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1984 Supreme(HP) 46
High Court Of Himachal Pradesh
P.D.DESAI,H.S.THAKUR
KESAR SINGH GULERIA - Appellant
Versus
STATE OF HIMACHAL PRADESH - Respondent
Cr. Writ Petition No. 13 of 1984
Decided On : 06/27/1984
For the Petitioner Nemo:Petition through jail. For the Respondent(s) Shri P. N. Nag, Advocate General for the respondents.
The requirement of furnishing a security bond and a surety bond before temporary release is not mandatory and can be waived in appropriate cases, such as when a prisoner is unable to furnish such bonds due to poverty.
Headnote:
PRISONERS - TEMPORARY RELEASE - PAROLE AND FURLOUGH - CONDITIONS - SECURITY BOND AND SURETY BOND - WAIVER - CIRCUMSTANCES - GUIDELINES.
Fact of the Case:
The petitioner, a convict undergoing life imprisonment, challenged the non-consideration of his case for premature release and non-consideration of his case for being released on parole.
Finding of the Court:
1. The court held that the relevant statutory provisions and rules governing the temporary release of prisoners on parole or furlough must be construed and implemented in a manner that does not expose the enactment to the vice of unconstitutionality. 2. The court held that the requirement of furnishing a security bond and a surety bond before temporary release is not mandatory and can be waived in appropriate cases, such as when a prisoner is unable to furnish such bonds due to poverty. 3. The court held that the Releasing Authority has the discretion to waive the requirement of furnishing bonds in appropriate cases, taking into account relevant factors such as family ties, roots in the community, and history-sheet. 4. The court held that the amount of the security bond and the surety bond, if required, should be fixed with due regard to the circumstances of the case and should not be excessive.
Issues: 1. Whether the requirement of furnishing a security bond and a surety bond before temporary release is mandatory. 2. Whether the Releasing Authority has the discretion to waive the requirement of furnishing bonds in appropriate cases. 3. What factors should be considered by the Releasing Authority in determining whether to waive the requirement of furnishing bonds. 4. How the amount of the security bond and the surety bond should be fixed.
Ratio Decidendi: 1. The court held that the relevant statutory provisions and rules governing the temporary release of prisoners on parole or furlough must be construed and implemented in a manner that does not expose the enactment to the vice of unconstitutionality. 2. The court held that the requirement of furnishing a security bond and a surety bond before temporary release is not mandatory and can be waived in appropriate cases, such as when a prisoner is unable to furnish such bonds due to poverty. 3. The court held that the Releasing Authority has the discretion to waive the requirement of furnishing bonds in appropriate cases, taking into account relevant factors such as family ties, roots in the community, and history-sheet. 4. The court held that the amount of the security bond and the surety bond, if required, should be fixed with due regard to the circumstances of the case and should not be excessive.
Final Decision: The court held that the relevant statutory provisions and rules governing the temporary release of prisoners on parole or furlough must be construed and implemented in a manner that does not expose the enactment to the vice of unconstitutionality. The court also held that the requirement of furnishing a security bond and a surety bond before temporary release is not mandatory and can be waived in appropriate cases, such as when a prisoner is unable to furnish such bonds due to poverty. The court further held that the Releasing Authority has the discretion to waive the requirement of furnishing bonds in appropriate cases, taking into account relevant factors such as family ties, roots in the community, and history-sheet. Finally, the court held that the amount of the security bond and the surety bond, if required, should be fixed with due regard to the circumstances of the case and should not be excessive.
P. D. Desai, C. J.—Rule. To be heard today.
2. The learned Advocate General waives service of the Rule on behalf of the respondents.
3. The petitioner is a convict undergoing the sentence of life imprisonment. He is incarcerated in the Model Central Jail, Nahan. According to the official version, he has undergone actual imprisonment for a period of 8 years, 7 months and 6 days and total imprisonment, inclusive of remission, for a period of 13 years, 9 months and 16 days as on June 20, 1984. The petitioner has, inter alia,, complained herein regarding two matters : first, non-consideration of his case for premature release in light of the policy of the State Government on the subject and, secondly, non-consideration of his case for being released on parole. So far as the first complaint is concerned, pursuant to an order made in a Writ Petition instituted earlier by the petitioner, the State Government is required to consider the case for the premature release of the petitioner in the month of November, 1985, No further orders are, therefore, required to be made in that regard in the present proceeding. So far as the grievance relating to non-release on parole is concerned, the Court had made an order on April 16, 1984, directing the Inspector General of Prisons to examine the petitioners prayer with regard to his being released on parole. Pursuant to the said order, the petitioner was ordered to be released on parole for a period of six weeks, vide order dated April 19, 1984, on his furnishing a personal bond and a surety in the sum of Rs. 10,000. Pursuant to the said order, the petitioner is stated to have been released on parole on his executing a personal bond and upon a surety having been furnished by his elder brother,
4. In view of the foregoing, the Writ Petition does not survive. However, during the course of the hearing of the Writ Petition, the question with regard to the terms and conditions on which a prisoner undergoing sentence of imprisonment could he released on parole of furlough as the case may, cropped up for consideration. Since it appears to the Court that the true scope, content and effect of the relevant statutory provisions are not properly appreciated by the competent authority entrusted with the power, function and duty to temporarily release the prisoners on parole or furlough, as the case may be, it is expedient in the interest of justice to dwell on the subject.
5. Section 3 of the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 (hereinafter to be referred as "the Act") empowers the State Government, or any officer duly authorised by it in that behalf, in consultation with the District Magistrate, to temporarily release for a specified period any prisoner, if the government is satisfied about the existence of the grounds mentioned in the said section. Section 4 empowers- the State Government or any other officer duly authorised by it in that behalf, in consultation with the District Magistrate, to release temporarily,, on furlough, any prisoner who has been sentenced to a term of imprisonment for not less than five years, subject to the fulfillment of certain conditions. The power to release a prisoner on parole or furlough is subject to such conditions and is exercisable in such manner as may be prescribed Section 6 m substance provides that notwithstanding anything contained in Sections 3 and 4, no prisoner shall be entitled to be released on parole or furlough, if, on the report of the District Magistrate, the government or an officer authorised in this behalf, is satisfied that his release is likely to endanger the security of the State or the maintenance of public order Under Section 8, on the expiry of the period for which a prisoner is released under the Act, he has to surrender himself to the Superintendent of the Jail from which he was released. If the prisoner does not surrender himself accordingly within a period of 10 days from the date on which he should have
