Asfaq vs The State Of Rajasthan

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10464 OF 2017 (ARISING OUT OF SLP (C) NO. 16803 OF 2017)

ASFAQ .....APPELLANT(S)

VERSUS

STATE OF RAJASTHAN AND OTHERS .....RESPONDENT(S)

JUDGMENT

A.K. SIKRI, J.

Serial bomb blasts took place in five trains on December 06,

1993 at the behest of certain miscreants on the first anniversary

of the Babri Masjid demolition. As per the allegations of the

prosecution, a conspirational meeting was held in this behalf in

Lucknow a couple of months before, to carry out the aforesaid

operations. Six separate First Information Reports (FIRs) came

to be registered where this bomb blast had taken place, namely, Signature Not Verified

at Kota, Allahabad, Kanpur, Gujarat, Malkajgiri and Karjat. Five of Digitally signed by BALA PARVATHI Date: 2017.09.12 09:59:44 IST Reason:

these FIRs were clubbed together and the Central Bureau of

Page 1 of 24 Investigation (CBI) took up the investigation. During the course of

investigation, the provisions of the Terrorist and Disruptive

Activities (Prevention) Act, 1987 (hereinafter referred to as

‘TADA’) were also invoked. The appellant herein was one of the

accused persons and one of the allegations levelled against him

was that he had supplied explosive material to accused No.1 for

which he was paid money by the said accused. Outcome of the

trial by the CBI Court was that the appellant, along with others,

was convicted under TADA and awarded life imprisonment on

February 28, 2004. This conviction has been upheld by this

Court as well and, therefore, the conviction and sentence of the

appellant has attained finality. In this appeal, the issue pertains to

grant of parole to the appellant.

2) The appellant had submitted an application for grant of regular

parole for twenty days before the District Parole Advisory

Committee (hereinafter referred to as the ‘Advisory Committee’)

in the year 2014. His request was rejected by the said

Committee on the ground that it did not have the jurisdiction to

entertain parole for TADA prisoners. This action of the Advisory

Committee was challenged by the appellant in the form of writ

petition under Article 226 of the Constitution of India, which was

Page 2 of 24 filed in the High Court of Rajasthan. The High Court disposed of

this writ petition vide order dated March 21, 2014 with the

direction that his application be forwarded to the Advisory

Committee to examine the same in accordance with law. In

compliance of the aforesaid order, the Advisory Committee

considered the application of the appellant for parole on merits

and rejected it on the premise that the appellant had been

convicted under TADA and, therefore, his application could not be

considered in view of the Rajasthan Prisoners Release on Parole

Rule, 1958. The appellant again approached the High Court of

Rajasthan by means of another writ petition, which was disposed

of by the High Court on June 30, 2015 granting him liberty to file a

fresh application before the concerned competent authority for

grant of parole in terms of rules framed by the Government of

India in this behalf vide Notification dated November 9, 1955.

Armed with this order, the appellant preferred another parole

application with the Government of India. This was, however,

rejected by the Ministry of Home Affairs, Government of India vide

orders dated November 10, 2015. It may be noted that the

appellant had simultaneously moved an application for parole

before the State of Rajasthan as well. That application also came

to be rejected vide order dated November 16, 2015 on the ground

Page 3 of 24 that the Union of India had already rejected the parole of the

appellant. For the third time the appellant approached the High

Court seeking a prayer to the effect that he be released on parole

for twenty days. This petition was dismissed vide order dated

May 01, 2016 with the following observations:

“Having heard the rival submissions of the parties and after going through the relevant record, we are of the considered opinion that it is a case of serious and heinous crime where parole cannot be claimed as a matter of right. Further, in view of the fact that appeal has been decided by the Hon’ble Supreme Court, it would not be appropriate for exercise of discretion in favour of the petitioner.

The writ petition is accordingly dismissed. However if the petitioner, so desirous (sic – desires), may approach the Hon’ble Supreme Court for appropriate relief.”

Correctness of this order is the subject matter of the present

appeal.

3) As is clear from the above, the High Court did not deem it proper

to exercise its discretion and left the matter to this Court. It is

notwithstanding the fact that in the earlier paragraph, than the

paragraphs quoted above, the High Court has referred to some of

the judgments which were relied upon by the counsel for the

appellant. However, there is no discussion of those judgments or

applicability thereof to the facts of the present case.

Page 4 of 24

4) In view of the aforesaid background, submission made by the

learned counsel for the appellant was that merely because the

appellant was convicted of an offence which was of serious or

heinous nature would not be a ground to reject the plea of parole

outrightly. It was argued that the cases which were cited by the

counsel for the appellant before the High Court were also those

cases where the convicts were held guilty under the provisions of

TADA. It was argued that the purpose behind grant of parole was

altogether different and, therefore, the nature of offence would be

an irrelevant consideration.

5) Learned counsel appearing for the respondents refuted the

aforesaid arguments with the submission that the case of the

appellant was duly considered and rejected after finding that it

was not recommended by the District Magistrate and

Superintendent of Police of Dausa, Social Justice Department of

the State of Rajasthan and the Superintendent of Jail, Jaipur. It

was argued that all the aforesaid authorities had given adverse

reports about the appellant.

6) We have given our serious consideration to the respective

submissions made by counsel for the parties on either side.

Page 5 of 24

7) We may state at the outset that the reason because of which the

High Court dismissed the writ petition filed by the appellant herein

is not an apposite one and does not meet the test of law. The

petition is dismissed only on the ground that the appellant is

convicted in a case of serious and heinous crime and, therefore,

parole cannot be claimed as a matter of right. As per the

discussion that would follow hereinafter, the conviction in a

serious and heinous crime cannot be the reason for denying the

parole per se. Another observation made by the High Court is

that since this Court had decided the appeal of the appellant

affirming the conviction, it would not be appropriate for the High

Court to exercise its discretion in favour of the appellant and if he

so desires he may approach this Court for the said purpose. This

again amounts to abdication of the power vested in the High

Court. Insofar as conviction for the offence for which he was

charged, i.e. under the provisions of TADA, is concerned, no

doubt that has been upheld till this Court. However, the issue

before the High Court was entirely different. It was as to whether

the appellant is entitled to the grant of parole for twenty days

which he was claiming. Merely because the matter of conviction

of the appellant had come up to this Court would not mean that

the appellant has to be relegated to this Court every time, even

Page 6 of 24 when he is seeking the reliefs unconnected with the main

conviction. It is more so when in the first instance it is the High

Court which is supposed to decide such a prayer for parole made

by the appellant. With these remarks, we advert to the issue at

hand.

8) In the first instance, it would be necessary to understand the

meaning and purpose of grant of parole. It would be better

understood when considered in contrast with furlough. These

terms have been legally defined and judicially explained by the

Courts from time to time.

9) There is a subtle distinction between parole and furlough. A

parole can be defined as conditional release of prisoners i.e. an

early release of a prisoner, conditional on good behaviour and

regular reporting to the authorities for a set period of time. It can

also be defined as a form of conditional pardon by which the

convict is released before the expiration of his term. Thus, the

parole is granted for good behaviour on the condition that parolee

regularly reports to a supervising officer for a specified period.

Such a release of the prisoner on parole can also be temporarily

on some basic grounds. In that eventuality, it is to be treated as

mere suspension of the sentence for time being, keeping the

Page 7 of 24 quantum of sentence intact. Release on parole is designed to

afford some relief to the prisoners in certain specified exigencies.

Such paroles are normally granted in certain situations some of

which may be as follows:

(i) a member of the prisoner's family has died or is seriously ill

or the prisoner himself is seriously ill; or

(ii) the marriage of the prisoner himself, his son, daughter,

grandson, grand daughter, brother, sister, sister's son or

daughter is to be celebrated; or

(iii) the temporary release of the prisoner is necessary for

ploughing, sowing or harvesting or carrying on any other

agricultural operation of his land or his father's undivided

land actually in possession of the prisoner; or

(iv) it is desirable to do so for any other sufficient cause;

(v) parole can be granted only after a portion of sentence is

already served;

(vi) if conditions of parole are not abided by the parolee he may

be returned to serve his sentence in prison, such conditions

may be such as those of committing a new offence; and

(vii) parole may also be granted on the basis of aspects related

to health of convict himself.

Page 8 of 24

10) Many State Governments have formulated guidelines on

parole in order to bring out objectivity in the decision making and

to decide as to whether parole needs to be granted in a particular

case or not. Such a decision in those cases is taken in

accordance with the guidelines framed. Guidelines of some of

the States stipulate two kinds of paroles, namely, custody parole

and regular parole. ‘Custody parole’ is generally granted in

emergent circumstances like:

death of a family member;

marriage of a family member;

serious illness of a family member; or

any other emergent circumstances.

As far as ‘regular parole’ is concerned, it may be given in

the following cases:

(i) serious illness of a family member;

(ii) critical conditions in the family on account of accident or

death of a family member;

(iii) marriage of any member of the family of the convict;

(iv) delivery of a child by the wife of the convict if there is no

other family member to take care of the spouse at home;

(v) serious damage to life or property of the family of the

Page 9 of 24 convict including damage caused by natural calamities;

(vi) to maintain family and social ties;

(vii) to pursue the filing of a special leave petition before this

Court against a judgment delivered by the High Court

convicting or upholding the conviction, as the case may be.

11) Furlough, on the other hand, is a brief release from the

prison. It is conditional and is given in case of long term

imprisonment. The period of sentence spent on furlough by the

prisoners need not be undergone by him as is done in the case of

parole. Furlough is granted as a good conduct remission.

12) A convict, literally speaking, must remain in jail for the

period of sentence or for rest of his life in case he is a life convict.

It is in this context that his release from jail for a short period has

to be considered as an opportunity afforded to him not only to

solve his personal and family problems but also to maintain his

links with society. Convicts too must breathe fresh air for at least

some time provided they maintain good conduct consistently

during incarceration and show a tendency to reform themselves

and become good citizens. Thus, redemption and rehabilitation of

such prisoners for good of societies must receive due weightage

while they are undergoing sentence of imprisonment.

Page 10 of 24

13) This Court, through various pronouncements, has laid down

the differences between parole and furlough, few of which are as

under:

(i) Both parole and furlough are conditional release.

(ii) Parole can be granted in case of short term imprisonment

whereas in furlough it is granted in case of long term

imprisonment.

(iii) Duration of parole extends to one month whereas in the

case of furlough it extends to fourteen days maximum.

(iv) Parole is granted by Divisional Commissioner and furlough

is granted by the Deputy Inspector General of Prisons.

(v) For parole, specific reason is required, whereas furlough is

meant for breaking the monotony of imprisonment.

(vi) The term of imprisonment is not included in the computation

of the term of parole, whereas it is vice versa in furlough.

(vii) Parole can be granted number of times whereas there is

limitation in the case of furlough.

(viii) Since furlough is not granted for any particular reason, it

can be denied in the interest of the society.

{See State of Maharashtra and Another v. Suresh Pandurang

Darvakar1; and State of Haryana and Others v. Mohinder

1 (2006) 4 SCC 776

Page 11 of 24 Singh2}.

14) 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 justification in one of

the 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 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, al beit 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

2 (2000) 3 SCC 394

Page 12 of 24 society and, therefore, are in public interest.

15) The provisions of parole and furlough, thus, provide for a

humanistic approach towards those lodged in jails. Main purpose

of such provisions is to afford to them 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.

16) 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

demands that those who are habitual offenders and may have the

Page 13 of 24 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.

17) 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.

18) To sum up, in introducing penal reforms, the State that runs

Page 14 of 24 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 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.

19) Another vital aspect that needs to be discussed is as to

whether there can be any presumption that a person who is

Page 15 of 24 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 categorised 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 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

Page 16 of 24 and tranquillity etc.

20) 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.

Delhi Administration3, Maneka Gandhi v. Union of India and

Another4, and Charles Sobraj v. Superintendent Central Jai,

Tihar, New Delhi5}.

21) 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 3 (1980) 3 SCC 488 4 (1978) 1 SCC 248 5 (1978) 4 SCC 104

Page 17 of 24 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 has not made in itself, in a

particular case, such a case can be rejected on the aforesaid

ground i.e. on its merits.

22) We are not oblivious of the fact that there may be hard core

criminals who by reason of their crime and the methods of dealing

with the crime, form associations, loyalties and attitudes which

tend to persist. There may be even peer pressure when such

convicts are out to commit those crimes again. There may be

pressure of ostracised from delinquent groups which may lead

them to commit the crime again. Persistence in criminal

behaviour may also be due to personality traits, most frequently

due to pathological traits of personality, such as mental

defectiveness, emotional instability, mental conflicts, ecocentrism

and psychosis. In regard to relapse or recidivism, Frank Exner, a

noted criminologist and sociologist, points out that the chances of

repeating increase with the number of previous arrests and the

Page 18 of 24 interval between the last and the next offence becomes

shortened as the number of previous crimes progresses 6. The

purpose of the criminological study is the prognosis of the

improvable occasional offenders and that of the irredeemable

habitual offender and hardcore criminal. To differentiate the

recidivists from non-recidivists and dangerous and hard-core

criminals from occasional criminals had been enumerated by

Exner in the following flow-sheet:

2) Hereditary weakness in the family life.

3) Increasing tempo of criminality.

4) Bad conditions in the parental home.

5) Bad school progress (especially in deportment and

industriousness).

6) Failure to complete studies once begun.

7) Irregular work (work shyness).

8) Onset of criminality before 18 years of age.

9) More than four previous sentences.

10) Quick relapse of crime.

11) Interlocal criminality (mobility).

12) Psychopathic personality (diagnosis of institutional doctor).

13) Alchoholism.

6 Frank Exner, Kriminologie, pp. 115-120

Page 19 of 24 14) Release from institution before 36 years of age.

15) Bad conduct in the institution.

16) Bad social and family relations during period of release.

At the same time, as criminality is the expression of the

‘symptom’ of certain disorder in the offenders, they can be easily

reformed if they are rightly diagnosed and correct treatment is

administered to them.

23) We find that the Rules of the Central Government, in this

behalf, are of the year 1955, which are skeleton in nature. There

is an imperative and immediate need for updating these Rules

thereby including comprehensive provisions, in the light of the

discussion contained above, incorporating the aforesaid and

other principles so as to provide suitable guidelines to those who

have to consider such applications for grant of parole. We are

hopeful that this aspect shall be given due consideration at the

appropriate level by the Government of India. For this purpose, a

copy of this judgment may also be sent to the Ministry of Law &

Justice, Government of India.

24) Having discussed the parameters which are to be kept in

mind while considering the request of a convict for parole, we

Page 20 of 24 advert to the case at hand.

25) As already noted above, the appellant has been convicted

under TADA and given the life imprisonment. As per the Jail

Custody Certificate dated April 13, 2017 produced before us, the

appellant had undergone 09 years 10 months and 29 days of

incarceration till that date. It means that as of now, the appellant

has undergone the sentence of more than ten years. We have

mentioned above about the request of the appellant for release

on parole and rejection thereof. The communication dated

November 10, 2015 of the Government of India to the Home

Department of the State of Rajasthan conveys that the appellant’s

case for twenty days of parole has been rejected in view of the

adverse reports of the concerned authorities. The concerned

authorities mentioned therein are the District Magistrate and

Superintendent of Police of Dausa, Social Justice Department of

the State of Rajasthan and the Superintendent of Jail, Jaipur.

26) We have gone through the reports of the aforesaid

authorities. Reasons given in these reports are to the effect that

if the appellant is released on parole, it may lead to untoward

incidents in the society or even among unsocial elements and

may have adverse effect on the young generation as well. It is

Page 21 of 24 also mentioned that there is a possibility that the appellant may

threaten those who had deposed against him and may even

physically harm them. It is recorded that his release on parole

may adversely affect peace in the society. Further, having regard

to the nature of the crime he had committed, there may even be a

threat to his life as well because of the reason that there is a

feeling of anger and annoyance in the society against him and,

therefore, possibility of a member of public physically harming the

appellant cannot be ruled out. There is even a danger to the

appellant’s life as well.

27) Having regard to the aforesaid reports, it cannot be said that

the authorities have not taken into account relevant

considerations while rejecting the request of parole made by the

appellant. We, therefore, are of the opinion that it is not a fit case

for grant of parole to the appellant particularly at this stage.

28) The appellant is a life convict. Therefore, he is supposed to

remain in jail during his life unless remission is given to him. In

such a situation, the appellant can, after some time, renew his

request for parole when the present atmosphere prevailing

outside undergoes a change for better. Otherwise, his conduct in

the jail has been reported as satisfactory. When a request for

Page 22 of 24 parole is made after some time, which of course should not be in

immediate future, the same can be considered again in the light

of the principles laid down by this Court in this judgment.

29) For the foregoing reasons, this appeal is dismissed.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN) NEW DELHI;

SEPTEMBER 11, 2017.

Page 23 of 24

ITEM NO.1501 COURT NO.5 SECTION XV

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 10464/2017

ASFAQ Appellant(s)

VERSUS

THE STATE OF RAJASTHAN & ORS. Respondent(s)

Date : 11-09-2017 This matter was called on for pronouncement of judgment today.

For Appellant(s) Mohd. Irshad Hanif, AOR Mr. Muzahid Ahmad, Adv. Mr. Arif Ali Khan, Adv. Mr. Shahid Nadeem Ansari, Adv.

For Respondent(s)

Hon'ble Mr. Justice A.K. Sikri pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Ashok Bhushan.

Appeal is allowed in terms of signed Reportable Judgment.

Pending applications, if any, stand disposed of.

(B.PARVATHI) (MALA KUMARI SHARMA) COURT MASTER COURT MASTER

(Signed reportable judgment is placed on the file)

Page 24 of 24