Parole; Kuldeep Vs. State of Haryana [Punjab-Haryana High Court, 12-07-2016]

Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 – Parole – Release from Custody – Conduct in Jail – Temporary Release and Interim Suspension  – Difference Between – Marriages of sisters of the applicant – Held, temporary release under the Act and interim suspension are entirely different and even though the provisions of the 1988 Act create a bar for temporary release on parole, the same would not be an impediment in a given case for temporary suspension of sentence of imprisonment. Nothing has been alleged as regards his conduct in jail – Therefore, in the facts and circumstances, it would be just and expedient to suspend his sentence of imprisonment for a period of one week from the date of his release so as to enable him to attend the marriage ceremonies of his sisters.

# Interim Suspension of Sentence of Imprisonment


IN THE HIGH COURT OF PUNJAB AND HARYANA

S.S. Saron and Lisa Gill JJ.

12 July, 2016

CRM No. 19814 of 2016 in CRA-D No. 1333-DB of 2014

Kuldeep and another vs. State of Haryana

Present: Mr. N.S. Shekhawat, Advocate; for the applicant/appellant No. 2 – Anil . Mr. Randhir Singh, Additional AG, Haryana.

Learned counsel for the State has filed an affidavit of Sh. Daya Nand, Superintendent, District Jail, Rohtak mentioning the period of imprisonment undergone by Anil (applicant/appellant No. 2), besides, another short reply to the petition by way of affidavit of Sh. Daya Nand, Superintendent, District Jail, Rohtak. The same are taken on record.

Heard, learned counsel for the parties.

Criminal miscellaneous application has been filed seeking interim suspension of sentence of imprisonment of Anil (applicant/ appellant No. 2) for a period of one week to attend the marriages of his real sisters which are fixed for 14.7.2016.

According to learned counsel appearing for Anil (applicant/appellant No. 2), the marriages of Monika and Pooja who are real sisters of Anil (applicant/appellant No. 2) are to be solemnised on 14.07.2016. A reference has been made to the marriage invitation card (Annexure A-1). It is submitted that a speaking order (Annexure A-2) has been passed by the Jail Superintendent, District Jail, Jind declining temporary release to the applicant/appellant No. 2 on the ground that he is a “hardcore prisoner”. It is submitted that declining of parole to the applicant/appellant No. 2 would not disentitle him from interim suspension of sentence of imprisonment in terms of Section 389 (2) Cr.P.C.

In response, learned counsel for the State has submitted that Anil (applicant/appellant No. 2) stands convicted for the offence under Section 376-D and 506 read with 34 IPC, besides,

# Sections 6 and 14 (3) of the Protection of Children from Sexual Offences Act, (‘POCSO Act’ – for short)

by learned Additional Sessions Judge, Jind vide her judgment and order dated 19.07.2014 and 23.07.2014. He has been sentenced vide order dated 23.07.2014 to 20 years of imprisonment, besides, pay a fine of Rs.10,000/- and in default thereof undergo rigorous imprisonment for two months for the offences under Section 376-D/34 IPC and Section 6 of POCSO Act. He has also been sentenced to life imprisonment, besides, pay a fine of Rs.15,000/- and in default thereof undergo rigorous imprisonment for three months for the offence under Section 14 (3) of POCSO Act. Lastly, he has been sentenced to two years, besides, pay a fine of Rs. 1000/- and in default thereof undergo rigorous imprisonment for one week for the offence under Section 506/34 IPC.

Therefore, in view of the provisions of Section 2 (aa) of

# The Haryana Good Conduct Prisoners (Temporary Release) Act, 1988

(‘1988 Act’ – for short) as amended by the Haryana Good in Conduct Prisoners (Temporary Release) Amendment Act, 2013, it is submitted that he is a ‘hardcore prisoner’. According to Section 2 (aa) (i) (7) of the 1988 Act as amended, a ‘hardcore prisoner’ means a person who has been convicted of the offences as enumerated in sub-clauses (1) to (14) of Clause (i) of Section 2 (aa). Clause (7) relates a person who has been convicted of rape under Sections 376-A, 376-D or 376-E IPC. In the circumstances, the special provision for ‘hardcore prisoners’ in terms of Section 5 A (2) of the 1988 Act as amended by the Haryana Good Conduct Prisoners (Temporary Release) Amendment Act, 2014 would apply. In terms of the said special provisions for temporary release of ‘hardcore prisoners’ it is provided that the notwithstanding anything contained in Sections 3 and 4, no ‘hardcore prisoner’ shall be entitled to temporary release or furlough. In terms of the proviso to Section 5 A, it is provided that a ‘hardcore prisoners’ may be released on temporary basis to attend the marriage of his grand child or sibling; or death of his grand parents, parents, grand parents in-laws, parent-in-laws, sibling, spouse, child or grandchild under an armed police escort, for a period of forty eight hours to be decided by the concerned Superintendent Jail. The second proviso envisages further that a ‘hardcore prisoner’ may be released on temporary basis to attend the marriage of his daughter for 96 hours and for the marriage of his son for 72 hours under an armed police escort, to be decided by the concerned Superintendent of Jail. He shall intimate within 24 hours, the concerned District Magistrate or Superintendent of Police in this regard with full particulars of the ‘hardcore prisoner’ being so released. Therefore, in view of the amended provisions of the 1988 Act, it is submitted that applicant-appellant No. 2 is not entitled for interim suspension of sentence of imprisonment. However, it is not disputed that the marriages of sisters of Anil (applicant-appellant No. 2) are fixed for 14.07.2016. In the reply, it is submitted that the facts were verified on telephone from Sh. Chandi Ram, Sarpanch, Gram Panchayat, Village Kot Kalan District Hissar that the marriages are fixed for 14.07.2016.

We have given thoughtful consideration to the matter. The application for temporary release has been opposed primarily on the ground that the prisoner i.e. Anil (applicant-appellant No. 2) is not entitled for release of temporary basis under the 1988 Act, therefore, he is not entitled for interim suspension of sentence as well. However, it may be noticed that interim suspension of sentence of imprisonment and temporary release under the 1988 Act are entirely different aspects though in substance the effect of both are the same i.e. release from custody.

The Hon’ble Supreme Court in

# Dadu @ Tulsidas versus State of Maharashtra 2000 (4) R.C.R. (Criminal) 275

referred to the Constitution Bench of the Supreme Court in

# Sunil Fulchand Shah v. Union of India & Ors., (2000) 3 SCC 409

which considered the distinction between bail and parole in the context of reckoning the period, which a detenu was to undergo in prison. It was held as follows:-

“Bail and parole have different connotation in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non- bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word ‘bail’ is surety. In Halsbury’s Laws of England, 4th Edn., Vol.11, Para 166, the following observation succinctly brings out the effect of bail:

The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned.

‘Parole’, however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. The dictionary meaning of “parole” is:

The Concise Oxford Dictionary – (New Edition) “The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behaviour; such a promise; a word of honour”

Black’s Law Dictionary – (6th Edition) “Release from jail, prison or other confinement after actually serving part of sentence. Conditional release from imprisonment which entitles parolee to serve remainder of his term outside confides of an institution, if he satisfactorily complies with all terms and conditions provided in parole order.”

According to the Law Lexicon, “Parole” has been defined as:

“A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole.”

According to Words and Phrases:

“Parole” ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. People ex rel Rainone v. Murphy [135 NE 2d 567, 571, 1 NY 2d 367, 153 NYS 2d 21, 26].

‘Parole does not vacate sentence imposed, but is merely a conditional suspension of sentence. Wooden v. Goheen [Ky, 255 SW 2d 1000, 1002].

A ‘parole’ is not a ‘suspension of sentence’, but is a substitution, during continuance of parole, of lower grade of punishment by confinement in legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the court. Jenkins v. Madigan [CA Ind, 211 F 2d 904, 906].

A ‘parole’ does not suspend or curtail the sentence originally imposed by the court as contrasted with a ‘commutation of sentence’ which actually modifies it”.

Again in

# State of Haryana v. Nauratta Singh & Ors. [2000 (3) SCC 514]

it was held by this Court as under:

“Parole relates to executive action taken after the door has been closed on a convict. During parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also.”

The above shows that temporary release under the Act and interim suspension are entirely different and even though the provisions of the 1988 Act create a bar for temporary release on parole, the same would not be an impediment in a given case for temporary suspension of sentence of imprisonment. Besides, the fact that the marriages of sisters of the applicant-appellant No. 2 are to be solemnized on 14.7.2016 is not in dispute.

The affidavit that has been filed shows that applicant/appellant has undergone actual imprisonment of two years, eleven months and five days as on 11.7.2016. Nothing has been alleged as regards his conduct in jail. Therefore, in the facts and circumstances, it would be just and expedient to suspend his sentence of imprisonment for a period of one week from the date of his release so as to enable him to attend the marriage ceremonies of his sisters.

Accordingly, the criminal miscellaneous application is allowed and the sentence of imprisonment of Anil (applicant/appellant No.2) during the pendency of appeal shall remain suspended for a period of one week from the date of his release subject to his furnishing personal bond and surety to the satisfaction of learned Chief Judicial Magistrate/Duty Magistrate, Jind. The learned Chief Judicial Magistrate/Duty Magistrate, Jind shall specify the date on which Anil (applicant/appellant No. 2) shall surrender in jail after his release for a period of one week to be counted from the date of release.

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