Allowed

Duni Chand v. State of Hp and Another

Himachal Pradesh HC2 Jul 2024CWP/2733/2024

Case brief

AI extract

What is this about?

A convict under Sections 302, 201, 376 and 364 IPC sought 30 days' parole. His application was rejected because he had served less than one year after conviction. Relying on its earlier ruling and the Supreme Court's interpretation of custody, the court held pre-conviction custody counts toward eligibility and granted parole.

What did the court decide?

Release on parole for 30 days on furnishing personal bond of Rs.1,00,000 with two sureties of Rs.1,00,000 each.

Duni Chand Vs State of Hp and Another — Bail and Remand | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:4305 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No.2733 of 2024 Date of Decision : 02.07.2024.

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Duni Chand …… Petitioner.

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Versus

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State of Himachal Pradesh and another ……Respondents.

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Coram:

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge The Hon’ble Mr. Justice Sushil Kukreja, Judge

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Whether approved for reporting?¹ No

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For the Petitioner : Mr. George, Advocate. For the Respondents : Mr. Anup Rattan, Advocate General with Mr. Yashwardhan Chauhan, Senior Additional Advocate General, Mr. Navlesh Verma, Ms. Sharmila Patial, Additional Advocates General, Mr. J.S.Guleria and Mr. Raj Negi, Deputy Advocates General.

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Tarlok Singh Chauhan, Judge (oral)

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The instant petition has been filed for grant of the following substantive relief:

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“That the Hon’ble Court may kindly be pleased to issue writ in the nature of mandamus, whereby the respondents & more particularly respondent No.2 may kindly be directed to release the petitioner on parole for a period of 30 days strictly in terms of the prescribed (Rules 1969) as framed under the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 (Rules 1969), so that the petitioner may be in a position to solve his personal as well as his family problems.”

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

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Neutral Citation No. ( 2024:HHC:4305 )

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The petitioner has been convicted and sentenced under

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Sections 302, 201, 376 and 364 of the Indian Penal Code vide judgment dated 02.11.2023 passed by learned Additional Sessions Judge, Sarkaghat, District Mandi, H.P. Presently, he is undergoing imprisonment at Model Central Jail, Kanda, District Shimla, H.P. and has admittedly undergone sentence of 8 years, 4 months and 3 days including remission as on 12.04.2024.

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The sole ground on which the application of the petitioner for grant of parole has been rejected is that even though he has undergone the aforesaid sentence, however, the entire period of custody is only as an under-trial, whereas, he has not even completed one year after his conviction and imprisonment which is mandatory as per Para 19.12 of the Prison Manual, 2021, which clearly provides that the convicts are eligible for release on parole and furlough on completion of one year of actual imprisonment to be counted from the date of admission to prison.

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This Bench had the occasion to consider the aforesaid provision in CWP No. 1447 of 2024 in case titled Meera Devi vs. State of Himachal Pradesh and others , decided on 08.04.2024, wherein it was observed as under:

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“4. Para 19.12 of Prison Manual, 2021 reads as under:-

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Subject to the above, eligibility for parole and furlough should be regulated as follows:

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Neutral Citation No. ( 2024:HHC:4305 )

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When due for first	When due for second	When due for
release on parole	release	subsequent releases
On completion of	After completion of six	After completion of
one year of actual	months of actual	six months of actual
imprisonment to be	imprisonment to be	imprisonment to be
counted from the	counted from the date	counted from the date
date of admission to	of his last return from	his last return from
prison.	parole.	leave.

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A bare perusal of the aforesaid para would go to show that a prisoner can seek his first release of parole only on completion of one year of actual imprisonment to be counted from the date of his imprisonment.”

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In view of the ratio laid down in the aforesaid judgment, the respondents cannot count the custody of the petitioner to be less than one year by relying upon the aforesaid provision ignoring the fact that prior being shifted to Model Central Jail, Kanda, the petitioner was already in custody and imprisonment though in different jails.

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In Sundeep Kumar Bafna vs. State of Maharashtra and another AIR 2014 SC 1745 , the Hon’ble Supreme Court examined the meaning of custody and while explaining the meaning of term “custody”, the Hon’ble Supreme Court made the following observations:

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“Meaning of Custody:

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Unfortunately, the terms ‘custody’, ‘detention’ or ‘arrest’ have not been defined in the CrPC , and we must resort to few dictionaries to appreciate their contours in ordinary and legal

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Neutral Citation No. ( 2024:HHC:4305 )

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parlance. The Oxford Dictionary (online) defines custody as imprisonment, detention, confinement, incarceration, internment, captivity; remand, duress, and durance. The Cambridge Dictionary (online) explains ‘custody’ as the state of being kept in prison, especially while waiting to go to court for trial. Longman Dictionary (online) defines ‘custody’ as ‘when someone is kept in prison until they go to court, because the police think they have committed a crime’. Chambers Dictionary (online) clarifies that custody is ‘the condition of being held by the police; arrest or imprisonment; to take someone into custody to arrest them’. Chambers’ Thesaurus supplies several synonyms, such as detention, confinement, imprisonment, captivity, arrest, formal incarceration. The Collins Cobuild English Dictionary for Advance Learners states in terms of that someone who is in custody or has been taken into custody or has been arrested and is being kept in prison until they get tried in a court or if someone is being held in a particular type of custody, they are being kept in a place that is similar to a prison. The Shorter Oxford English Dictionary postulates the presence of confinement, imprisonment, durance and this feature is totally absent in the factual matrix before us. The Corpus Juris Secundum under the topic of ‘Escape & Related Offenses; Rescue’ adumbrates that ‘Custody, within the meaning of statutes defining the crime, consists of the detention or restraint of a person against his or her will, or of the exercise of control over another to confine the other person within certain physical limits or a restriction of ability or freedom of movement.’ This is how ‘Custody’ is dealt with in Black’s Law Dictionary, (9th Ed. 2009):-

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“Custody- The care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is

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Neutral Citation No. ( 2024:HHC:4305 )

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subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Also the detainer of a man’s person by virtue of lawful process or authority.

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The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession. Term “custody” within statute requiring that petitioner be “in custody” to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty. U. S. ex rel. Wirtz v. Sheehan, D.C.Wis, 319 F.Supp. 146, 147. Accordingly, persons on probation or released on own recognizance have been held to be “in custody” for purposes of habeas corpus proceedings.”

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A perusal of the dictionaries thus discloses that the concept that is created is the controlling of a person’s liberty in the course of a criminal investigation, or curtailing in a substantial or significant manner a person’s freedom of action. Our attention has been drawn, in the course of Rejoinder arguments to the judgment of the Full Bench of the High Court of Madras in Roshan Beevi vs Joint Secretary 1984(15) ELT 289 (Mad), as also to the decision of the Court in Directorate of Enforcement vs Deepak Mahajan (1994) 3 SCC 440; in view of the composition of both the Benches, reference to the former is otiose. Had we been called upon to peruse Deepak Mahajan earlier, we may not have considered it necessary to undertake a study of several Dictionaries, since it is a convenient and comprehensive compendium on the meaning of arrest, detention and custody.

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Courts in Australia, Canada, U.K. and U.S. have predicated in great measure, their decisions on paragraph 99 from Vol. II Halsbury’s Laws of England (4th Edition) which states that – “Arrest consists of the actual seizure or touching of a person’s body with a view to his detention. The mere pronouncing of

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Neutral Citation No. ( 2024:HHC:4305 )

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words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer”. The US Supreme Court has been called upon to explicate the concept of custody on a number of occasions, where, coincidentally, the plea that was proffered was the failure of the police to administer the Miranda caution, i.e. of apprising the detainee of his Constitutional rights. In Miranda vs Arizona 384 US 436 (1966), custodial interrogation has been said to mean “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way”. In Minnesota vs Murphy 465 US 420 (1984), it was opined by the U.S. Supreme Court that since “no formal arrest or restraint on freedom of movement of the degree associated with formal arrest” had transpired, the Miranda doctrine had not become operative. In R. vs Whitfield 1969 CareswellOnt 138, the Supreme Court of Canada was called upon to decide whether the police officer, who directed the accused therein to stop the car and while seizing him by the shirt said “you are under arrest:”, could be said to have been “custodially arrested” when the accused managed to sped away. The plurality of the Supreme Court declined to draw any distinction between an arrest amounting to custody and a mere or bare arrest and held that the accused was not arrested and thus could not have been guilty of “escaping from lawful custody”. More recently, the Supreme Court of Canada has clarified in R. vs Suberu [2009] S.C.J.No.33 that detention transpired only upon the interaction having the consequence of a significant deprivation of liberty. Further, in Berkemer vs McCarty 468 U.S 420 (1984), a roadside questioning of a motorist detained pursuant to a routine traffic stop was not seen as analogous to custodial interrogation requiring adherence to Miranda rules.

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Neutral Citation No. ( 2024:HHC:4305 )

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It appears to us from the above analysis that custody, detention and arrest are sequentially cognate concepts. On the occurrence of a crime, the police is likely to carry out the investigative interrogation of a person, in the course of which the liberty of that individual is not impaired, suspects are then preferred by the police to undergo custodial interrogation during which their liberty is impeded and encroached upon. If grave suspicion against a suspect emerges, he may be detained in which event his liberty is seriously impaired. Where the investigative agency is of the opinion that the detainee or person in custody is guilty of the commission of a crime, he is charged of it and thereupon arrested. In Roshan Beevi, the Full Bench of the High Court of Madras, speaking through S. Ratnavel Pandian J, held that the terms ‘custody’ and ‘arrest’ are not synonymous even though in every arrest there is a deprivation of liberty is custody but not vice versa. This thesis is reiterated by Pandian J in Deepak Mahajan (AIR 1994 SC 1775) by deriving support from Niranjan Singh vs Prabhakar Rajaram Kharote (1980) 2 SCC 559. The following passages from Deepak Mahajan are worthy of extraction:-

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“48. Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words ‘custody’ and ‘arrest’ are not synonymous terms. Though ‘custody’ may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist

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Neutral Citation No. ( 2024:HHC:4305 )

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interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi.

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While interpreting the expression ‘in custody’ within the meaning of Section 439 CrPC, Krishna Iyer, J. speaking for the Bench in Niranjan Singh v. Prabhakar Rajaram Kharote observed that: (SCC p. 563, para 9)

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“He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions.”

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(emphasis added)

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If the third sentence of para 48 is discordant to Niranjan Singh, the view of the coordinate Bench of earlier vintage must prevail, and this discipline demands and constrains us also to adhere to Niranjan Singh; ergo, we reiterate that a person is in custody no sooner he surrenders before the police or before the appropriate Court. This enunciation of the law is also available in three decisions in which Arijit Pasayat J spoke for the 2-Judge Benches, namely (a) Nirmal Jeet Kaur vs State of M.P. (2004) 7 SCC 558 and (b) Sunita Devi vs State of Bihar (2005) 1 SCC 608 and (c) Adri Dharan Das vs State of West Bengal, (2005) 4 SCC 303, where the Co-equal Bench has opined that since an accused has to be present in Court on the moving of a bail petition under Section 437, his physical appearance before the Magistrate tantamounts to surrender. The view of Niranjan Singh (see extracted para 49 infra) has been followed in State of Haryana vs Dinesh Kumar (2008) 3 SCC 222. We can only fervently hope that member of Bar will desist from citing several cases when all that is required for their purposes is to draw attention to the precedent that holds the field, which in the case in hand, we reiterate is Niranjan Singh.”

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Neutral Citation No. ( 2024:HHC:4305 )

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Once a person’s liberty in the course of criminal investigation or trial is curtailed, obviously, the same would amount to custody and evidently the petitioner during the trial was in custody.

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In view of the aforesaid discussion and for the reasons as stated above, we find merit in this petition and the same is allowed. Accordingly, the respondents-authorities are directed to release the petitioner on parole for a period of 30 days on his furnishing personal bond in the sum of Rs.1,00,000/- (one lakh) with two sureties in the sum of Rs. 1,00,000/- each, to the satisfaction of the Superintendent Jail, Model Central Jail, Kanda, District Shimla, H.P. The petitioner shall surrender before the Superintendent Jail, Model Central Jail, Kanda, District Shimla, H.P. immediately on expiry of 30 days of parole. However, the petitioner’s parole shall be liable to be cancelled in case he breaches any of the conditions of the parole order and/or creates law and order problems, which shall be treated as a negative factor for consideration of his similar prayers in the future.

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Pending application(s), if any, also stands disposed of.

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( Tarlok Singh Chauhan ) Judge

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(Sushil Kukreja) Judge

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2^nd July, 2024.

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(krt)

Duni Chand v. State of Hp and Another

Case brief

What is this about?

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Duni Chand v. State of Hp and Another

Case brief

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