Tenzin Tasogyan Vs the State of Hp and Others

For the respondents : Mr. Tejasvi Sharma, Mr. Mohinder Zharaick, Mr. H.S. Rawat, Additional Advocates General, with Mr. Rohit Sharma and Ms. Ranjana Patial, Deputy Advocates General.

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Virender Singh, Judge.

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By way of the present writ petition, petitionerTenzin Tasogyan has invoked the extra ordinary writ jurisdiction of this Court, under Article 226 of the Constitution of India, seeking the following substantive

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reliefs, amongst others:

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1 Whether Reporters of local papers may be allowed to see the judgment? Yes.

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“i) Call the record from Kanda jail which shows petitioner conduct as he was confined from past more than 6 years. Kindly call the record of his conduct before the jail authority.

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ii) Issue an appropriate Writ/Order thereby directing the prison authority to grant parole with consideration of such facts as above mentioned in the interest of justice.”

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The petitioner has been convicted by the Court

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of learned Additional Sessions Judge, Fast Track Special Court (POCSO), Shimla, Himachal Pradesh, for the offences, punishable under Section 376 (3) IPC and Section 4 of the POCSO Act, vide judgment, dated 4^th May, 2023 and has been sentenced to undergo rigorous imprisonment for a period of twenty years and to pay a fine of 2₹ 5,000/-. 3. According to the petitioner, presently, he is lodged in Model Central Jail, Kanda, District Shimla, H.P. 4. The petitioner applied for grant of parole for a period of six weeks, by way of application, dated 30^th May, 2024, in order to arrange appropriate measures for his family.

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The said application of the petitioner is stated to have been rejected by respondent No. 2, on 22^nd February, 2025, vide Annexure P-1, without assigning any justifiable reason.

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On the basis of the above facts, a prayer has been made to quash and set aside the order, by virtue of which, the request of the petitioner for releasing him on parole, has been rejected. A prayer has also been made to allow his request for parole.

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When put to notice, the factual position, with regard to conviction and sentence imposed upon the petitioner, has not been disputed by the respondents.

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It has also not been disputed that the petitioner had applied for grant of six weeks’ parole, on 30^th May, 2024.

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According to the respondents, the request of the petitioner was duly forwarded to the District Authorities, i.e. District Magistrate and Superintendent of Police, Shimla. In pursuance of the same, District Magistrate, Shimla, has not recommended the prayer of the petitioner, on the ground that the crime committed by the petitioner has adversely affected the ideology of law, as well as, the mid of the people. The other allegations have also been controverted by the respondents.

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On the basis of the above facts, a prayer has been made to dismiss the writ petition.

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As per the custody certificate (Annexure R-2/2), the substantive sentence undergone by the petitioner, as on 14^th November, 2025, is four years, three months and twenty three days. The petitioner has applied for six weeks’ parole, which was recommended to be rejected by the District Magistrate, Shimla, vide letter, dated 26^th November, 2024.

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The primary purpose of releasing the convict on parole has elaborately been discussed by the Hon’ble Supreme Court, in Asfaq versus State of Rajasthan and others, reported in (2017) 15 SCC 55. Relevant paras-17 to 24, of the judgment, are reproduced, as under:

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“17. From the aforesaid discussion, it follows that amongst the various grounds on which parole can be granted, the most important ground, which stands out, is that a prisoner should be allowed to maintain family and social ties. For this purpose, he has to come out for some time so that he is able to maintain his family and social contact. This reason finds justifcation in one of thei objectives behind sentence and punishment, namely, reformation of the convict. The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the

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culprit are: deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, albeit for periods. These gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the good of the society and, therefore, are in public interest.

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18. The provisions of parole and furlough, thus, provide for a humanistic approach towards those lodged in jails. Main purpose of such provisions is to aford to themf an opportunity to solve their personal and family problems and to enable them to maintain their links with society. Even citizens of this country have a vested interest in preparing offenders for successful re-entry into society. Those who leave prison without strong networks of support, without employment prospects, without a fundamental knowledge of the communities to which they will return, and without resources, stand a significantly higher chance of failure. When offenders revert to criminal activity upon release, they frequently do so because they lack hope of merging into society as accepted citizens. Furloughs or parole can help prepare offenders for success.

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19. Having noted the aforesaid public purpose in granting parole or furlough, ingrained in the reformation theory of sentencing, other competing public interest has also to be kept in mind while deciding as to whether in a particular case parole or furlough is to be granted or not. This public interest also

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demands that those who are habitual offenders and may have the tendency to commit the crime again after their release on parole or have the tendency to become threat to the law and order of the society, should not be released on parole. This aspect takes care of other objectives of sentencing, namely, deterrence and prevention. This side of the coin is the experience that great number of crimes are committed by the offenders who have been put back in the street after conviction. Therefore, while deciding as to whether a particular prisoner deserves to be released on parole or not, the aforesaid aspects have also to be kept in mind. To put it tersely, the authorities are supposed to address the question as to whether the convict is such a person who has the tendency to commit such a crime or he is showing tendency to reform himself to become a good citizen.

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20. Thus, not all people in prison are appropriate for grant of furlough or parole. Obviously, society must isolate those who show patterns of preying upon victims. Yet administrators ought to encourage those offenders who demonstrate a commitment to reconcile with society and whose behaviour shows that aspire to live as law-abiding citizens. Thus, parole program should be used as a tool to shape such adjustments.

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21. To sum up, in introducing penal reforms, the State that runs the administration on behalf of the society and for the benefit of the society at large cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty. It is for this reason that in introducing such reforms, the authorities cannot be oblivious of the obligation to the society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty (by a

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Court) of having perpetrated a criminal act. One of the discernible purposes of imposing the penalty of imprisonment is to render the society immune from the criminal for a specified period. It is, therefore, understandable that while meting out humane treatment to the convicts, care has to be taken to ensure that kindness to the convicts does not result in cruelty to the society. Naturally enough, the authorities would be anxious to ensure that the convict who is released on furlough does not seize the opportunity to commit another crime when he is at large for the time-being under the furlough leave granted to him by way of a measure of penal reform.

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22. Another vital aspect that needs to be discussed is as to whether there can be any presumption that a person who is convicted of serious or heinous crime is to be, ipso facto, treated as a hardened criminal. Hardened criminal would be a person for whom it has become a habit or way of life and such a person would necessarily tend to commit crimes again and again. Obviously, if a person has committed a serious offence for which he is convicted, but at the same time it is also found that it is the only crime he has committed, he cannot be categorized as a hardened criminal. In his case consideration should be as to whether he is showing the signs to reform himself and become a good citizen or there are circumstances which would indicate that he has a tendency to commit the crime again or that he would be a threat to the society. Mere nature of the offence committed by him should not be a factor to deny the parole outrightly. Wherever a person convicted has suffered incarceration for a long time, he can be granted temporary parole, irrespective of the nature of offence for which he was sentenced. We may hasten to put a rider here, viz. in those cases where a person has been convicted for committing a serious office, the competent

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authority, while examining such cases, can be well advised to have stricter standards in mind while judging their cases on the parameters of god conduct, habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquility etc.

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23. There can be no cavil in saying that a society that believes in the worth of the individuals can have the quality of its belief judged, at least in part, by the quality of its prisons and services and recourse made available to the prisoners. Being in a civilized society organized with law and a system as such, it is essential to ensure for every citizen a reasonably dignified life. If a person commits any crime, it does not mean that by committing a crime, he ceases to be a human being and that he can be deprived of those aspects of life which constitute human dignity. For a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. {See – Sunil Batra (II) v. State (UT of Delhi) (1980) 3 SCC 488 , Maneka Gandhi v. Union of India (1978) 1 SCC 248 and Charles Sobraj v. Superintendent Central Jai, Tihar, New Delhi, (1978) 4 SCC 104.

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24. It is also to be kept in mind that by the time an application for parole is moved by a prisoner, he would have spent some time in the jail. During this period, various reformatory methods must have been applied. We can take judicial note of this fact, having regard to such reformation facilities available in modern jails. One would know by this time as to whether there is a habit of relapsing into crime in spite of having administered correctional treatment. This habit known as “recidivism” reflects the fact that the correctional therapy has not brought in the mind of the criminal. It also shows that criminal is hardcore who is beyond correctional therapy. If the correctional therapy

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has not made in itself, in a particular case, such a case can be rejected on the aforesaid ground i.e. on its merits.”

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(self emphasis supplied)

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In light of the above decisions, this Court would

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now proceed to consider the facts as to whether the relief of parole, as sought in the petition, on the ground to meet the family members, can be granted to the petitioner and that the rejection of the petitioner’s prayer, seeking his release on parole, is sustainable in the eyes of law.

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Considering the case of the petitioner, in view of the decision of the Hon’ble Supreme Court in Asfaq’s case (supra), this Court is of the view that the term ‘sufficient cause’ is to be interpreted, in view of the beneficial nature of the statutory provisions, in the Act, which are aimed at reformation and rehabilitation of the prisoners, as well as, enabling the petitioner to socialize with his family members. As such, the same can be said to be a ‘sufficient cause’.

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The ground, upon which, the prayer of the petitioner has been declined by the respondents, is the recommendation made by the District Magistrate, Shimla. The said recommendation has been made on the ground

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that the crime committed by the petitioner has adversely affected the ideology of law, as well as, the mind of the people.

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The prisoners should be allowed to maintain their family and social ties. They should also be given an opportunity to solve their personal and family problems and to enable them to maintain their links with society. Even otherwise, reasonable/stringent conditions can be imposed, in case, the relief, as claimed in the writ petition, is granted to the petitioner.

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The rejection order, dated 22^nd February, 2025 (Annexure P-1), does not contain any reason for rejection of the prayer, made by the petitioner. It seems that the respondents have passed the order mechanically, without applying his judicial mind that too, without considering the object, which the legislature, in its wisdom has enacted the Act.

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Consequently, the rejection order, dated 22^nd February, 2025 (Annexure P-1), does not pass the judicial scrutiny of this Court. As such, the same is quashed and set aside. The prayer, so made in the application

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(Annexure R-2/3) is allowed and the petitioner is ordered to be released on parole, for a period of six weeks.

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Accordingly, the present petition is allowed, in the following terms:

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(i) Order, dated 22^nd February, 2025 (Annexure P-1), rejecting the request of the petitioner for parole, is quashed and set-aside;

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(ii) Respondents are directed to extend the concession of parole to the petitioner, for a period of six weeks, on his furnishing a personal bond in the sum of 1,00,000/-, with₹ two sureties in the like amount, to the satisfaction of Superintendent of Jail, Model Central Jail, Kanda, District Shimla, H.P.;

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(iii) The petitioner shall also undertake that he shall not cause any threat or inducement to the victim or family of the victim, nor, try to contact them, in any manner;

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(iv) It is made clear that the petitioner shall surrender before Superintendent of Jail, Model Central Jail, Kanda, District Shimla, H.P., on expiry of parole period. In case, the petitioner breaches any of the conditions of parole order or creates any law and order problem, then, the respondents are free to cancel the parole and take action against the petitioner, in accordance with law;

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(v) In peculiar facts and circumstances, of the case, the respondents are at liberty to impose any other just and reasonable condition(s), in addition to the conditions mentioned hereinabove, if deemed fit and proper, to meet the ends of justice;

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(vi) Violation of any of the above conditions shall be treated as a negative factor for consideration of similar prayer, in future.

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