M.L. Singhal, J.@mdashInderpal Singh son of Kulwant Singh was Naik in 29 Infantry Division C/o A.P.O. He was convicted u/s 69 of the Army Act, 1950 (equivalent to Section 302, IPC) at a general Court martial at Pathankot on 12-1-1995 and sentenced to undergo imprisonment for life and dismissal from service. He moved an application on 19-11-1996 to respondent No. 3 i.e. Superintendent Central Jail, Amritsar for grant of agricultural parole to him for a period of 6 weeks. Grant of parole was recommended by him and the parole case was sent to respondent No. 2 i.e. Commanding Officer, 29 Infantry Division C/o 56 A.P.O. and respondent No. 4 i.e. District Magistrate, Amritsar on 21-11-1996. Parole case was recommended by respondent No. 4 and was sent to respondent No. 2 on 6-12-1996. His prayer for the grant of parole was refused by respondent No. 2 on 31 -12-1996. He had earlier enjoyed parole from 28-5-1996 to 12 6-1996. He reported back at Central Jail, Amritsar on 12-6-1996. During the period, he was on parole, he committed no offence. His behaviour was orderly and there was no danger from him to any one. Gram Panchayat also verified that he deserved to be granted parole as there was no one in the family who could earn livelihood and support his only daughter aged 8 years. Through this Cr. Misc. Petition No. 1879-M of 1997 filed u/s 482, Cr.P.C. read with Article 226/227 of the Constitution of India, he has prayed for the grant of agricultural parole for a period of 6 week u/s 3 Clause 1 Sub-clause (c) of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962.
2. Respondents Nos. 1 and 3 put in reply to the allegations made by the petitioner in this petition urging that the District Magistrate, Amritsar had recommended the release of the petitioner on 4 weeks parole. Army authority, however, rejected the case of the petitioner for 6 weeks parole as intimated by Infantry Division C/o 56 APO letter No. 3013/109/A3 dated 31-12-1996 Annexure R-1. It was admitted that the petitioner had surrendered in jail in time after he had enjoyed 2 weeks parole from 28-5-1996 to 12-6-1996.
3. Respondent No. 2 contested this petition urging that as per Section 179(d) of the Army Act, 1950 read with Army Rule 204 any convicted person by Court-martial of any offence, the Central Govt. the Chief of Army Staff, the Officer Commanding the Army Corps, Division or independent Brigade in which such person was serving at the time of conviction or undergoing any civil prison may either, with or without condition which the person sentenced accepts release the person on parole. Section 123 of the Army Act says that the provisions of the Army Act apply to the convicted persons during the terms of sentence. Provisions of Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 (to be referred as State Act) will have no application in view of the explicit provisions of the Army Act, 1950 (hereinafter to be referred as the Central Act) making the convicted person subject to the Central Act during the term of sentence. Applications received for the grant of parole by the convicts of general Court-martial are considered in the light of the provisions of the Central Act applicable to service convicts. Petitioner was granted 2 weeks parole by an order of respondent No. 2 dated 10-3-1996 which he enjoyed. Application for the grant of agricultural parole made by his wife was considered and rejected vide headquarter letter dated 29-1 -1997 and she was advised to forward fresh application for the grant of parole to the petitioner through proper channel with grounds sufficient enough to merit consideration. Prayer of the petitioner''s, wife for the grant of parole was considered. Ground put forth for the grant of parole was considered to be not sufficient enough to merit the grant of parole. Applications for the grant of parole to a convict subject to the Central Act do not lie to the civilian authorities. They lie only to the army authorities in view of the provisions of Section 123 of the Army Act, 1950 read with Section 179 of the Army Act, 1950.
4. In this petition two questions arise for the determination of this Court namely; (1) whether the question of grant of parole to the petitioner is governed by the Army Act, 1950 or the Punjab Good Conduct Prisoners (Temporary Release) Act 1962; (ii) and whether the respondent No. 2 was justified in declining the recommendation made by respondents Nos. 3 and 4, recommending grant of parole to the petitioner?
5. In ex-Major R.S. Budhwar v. State of Haryana Crl. Misc. No. 3758-M of 1996 decided on 9-6-1992, a learned single Judge of this Court held that a person confined in prison on conviction by Court-martial falls within the ambit of the definition of the prisoner as contained in Section 2(d) of the State Act. Definition of ''prisoner'' in the Haryana Good Conduct Prisoners (Temporary Release) Act is in the same terms as in the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962. Learned single Judge held that the case of ex-Major R.S. Budhwar for the grant of parole should be considered exclusively by the State Government. Ex-Major R.S. Budhwar was a Major in the Army. He was awarded life imprisonment by the general Court-martial and he was confined in Central Jail, Ambala. Prayer for the grant of parole under the provisions of the Haryana Act was made which was forwarded to the military authorities and the prayer for the grant of parole was rejected by the Chief of the Army Staff. Learned single Judge considered the definition of the term ''prisoner'' as given in Section 2(d) of the Haryana Act and observed as follows :-
A perusal of the above provision shows that even a person confined in prison on conviction by a Court-martial falls within the definition of a prisoner and the authority to release him temporarily vests exclusively in the State Government. The case is not to be examined by the Chief of the Army Staff.
6. Shri D. D. Sharma learned counsel for respondent No. 2 submitted that a person sentenced by Court-martial would remain subject to the provisions of the Army Act even though he may have ceased to be subject to the Army Act and that the question of pardon and remission including the question of grant of parole in respect of such a convict is governed by Section 179 of the Central Act read with instructions issued thereunder from time to time either by the State Government or the competent authority thereunder. He further submitted that the provisions of the Army Act would override the provisions of the State Act in respect of matters which fall within the Concurrent List in the seventh Schedule to the Constitution of India if the Parliament and the State Legislature have enacted laws on the same subject. In support of this submission, he drew my attention to the provisions of Article 246 and 254 of the Constitution of India. Article 246 reads as follows :-
(1) Notwithstanding anything in Clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the ''Union List'').
(2) Notwithstanding anything in Clause (3), Parliament, and subject to Clause (1) the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List HI in the Seventh Schedule (in this Constitution referred to as the ''concurrent List'').
(3) Subject to Clauses. (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the ''State List'').
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a state notwithstanding that such matter is a matter enumerated in the State List.
Article 254 reads as follows :--
(1) If any provision of a law made by the Legislature of a State is repugnant to any provisions of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the concurrent List, then, subject to the provisions of Clause (2) the law made by Parliament, whether passed before or after the law made by the Legislature of such state, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State :
Provided that nothing in this clause shall prevent parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
He drew my attention to
7. It is true that the submission made by the learned counsel for the petitioner does derive support from the judgment of the learned single Judge recorded in Ex-Major R. S. Budhwar''s case (supra), it is however, equally true that the provisions of Sections 123 and 179 of the Army act and the provisions of Article 246 and 254 of the Constitution of India were not brought to the notice of learned single Judge. Section 123 of the Central Act, lays down as under :--
123.
(3) When a person subject to this Act is sentenced by a Court-martial to transportation or imprisonment, this Act shall apply to him during the term of his sentence, though he is cashiered or dismissed from the regular Army, or has otherwise ceased to be subject to this Act and he may be kept, removed, imprisoned and punished as if he continued to be subject to this Act.
Section 179 of the Central Act relates to pardon and remission. The relevant portion of this provision provides as under :--
179. Pardon and remission :-- When any person subject to this Act has been convicted by a court-martial of any offence, the Central Government or the (Chief of the Army Staff), or in the case of a sentence, which he could have confirmed or which did not require confirmation, the officer commanding the Army, army corps, division or independent brigade in which such person at the time of conviction was serving or the prescribed officer may :-
(a)to(c) xxxxxxxxx xxxxxxxxx xxxxxxxxx
(d) either with or without conditions which the person sentenced accepts, release the person on parole.
8. Vide letter Annexure Rl, dated 21-8-1986 the Government of India, Ministry of Home Affairs, New Delhi brought to the notice of the States and the Union Territories the procedure to be followed in cases of proposed release on commutation of sentence and grant of parole to military prisoners mentioned by courts-martial. Para 2(B) of this letters says that the State Government should refer the cases of release of military prisoners on parole only to the competent authority prescribed in Section 179 of the Central Act as mentioned in the separate sheet attached to the committal warrant for this purpose. Para 3 of this letter says that the applications for parole in respect of military prisoners lodged in civil jails may be forwarded by the Superintendents of Jails direct to the competent military authority as mentioned in the separate sheet attached to the Home Secretary concerned, District Magistrate and the Inspector-General Prisons of the States concerned and the orders of competent military authority regarding the grant or otherwise or parole will be communicated to the Superintendent of Jails under intimation to the Home Secretary, Inspector General of Prisons and District Magistrate concerned.
9. Army Act, 1950 governs the grant of parole to military prisoners which is a complete code in itself on the subject. Definition of ''prisoner'' as contained in Section 2(d) of the State Act also covers within its ambit a military prisoner. Article 246 and 254 of the Constitution of India provide answer to this question i.e. whether the law enacted by the State Legislature should prevail or the law enacted by the Parliament should prevail covering the same subject. In Maru, Bhiwana Ram''s case (supra), their Lordships of the Hon''ble Supreme Court observed as follows :-
Article 246(2) gives powers to Parliament to make laws with respect to any of the matters enumerated in List III. Entries 1 and 2 in List III (especially Entry 2) are abundantly comprehensive to cover legislation such as is contained in Section 433-A, which merely enacts a rider, as it were, to Sections 432 and 433(a) we cannot read into it a legislation on the topic of ''Prisons and Prisoners''. On the other hand, it sets a lower limit to the execution of the punishment provided by the Penal Code and is appropriately placed in the Chapter on Execution and sentences in the procedure Code. Once we accept the irrefutable position that the execution, remission and commutation of sentences primarily fall, as in the earlier Code (Criminal Procedure Code, 1898), within the present Procedure Code (Chapter XXXII), we may rightly assign Section 433-A to Entry 2 in List III as a cognate provision integral to remission and commutation, as it sets limits to the power conferred by the preceding two sections. This limited prescription as a proviso to the earlier prescription relates to execution of sentence, not conditions in prison or regulation of Prisoner''s life. The distinction between prisons and prisoners on the one hand and sentences and their execution, remission and communication on the other, is fine but real. To bastardize Section 433-A as outside the legitimacy of Entry 2 in List III is to breach all canons of constitutional interpretation of legislative Lists, Parliament has competency.
10. The Central Act contains express provisions regarding the grant of parole to military prisoners u/s 179 thereof. State Act also embraces within its ambit a military prisoner by an inclusive definition of the term ''prisoner'' as contained in Section 2(d) thereof. For the grant of parole under the Central Act, the authority is different from the one prescribed under the State Act. It is thus clear that the question of release of military prisoner on parole is governed by the Central Act namely the Army Act, 1950, the rules framed and the instructions issued thereunder and not by the State Act i.e. the Punjab'' Good Conduct Prisioners (Temporary Release) Act, 1962.
11. This very view was taken by the learned single Judge of this Court in Kashmir Singh v. State of Haryana 1996(2) ALJ 73 : 1996 Cri LJ 3546 (Cri. Misc. No. 11825-M of 1995 decided on 24-2-1996).
12. As to whether the military authorities were justified in refusing parole to the petitioner is the second question that falls for determination of this Court. Order Annexure R1 was passed by the military authorities refusing him parole. In para 2 of this order, the military authorities have observed that as per existing rules, grant of parole in excess of 2 weeks can only be granted on exceptionally compassionate grounds whereas no such grounds have been mentioned in application forwarded to them i.e. Headquarters 29 Infantry Division C/o 56 APO. In my opinion, the order Annexure R1 does not take note of the fact that prisoner is also a human being. Like every other being, he has the urge to see the member of his family after a long separation. Release on parole is a step aimed at reformation and reclamation and is expected to provide opportunity to the prisoner to transform himself into a useful citizen since the rationale of Court sentence is social in defence coupled with personal correction, it is the continuing responsibility of the Court to ensure that the penological purpose of sentence is not defeated by the prison administration and the prisoners system responds to the purpose of sentence. Thus parole is part of penal and prison reform with a view to humanise the prison system. The purpose and object of granting, parole are to enable the inmate to maintain continuity with his family life and deal with family matters, to save the inmate from the evil effects of continuous prison life, to enable the inmate to maintain constructive hope and active interests in life. In
For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counter-productive, is unarguably. unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner''s shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority.
13. Convicts are not by mere reason of their conviction denuded of all the fundamental rights which they otherwise possess. The Apex Court views sentencing as a process of de-shaping of person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a measure of social defence. This compassionate outlook is reflected in the decisions of the Hon''ble Supreme Court namely
14. Viewed in the light of what the Hon''ble Supreme Court has observed in the aforesaid decisions, the military authorities could not brush arise the prayer of the petitioner for the grant of parole by merely observing that he had already availed 2 weeks parole earlier from 28-5-1996 to 12-6-1996 and he could not be granted parole for he second time unless exceptionally compassionate grounds are disclosed justifying the grant of parole. It would bear repetition that periodical grant of parole to a prisoner is only to enable him to be with his family after some separation. Periodical grant of parole also helps the inmate save himself from the evil effects of (continuous prison life. Grant of parole for agricultural purpose can also fall within the ambit of Clause (c) of Para I of the Appendix ''D'' of the letter dated 13-11-1986 Annexure R 2 which reads as follows :-
(C) Any other emergent/unforeseen contingency like marriage of dependent children in the family, where in the opinion of the competent authority the presence of the inmate is considered essential.
15. If there is no male member for carrying on agricultural operations for earning livelihood, in my opinion, the emergency referred to in this clause would be attracted. Petitioner''s case was recommended by the jail authorities.
16. Reasons given by the military authorities for rejecting the petitioner''s prayer for parole are devoid of human benediction and outside the area of permissible consideration. Military authorities are accordingly directed to reconsider the petitioner''s prayer for parole in the light of what has been said above. Petitioner may supplement his prayer by any other ground if he so wishes Military authorities will also take that ground into account while disposing of his prayer for parole. Military authorities will dispose of his prayer for the grant of parole within 2 months from the date of receipt/production of copy of this order together with the additional ground if furnished in support of his prayer for the grant of parole.
17. This Crl. Misc. petition is thus allowed.
