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2017 Supreme(P&H) 1631
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
M.M.S. BEDI, AUGUSTINE GEORGE MASIH, JJ.
Anil @ Channis – Petitioner
Versus
State of Haryana and others – Respondents
CRWP-1308-2017
Decided On : 07-11-2017
For the Petitioner:Mr. Balraj Singh Dhull, Advocate
Parole--Statutory bar for grant of temporary release prior to expiry of one year of imprisonment--Rules under the Act of 1988 are not to be ignored
Headnote:
(A) Haryana Good Conduct Prisoners (Temporary Release) Rules, 2007, R.4(1)--Parole--Own Marriage--Petitioner was sentenced before marriage was fixed--Statutory bar for grant of temporary release prior to expiry of one year of imprisonment after conviction by earning first annual good conduct remission under Act--Thus petitioner not entitled to be temporarily release--Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, S.3(1) (b) and 10(2) (d). (Para 7)
Petitioner was convicted on 02.03.2017. When his marriage was fixed for 12.11.2017, the order of conviction and his sentence had already come into existence. It was known to the family members of the petitioner and the family members of the girl whose marriage is allegedly fixed with the petitioner for 12.11.2017 that the petitioner would be is in custody having been sentenced to undergo life imprisonment, on the date of marriage.
Merely because the marriage has been fixed on 12.11.2017, knowing the circumstances of the petitioner, by the family members, ipso facto will not confer any right on the petitioner to be released on parole by superseding the provisions of law
No person can claim ignorance of law to his benefits. It is statutory provision that the petitioner would be entitled for temporary release only after expiry of one year of conviction after having earned his first annual good remission report. Petitioner therefore, does not have a legally enforceable right to file the present petition under Article 226 of the Constitution of India. (Paras 15 and 16)
(B) Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, S.10(2) (d)--Parole--Statutory bar for grant of temporary release prior to expiry of one year of imprisonment after conviction by earning first annual good conduct remission under Act--Rules under the Act of 1988 are not to be ignored--Held;
(i) It has nowhere been laid down as a rule of law that provisions of Rule 4 (1) of the Rules are nullity being in violation of the authority of subordinate legislation provided under Section 10 (2) (d) of the Act;
(ii) Provisions of Rule 4 (1) providing eligibility condition, have never been set at naught being violative of provisions of the Act or any constitutional provision;
(iii) No straight-jacket formula can be laid down for applicability or waiver of Rules 4 (1) of Rules;
(iv) However, power of High Court under Article 226 of Constitution of India is not curtailed to grant any relief in interest of justice depending on circumstances of a particular situation-- Haryana Good Conduct Prisoners (Temporary Release) Rules, 2007, Rule 4(1). (Paras 13 and 14)
M.M.S. BEDI, J.
1. Claiming that marriage of the petitioner is fixed for 12.11.2017, the instant petition under Article 226 of the Constitution of India, has been filed for release on emergency parole for 20 days.
2. The petitioner has been denied right to be released on parole on the ground that as per the Haryana Good Conduct Prisoners (Temporary Release) Rules, 2007 (for short "the Rules"), a prisoner is not entitled to apply for parole before completion of one year imprisonment after conviction and has earned his first annual good conduct remission under the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (for short "the Act").
3. Notice to Advocate General, Haryana.
4. On asking of the Court, Ms. Shubhra Singh, Addl. A.G., Haryana, present in the Court, accepts notice. Copy given.
5. Counsel for the petitioner has submitted that there is no bar for enforcement of the right of parole under Section 3 (1) (b) of the Act which provides that the State Government may, in consultation with the District Magistrate or any other officer appointed in this behalf, release temporarily a prisoner on parole for a specified period, if the State Government is satisfied that marriage of the prisoner himself is to be celebrated. He has submitted that the Act does not provide any condition for grant of such parole.
6. We have considered the contentions and find that Section 10 of the Act enables the State Government to make rules for carrying out the purposes of the Act. Section 10 (2) (d) of the Act enables the State Government to provide for the conditions on which and the manner in which the prisoner may be released temporarily under the Act. In the exercise of powers under Section 10 (2) (d), the rule of eligibility has been provided in Rule 4 of the Rules which reads as follows:
"A prisoner shall be entitled to apply for parole only after he has completed one year of his imprisonment after conviction and has earned his first annual good conduct remission under the Act"
7. Rule 4 is a piece of legislation under the authority vested in the State Government under Section 10 (2) (d) of the Act.
8. In view of the statutory bar for grant of temporary release prior to the expiry of one year of imprisonment after conviction by earning first annual good conduct remission under the Act, the petitioner is not entitled to be temporarily released.
9. Counsel for the petitioner has relied upon a decision of this Court in Baljinder Singh Vs. The State of Punjab and another, 2014 (13) R.C.R. (Criminal) 122 wherein a Division Bench of this Court had granted emergency parole to a convict on the ground of his marriage. The said judgment does not indicate that the convict in the said case had not fulfilled the statutory requirement/eligibility, as such this judgment is not applicable to the facts of the present case and cannot be treated as a rule of law.
10. Counsel for the petitioner has also relied upon judgment of Deepak Vs. State of Haryana and another 2014 (4) R.C.R. (Criminal) 531 wherein the convict was granted parole prior to the period of one year of imprisonment to enable him to look after his seriously ill wife noticing that terms of Section 3 (1) (a) of the Act is not governed by Rule 4 as there is no restriction in the Act and the rules cannot supersede substantive provision of the Act. It appears that provisions of Section 10 (2) (d) of the Act were not brought for consideration before the Division Bench and the relief was granted taking into consideration the peculiar circumstances of the seriousness of the illness of the wife of the convict in that case.
11. Similar is the circumstances in the judgment cited by counsel for the petitioner in Rakesh Vs. State of Haryana and others 2015 (1) PLJ (Criminal) 394 wherein the factum of serious illness of the son of convict was considered as a circumstance to release the convict prior to the completion of period of one year of conviction.
12. Counsel for the petitioner has also placed rel
