2026:HHC:34433 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.10877 of 2026 Date of Decision: 13.08.2026 _______________________________________________________ Pawan Kumar …….Petitioner Versus State of Himachal Pradesh & Ors. … Respondents _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Mr. Sunil Dutt Gautam, Legal Aid Counsel. For the Respondents: Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocate Generals with Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General. ____________________________________________________ Sandeep Sharma, Judge(oral): By way of instant petition filed under Article 226 of Constitution of India, petitioner has prayed for the following main reliefs: - “a) Quash and set aside order dated 02.09.2025 (Annexure P- 2) rejecting the petitioner’s application for temporary parole; b) Direct the respondents to release the petitioner on temporary parole for a period of two weeks, or such other period as deemed fit, subject to terms and conditions imposed by this Hon’ble Court; 1Whether the reporters of the local papers may be allowed to see the judgment? 2 2026:HHC:34433 2. Precisely, the facts of the case, as emerge from the pleadings as well as other material adduced on record by the respective parties, are that petitioner herein, who stands convicted and sentenced to 10 years’ imprisonment by learned Additional Sessions Judge, Fast Track, Special Court (Rape/POCSO), Shimla, Himachal Pradesh vide judgment dated 30.05.2024 passed in Sessions Trial No.503 of 2021 in FIR No. 200 of 2021, dated 05.09.2021, under Section 376 of IPC, registered at Police Station, West Shimla, District Shimla, Himachal Pradesh, filed an application dated 25.01.2025 for grant of parole (Annexure P-1) before the competent authority, but such prayer of him came to be rejected vide order dated 02.09.2025 (Annexure P-2) passed by Additional Director General, Prisons & Correctional Services, Himachal Pradesh on the ground that the District Magistrate had not recommended the parole of the convict, based upon the objections raised by the Station House Officer, Arki, who had reported that the convict is involved in a heinous crime and there is rage against him in the locality and the presence of the convict is dangerous for maintenance of the public order. In the aforesaid background, petitioner has approached this court in the instant proceedings, praying therein to issue direction to respondent No.2 for granting him benefit of parole after setting aside the order 02.09.2025 3 2026:HHC:34433 3. Reply filed on behalf of respondent No. 1 to 3 reveals that pursuant to judgment of conviction and order of sentence recorded by competent Court of law, petitioner at present is undergoing imprisonment in Model Central Jail, Kanda, District Shimla, Himachal Pradesh and as on the date of filing of the petition at hand, he had undergone a total substantive sentence of 2 years, 2 months and 6 days as on 04.07.2026, excluding remission. Reply filed by respondents further reveals the conduct of petitioner inside the jail was found good, as is evident from the custody certificate dated 04.07.2026 (Annexure R-2/2) issued by Superintendent Jail, Model Central Jail, Kanda, HP. Careful perusal of order impugned in the instant proceedings reveals that parole, as prayed for by the petitioner, has been denied on the ground that if the petitioner is released on parole, there is every likelihood of disturbance to public peace and tranquility in the area. On the basis of said inputs, the local police have expressed the apprehension that the petitioner’s release on parole may lead to breach of peace in the locality and have objected to the grant of parole. 4. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Sunil Dutt Gautam, learned Legal Aid Counsel appearing for the petitioner, is that bare perusal of provisions contained in Himachal Pradesh Good 4 2026:HHC:34433 Conduct Prisoners (Temporary Release) Act, 1968, (hereinafter to be referred to as “Act”) nowhere suggests that prayer, if any, made on behalf of petitioner for parole can be rejected on the objection raised by the people of the area, rather, prayer, if any, made for parole is required to be considered strictly in terms of provisions contained in the Act. It is submitted that otherwise also, petitioner, whose conduct has been found good in jail, has already undergone sentence of 2 years, 2 months and 6 days. 5. Per contra, Mr. Rajan Kahol, learned Additional Advocate General, while referring to the reply filed by the respondents, submitted that since petitioner is accused of heinous crime, it may not be in the interest of justice to enlarge him on parole because in the event of his being enlarged on bail, he may not only flee from justice, rather may again indulge in these activities. 6. I have heard learned counsel for the parties and gone through the record of the case. 7. Though reply filed by the respondent-State nowhere suggests that petitioner's conduct during incarceration was not satisfactory, but yet prayer made on behalf of petitioner for grant of bail has been opposed on the ground that his release on parole may cause unrest in the area. Though there cannot be any quarrel with the submission made by Mr. Rajan Kahol, learned Additional Advocate 5 2026:HHC:34433 General that grant of parole is a privilege and not a matter of right of convict but certainly prayer made on behalf of convict for parole is required to be considered strictly in terms of provisions contained under the Act. Mr. Rajan Kahol, learned Additional Advocate General, referred to Section 6 of the Act which provides that notwithstanding anything contained in Sections 3 and 4, no prisoner shall be entitled to be released under this Act, if, on the report of District Magistrate, the Government or an officer authorized by it in this behalf is satisfied that such release is likely to endanger the security of the State or the maintenance of public order. 8. Careful perusal of material produced on record reveals that petitioner, who stands convicted under Sections 376(2)(n) of IPC, has already undergone 2 years, 2 months and 6 days of sentence awarded to him. Section 3 of the Act entitles a convict to seek temporary release on parole, which can be granted for one of the reasons as detailed in Section 3 of the Act, which reads as under:- “3. Temporary release of prisoners on certain grounds. (1) The Government may, in consultation with the District Magistrate and subject to such conditions and in such manner as may be prescribed, release temporarily for a period specified in sub-section (2) any prisoner if the Government is satisfied that,- (a) a member of the prisoner's family has died or is seriously ill; or 6 2026:HHC:34433 (b) the marriage of the prisoner's son or daughter is to be celebrated ; or (c) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation on his land and no friend of the prisoner or a member of the prisoner's family is prepared to help him in this behalf in his absence; or (d) it is desirable so to do for any other sufficient cause. (2). The period for which a prisoner may be released shall be determined by the Government so as not to exceed,- (a) Where the prisoner is to be released on the ground specified in clause (a) of sub-section (1), two weeks; (b) where the prisoner is to be released on the ground specified in clause (b) or clause (d) of sub-section (1), four weeks; and (c) where the prisoner is to be released on the ground specified in clause (c) of sub-section (1), six weeks. (3) The period of release under this section shall not count towards the total period of the sentence of a prisoner. (4) The Government may, by notification, authorize any officer to exercise its power under this section in respect of all or any of the grounds specified therein”. 9. By now, it is well settled that Court, while considering the prayer for parole, is not to be swayed by the nature and gravity of offence or the sentence which the convict is undergoing, rather case for grant of parole is to be considered keeping in view the object of granting parole. It is also to be kept in mind that a convict, despite being convicted, is required to make necessary arrangements for his family as well as his property, be it moveable or immoveable. 7 2026:HHC:34433 10. At this stage, it would be apt to take note of the judgment passed by Hon'ble Apex Court in Asfaq versus State of Rajasthan and other, passed in Civil Appeal No.10464 of 2017 arising out of SLP(C) No.16803 of 2017, wherein Hon'ble Apex Court, while elaborating upon the object and purpose of grant of parole, has also drawn a distinction between parole and furlough. It has been held that a parole can be defined as conditional release of prisoners i.e. an earlier release of prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time, whereas furlough can be granted in long terms imprisonment. Relevant paras No. 7,9, 12, 16 and 37 of aforesaid judgment are reproduced herein blow:- “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 8 2026:HHC:34433 appellant has to be relegated to this Court every time, even 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. 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 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. 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 9 2026:HHC:34433 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. 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 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. 37) 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 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: (viii) a member of the prisoner's family has died or is seriously ill or the prisoner himself is seriously ill; or (ix) the marriage of the prisoner himself, his son, daughter, grandson, grand daughter, brother, sister, sister's son or daughter is to be celebrated; or (x) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other 10 2026:HHC:34433 agricultural operation of his land or his father's undivided land actually in possession of the prisoner; or (xi) it is desirable to do so for any other sufficient cause; (xii) parole can be granted only after a portion of sentence is already served; (xiii) 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 (xiv) parole may also be granted on the basis of aspects related to health of convict himself.” 11. Most importantly, in afore judgment, Hon'ble Apex Court has held 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 and for this purpose, he has to come out for some time so that he is able to maintain his family and social contact. Hon'ble Apex Court, in aforesaid judgment, further held that theory of criminology underlines that the main objectives which a State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. When we recognize reformation as one of the objectives, it provides justification for letting 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 society. Another objective which this theory underlines is that even such convicts have a right to breathe fresh air, albeit for periods. Most importantly, Hon'ble Apex Court in aforesaid judgment held that there cannot be any presumption that a person, who is 11 2026:HHC:34433 convicted for serious or heinous crime is to be, ipso facto, treated as a hardened criminal, rather 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. 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. Hon'ble Apex Court in afore judgment held that release on parole is designed to afford some relief to the prisoners in certain specified exigencies, which shall also include temporary release of the prisoner for ploughing, sowing or harvesting or carrying on any other agriculture operation on his land or his father’s undivided land actually in possession of the prisoner. 12. Careful perusal of order laid challenge in the instant proceedings reveals that concerned District Magistrate has not recommended the parole release of the petitioner, based on the objection raised by the Station House Officer, Arki, District Solan, Himachal Pradesh, who has reported that people of the area have objected to his release on parole. 13. As has been observed hereinabove and held by Hon'ble Apex, while considering the prayer made on behalf of the accused for parole, Courts are not to be swayed by the nature or gravity of offence 12 2026:HHC:34433 committed by the convict, rather such prayer is required to be decided taking note of various judgments, as has been culled out in para 37 of the judgment, reproduced hereinabove. Moreover, in the case at hand, it cannot be laid down as a proposition of law that a person convicted for his having committee serious crime is not entitled to be considered for parole, rather in that situation, very purpose of taking ground report from the District Magistrate and Superintendent of Police, is to ascertain whether in the event of release on parole, there exists a reasonable likelihood of the prisoner indulging in criminal activities again. In the present case, District Magistrate as well as Superintendent of Police, while objecting the parole of the petitioner, has failed to assign any cogent reason, which may justify his apprehension that in the event of grant of his release on parole, petitioner would again indulge in such activities. No doubt, petitioner herein stands convicted and sentenced to undergo rigorous imprisonment for 10 years under Sections 376(2)(n)of IPC, but that does not mean that event of his being released on parole he would again indulge in these activities. There is every possibility that after being convicted under aforesaid provisions of law, petitioner would mend his ways. 14. Division Bench of this Court in case titled as Kesar Singh Guleria Vs. State of Himachal Pradesh, 1985 Cri. L.J. 1202, 13 2026:HHC:34433 has elaborately dealt with Section 6 of the Act. In afore case, it came to be held that there is clear distinction between the concepts of "security of the State", "public order" and "law and order". "Security of the State" would involve breaches of public tranquility leading to national upheavals, such as revolution, civil strife, war etc. "Public Order", if disturbed, must lead to public disorder. A mere disturbance of law and order leading to disorder is not the same as disturbance which subverts the public order. Apprehension of breach of peace or the possibility of the prisoner committing a crime during the parole period, without anything more, would constitute a law and order problem and not a problem touching public order. In afore judgment, Division Bench of this Court held that "public order" comprehends disorders of lesser gravity than those affecting "security of the State" and that "law and order" comprehends disorders of lesser gravity than those affecting "public order". Most importantly in afore judgment, it came to be ruled by the Division Bench of this Court that in cases involving problems of law and order, the proper course to be adopted is not to give an opinion that the request for release be rejected, but to advise that the release be ordered subject to appropriate conditions, such as, that surveillance be kept over the prisoner during the period of his temporary release and that he/she be asked to report to the 14 2026:HHC:34433 nearest Police Station at appropriate intervals. Relevant Para of afore judgment read as under: “13. Another important factor required to be borne in mind by the Releasing Authority is that the rules of procedure governing the temporary release on parole or furlough are intended to subserve and not to subrogate the substantive provisions. The various rules prescribing the procedure for temporary release must be viewed and implemented bearing in mind this salient principle. Though the forms of application (Form A-l and Form A-2) are prescribed, still no application which substantially complies with the requirement of the relevant form should be rejected, even if it does not strictly conform to the prescribed form. Besides, the District Magistrate, who is under a statutory duty to give an opinion whether the temporary release of a prisoner on parole or furlough is opposed on grounds of prisoner's presence being dangerous to the security of the State or prejudicial to the maintenance of public order, must bear in mind the clear distinction between the concepts of "security of the State", "public order" and "law and order". "Security of the State" would involve breaches of public tranquillity leading to national upheavals, such as revolution, civil strife, war etc. and cover any activity affecting the security of the State. The distinction between the concepts of "public order" and "law and order" has since been explained in Lall Chand's case (1985 Cri LJ NOC (Him Pra) 46) (supra). "Public Order", if disturbed, must lead to public disorder. A mere disturbance of law and order leading to disorder is not the same as disturbance which subverts the public order. An apprehended breach of peace or the possibility of the prisoner committing a crime during the parole period, without anything more, would constitute a law and order problem and not a problem touching public order. It would thus appear that "public order" comprehends disorders of lesser gravity than those affecting "security of the State" and that "law and order" comprehends disorders of lesser gravity than those affecting "public order". In cases involving problems of law and order, the proper course to be adopted is not to give an opinion that the request for release be rejected but to advise that the release be ordered subject to appropriate conditions, such as, that surveillance be kept over the prisoner during the period of his temporary release and that he be asked to report to the nearest police station at appropriate intervals. Indeed, in appropriate case, the power conferred by R. 4 can be recommended to be exercised if an occasion therefore arises, having regard to the conduct of the prisoner who is temporarily released.” 15 2026:HHC:34433 15. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds merit in the present petition and accordingly, the same is allowed. Impugned order dated 02.09.2025 (Annexure P-2) is quashed and set aside. The petitioner is ordered to be released on parole for 28 days subject to his furnishing personal bond in the sum of Rs.2, 00,000/- with two sureties in the like amount to the satisfaction of the Superintendent Jail, with an undertaking to maintain good conduct during the period of parole and to surrender before the Superintendent Jail after the expiry of the period of parole. The Probation Officer is also directed to maintain a close watch on the activities of the petitioner and to report any deviation from the direction issued by this Court. The Superintendent Jail is free to impose any other suitable conditions at the time of the release of the petitioner. Besides above, petitioner herein shall report once in a week at Police Station Arki, District. Solan, Himachal Pradesh. Pending application(s), if any, shall also stand disposed of. (Sandeep Sharma), Judge August 13,2026 (shankar)