Bhura Khan Vs the State of Hp and Others

Neutral Citation No. ( 2024:HHC:14004-DB )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No. 12159 of 2024 Date of Decision: 10.12.2024

Bhura Khan ...Petitioner. Versus State of H.P. and ors. ...Respondents. Coram Hon’ble Mr Justice Vivek Singh Thakur, Judge. Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ For the petitioner: Mr. Karan Kapoor, Advocate. For the Respondents/State: Mr. Manoj Chauhan, Additional Advocate General.

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Vivek Singh Thakur, Judge (Oral)

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By way of this petition, petitioner has approached this Court for quashing and setting aside the communication dated 23.7.2024 (Annexure P-3), whereby it has been communicated that application of the petitioner for his temporary release on parole has been rejected in view of non-recommendation of District Authorities.

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From material placed on record, it is apparent that petitioner is a convict in case FIR No. 129 of 2015, dated 4.7.2015, registered in Police Station Baddi, under Sections 302 and 323 of the

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Neutral Citation No. ( 2024:HHC:14004-DB )

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Indian Penal Code and serving his sentence of rigorous imprisonment for life. It has been stated that as on date, petitioner is in Sub-Jail, Nalagarh, District Solan, H.P.

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Petitioner, including under-trial period, has undergone more than 07 years 11 months sentence.

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The main objection, as stated in the instructions imparted by Director General, Prisons and Correctional Services, H.P., vide communication dated 25.11.2024 is that case of the petitioner has been rejected by the competent authority on the basis of Non-Recommendation Report of the concerned District Authorities.

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From perusal of the instructions, it has been informed that petitioner is habitual offender and three cases i.e., FIR No. 126 of 2024, under Section 379 IPC, FIR No. 211 of 2004, under Section 379 IPC and FIR No. 488 of 2005, under Sections 323 and 504 IPC have been registered at Police Station, Bilari, Janpad, Muradabad, U.P. It has also been stated that in the instructions that there is high possibility of the petitioners absconding as he is criminal type of person.

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It has also been stated that petitioner had also applied for temporary release on parole on three occasions and on each occasion, his parole was rejected by the competent authority due to

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Neutral Citation No. ( 2024:HHC:14004-DB )

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non recommendation report of the concerned District Authorities. However, petitioner was released on parole for a period of 28 days from 2.5.2022 to 29.5.2022 in compliance of order dated 30.12.2021, passed by Division Bench of this Court in CWP No. 7547 of 2021, titled as Bhura Khan versus State of Himachal Pradesh and others.

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Admittedly, earlier after expiry of period of parole granted to him in furtherance of the orders passed by this Court, petitioner had surrendered without any fail. There is nothing on record to depict that during his temporary release on parole, petitioner had committed any offence or had created any law and order problem or caused any threat to the security or the State.

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The apprehension expressed in the reports of the concerned authority and for rejection of the application of the petitioner by the competent authority, from previous conduct of the petitioner during parole and his conduct in Jail while serving his sentence, appears to be inappropriate.

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Otherwise also, in case of breach of any condition of parole order for any unlawful activity, petitioner has to suffer consequences in accordance with law including cancellation of his temporary release on parole.

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It has been submitted by learned counsel for the petitioner that earlier petitioner was enlarged on temporary release

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Neutral Citation No. ( 2024:HHC:14004-DB )

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on parole in the year 2022 and now more than two years period has further lapsed and therefore, it is not a case where petitioner is claiming direction for his temporary release within a short span of time after the previous parole period.

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To substantiate claim of the petitioner, learned counsel for the petitioner has also referred judgment passed by Co-ordinate Bench vide which the petitioner was granted benefit of temporary release on parole.

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It has also been submitted that in similar circumstances, Coordinate Benches of this High Court vide judgment dated 19.10.2023 passed in CWP No.5978 of 2023 , titled as Ramesh Kumar vs. State of Himachal Pradesh and others ; judgment dated 16.10.2023 passed in CWP No.5965 of 2023 , titled as Retaish Kumar vs. State of H.P. & others ; judgment dated 09.10.2023 in CWP No.6562 of 2023 , titled as Pushp Raj vs. State of H.P. & others ; judgment dated 23.05.2023 passed in CWP No.1710 of 2023 , titled as Bihari Lal vs. State of H.P. & others ; judgment dated 23.07.2021 passed in CWP No.3516 of 2021 , titled as Virender Kumar alias Bindu vs. State of H.P. & others ; and judgment dated 20.05.2024 passed in CWP No.2640 of 2024 , titled as Lucky vs. State of H.P. & others , after taking into consideration pronouncement of the Supreme Court in Asfaq Vs. State of Rajasthan and others, (2017) 15 SCC 55 , have

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Neutral Citation No. ( 2024:HHC:14004-DB )

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enlarged the petitioner(s) therein on parole in similar circumstances.

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Taking into consideration entire material placed before us, we are of the considered opinion that petitioner cannot be denied parole on the ground which has been cited by the respondents for rejecting his application.

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Accordingly, rejection communicated to the petitioner vide communication dated 23.7.2024 (Annexure P-3) is quashed and set aside with direction to the respondents-State to reconsider the case of the petitioner for extending benefit of parole to him for a period of 28 days to be specified in appropriate order to be issued to the concerned Authority within seven days from today to ensure enlargement of the petitioner on parole after completing all necessary formalities, including furnishing of bonds etc. immediately thereafter.

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Needless to say that petitioner shall abide by the conditions imposed upon him by the concerned Authority, in accordance with law, and Rules applicable during the parole period, including to surrender before the Superintendent Jail concerned on expiry of parole period. Petitioner’s parole shall be liable to be cancelled in case of breach of any condition of parole order and/or

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Neutral Citation No. ( 2024:HHC:14004-DB )

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on creating law and order problem which shall be treated as a negative factor for consideration of his similar prayers in the future. 16. Accordingly, the petition is disposed of, so also pending application, if any.

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Petitioner is permitted to produce a copy of this judgment downloaded from the Website of the High Court before the Authorities concerned and the said authorities shall not insist for production of a certified copy, but, if required, may verify passing of the order from the Website of the High Court or otherwise.

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(Vivek Singh Thakur) Judge

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( Rakesh Kainthla) Judge

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10^th December, 2024 (Nikita)

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Digitally signed by KARAN SINGH GULERIA Date: 2024.12.11 16:07:48 IST

Bhura Khan v. the State of Hp and Others

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Bhura Khan v. the State of Hp and Others

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