Read Order: Sonu Vs. State of Haryana and others 

Tulip Kanth

Chandigarh, November 24, 2021: The Punjab and Haryana High Court has observed that Section 5A(2) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, having an overriding effect over Section 5A(1), prescribes that the convicted hardcore prisoner who has not been awarded death penalty, will be entitled for temporary release only after completing 5 years imprisonment.

The Division Bench of Justice Ajay Tewari and Justice Pankaj Jain stated that the temporary release of the prisoners in the State of Haryana is governed by The Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 and rules framed thereunder, i.e. The Haryana Good Conduct Prisoners (Temporary Release) Rules, 2007.

Herein, by way of present criminal writ petition, the petitioner challenged an Order passed by Superintendent, District Prison, Karnal, District Karnal(fifth respondent) whereby an application filed by the petitioner seeking temporary release had been dismissed.

The petitioner was sentenced and convicted for life imprisonment by the order dated April 26,2018 passed by the Additional Sessions Judge, Panipat.Initially lodged in District Jail, Sonipat and remained as undertrial upto April 25,2018, the petitioner was then, admitted in District Prison, Karnal on August 11,2018.

An appeal preferred by the petitioner against the aforesaid judgment has been pending before this Court.The petitioner approached authorities through her mother for temporary release but the application was declined on the ground that the petitioner being accused in the case under Section 42A fell within the category of ‘hardcore prisoner’ and thus could be released on parole only on completion of 5 years from the day he/she becomes hardcore.

In the considered view of the Bench, the State authorities misread the bare provisions of law which resulted in declining the prayer made by the petitioner. 

While referring to Section 5A, the Bench stated that the State is within its right to prescribe conditions for temporary release of the prisoners. However, the same cannot be beyond the statute.

Noting that Section 5A(2) nowhere prescribes that the required 5 years imprisonment has to be counted from the day, the petitioner becomes a ‘hardcore prisoner’, the Court mentioned that from the custody certificate, it was clear that the petitioner had undergone 2 years, 1 month and 25 days as undertrial and 5 years, 7 months and 27 days actual custody (including custody as undertrial). 

“Section 5A(2) having an overriding effect over Section 5A(1) prescribes that the convicted hardcore prisoner who has not been awarded death penalty, will be entitled for temporary release only after completing 5 years imprisonment. It further mandates that the said 5 years imprisonment shall not include imprisonment during trial beyond 2 years”, said the Bench.

According to the Bench,out of actual undergone period of custody of the petitioner, i.e. 5 years, 7 months and 27 days, custody of the petitioner as undertrial beyond 2 years, i.e. 1 month and 25 days had to be excluded. On excluding the aforesaid period of 1 month and 25 days, the petitioner having completed more than 5 years was thus entitled to be considered for temporary release.

Therefore, the Bench set aside the order passed by the Superintendent, District Prison, Karnal, District Karnaland and directed the petitioner to be released on parole for 4 weeks.

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