A full bench of the Punjab and Haryana High Court is set to consider the entitlement of prisoners who are "detected of using cell phone or in possession of cell phone/SIM card inside the jail premises" to parole or furlough .
A bench of Justices S. Muralidhar and Avneesh Jhingan on Monday, deeming that the law in this regard should be settled by a larger bench, referred the following question for decision by a full Bench of three Judges:
"For the purposes of interpretation of the expression 'hardcore prisoner' under Section 2 (aa) (iv) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, is it necessary that the prisoner, who is detected using or in possession of a cell phone/SIM card inside the jail premises, should, in order to be disentitled to temporary release on parole or furlough, be convicted by a Court for the corresponding offence under Sections42/42 A of the Prisons Act as applicable to Haryana or even if only punished by the prison authorities under Section 46 of the Prisons Act?"
The bench noted that the controversy has arisen on account of different Benches of coordinate strength of this Court taking conflicting views on the interpretation of the definition of 'hard core prisoner' under Section 2 (aa) (iv) of the Act. Specifically, one view is that the fact that a prisoner is found to have either used or be in possession of a mobile phone/SIM card is enough to disqualify such prisoner for parole or furlough. Whereas, the other view is that unless such prisoner is convicted by a court for such offence which is punishable under Section 42/42A of the Prisons Act, 1894 as applicable to Haryana, the prisoner would not be disentitled to consideration for temporary release on parole or furlough.
As far as the judgment of the Division Benches ('DBs') are concerned, the decision in Vakil Raj v. State of Haryana (dated 28th November, 2015)takes the view that the mere detection of use or possession of a mobile phone/SIM card with the prisoner attracts Section 2 (aa) (iv) of the Act. This very DB in its decision dated 10th August, 2020 relied upon the decision in Vakil Raj and declined to grant the relief of parole noting further that the fact of the prisoner having been granted bail in the FIR registered for the offence under Section 42 of the Prisons Act would not take him out of the ambit of the definition of 'hardcore prisoner' under Section 2 (aa) (iv) of the Act.
On the second view, viz., that unless such prisoner is convicted by a court for such offence which is punishable under Section 42/42A of the Prisons Act, 1894 as applicable to Haryana, the prisoner would not be disentitled to consideration for temporary release on parole or furlough, there is the DB decision in Sunil @ Shilu v. State of Haryana (decision dated 27th September, 2016, Sonu @ Pradeep v. State of Haryana (dated 28th July, 2017) and the decision dated 7th December, 2017 in Gurdeep Singh v. State of Haryana.
The bench noted that clearly, therefore, there is conflict of decisions of Coordinate Benches.
"This Court is conscious that in view of the settled legal position, as recently explained by the Supreme Court in Dr. Shah Faesal v. Union of India 2020 (4) SCALE 462, a decision rendered by the Coordinate Benches would be binding on the subsequent Benches of equal strength and if there is a conflict, the only way in which such conflict can be resolved is to refer the issue of the correctness of the contrary views of the Coordinate Benches to a larger Bench", said the bench.
Taking notice that there are number of orders of Single Judges relying on decisions of DBs following either of the two contrary views, the bench required the matter to be placed before the Chief Justice for the constitution of a larger bench.