an objection raised by the informant or by the victim's family cannot be a ground for denying parole, for the straightforward reason that they would never agree to a release. The competent authority has to apply an independent mind and see whether the conditions laid down in the Act and the rules are satisfied. Here the authority had rejected the application simply because the District Magistrate had not recommended release in view of the objection raised through the police — and there was no finding anywhere that release on parole would endanger the security of the State or law and order. On that record the rejection could not be said to be proper.
Order
The petition was allowed and the petitioner ordered to be released on parole for 42 days, on furnishing a personal bond of Rs 1,00,000 and two surety bonds of the like amount to the satisfaction of the Superintendent of the Jail, with an undertaking to maintain good conduct during the parole period and to surrender before the Superintendent on its expiry. The Probation Officer was directed to keep a close watch on his activities and to report any deviation from the Court's directions. The Superintendent was left free to impose any other suitable condition at the time of release.
The order is a narrow one on its own terms — it does not say that objections are irrelevant, only that they cannot do the whole work of a decision. What the authority is required to produce is a view of its own, formed on the statutory conditions and on the material from every designated source, including the prison's report on conduct. An objection, however many signatures it carries, is an input to that exercise rather than a substitute for it.
Two features of this record made the rejection particularly hard to defend. The prisoner's conduct inside was satisfactory and nothing adverse was reported against him, so the correctional case for a short release was on the file and unanswered. And the main accused in the same case had already been let out on parole without incident, which left the refusal looking less like a security assessment than a response to local feeling. The Court's requirement of a finding on the security of the State or on law and order is the test that distinguishes the two.