HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR [CASE NUMBER] [ENTITY] s/o [ENTITY], B/c [ENTITY], R/o Balupa P.S. Khatoli, Presently residing at Near Shobhawato Ki Dhani, U.I.T. Colony, H.No. 206, P.S. Chopasni Housing Board, Jodhpur. Petitioner Versus [ENTITY] Respondent Connected With D.B. Criminal Writs No. 233/2018 Smt [ENTITY] w/o Shri [ENTITY], Aged About 50 Years, B/c [ENTITY], R/o Balupa, P.S. Khatoli, District Kota at Present Residing At House No. 206, Near Sobhawaton Ki Dhani, U.I.T. Colony, P.S. Chopasani, District Jodhpur. (Convict/prisoner [ENTITY] S/o [ENTITY] at Present Central Jail Jodhpur) Petitioner Versus 1. [ENTITY] through Secretary, Department of Home (Group-12) Secretariat, Jaipur. 2. The District General (Jails), Jaipur. 3. The [ENTITY]. 4. The [ENTITY]. Respondent For Petitioner(s) : Mr. [ENTITY] For Respondent(s) : Mr. [ENTITY], Government Advocate (2 of 8) [[CASE NUMBER]] HON'BLE MR. JUSTICE [ENTITY]
HON'BLE DR. JUSTICE [ENTITY] Order 10th August, 2018
1. These two petitions; one by the petitioner [ENTITY], a life convict, and another by his wife Smt. [ENTITY], are filed aggrieved by order dated 13.6.18 issued by the State Government, whereby the application preferred by the convict [ENTITY] seeking release on permanent parole, stands rejected, pursuant to the recommendations made by the State Level Parole Committee in its meeting held on 28.12.17.
2. The application preferred by the convict for release of permanent parole is rejected on the ground that after availing first parole for a period of 20 days from 10.9.10 to 29.9.10, he surrendered by a day's delay i.e. on 30.9.10 instead of 29.9.10. That apart while staying at Open Air Camp, on 3.1.15, he absconded and returned on 4.1.15. Again on 12.8.15, he absconded from Open Air Camp and was arrested on 19.8.15. On account of his absconding on 3.1.15 and 12.8.15 as aforesaid, the criminal cases were registered against him for offence under [SECTION] [ACT], wherein after trial he was convicted and sentenced to suffer imprisonment for a period of six months and nine months respectively.
3. It is pertinent to note that earlier an application preferred by the petitioner for release on permanent parole was rejected by the State Government vide order dated 12.1.18. Aggrieved thereby, the petitioner preferred a petition being [CASE NUMBER] before this court. The petition was disposed of by this (3 of 8) [[CASE NUMBER]] court vide order dated 27.4.18 with the directions in the following terms:
"Accordingly, the parole petition is allowed. The order impugned dated 28.12.17 passed by the State Level Parole Committee rejecting the application of the petitioner seeking permanent parole is quashed. The State Level Parole Committee is directed to consider the application preferred by the petitioner for grant of permanent parole afresh, keeping in view the law laid down by this Court in [PRECEDENT]'s case (supra) within a period of two weeks from receipt of certified copy of this order."
4. In compliance of the directions issued by this court as aforesaid, the prayer of the convict [ENTITY] was considered afresh by the State Level Parole Committee in its meeting held on 15.5.18. A perusal of the minutes of the meeting reveals that the State Level Parole Committee rejected the application preferred by the convict on the self same grounds on which the earlier application preferred was rejected. Strangely enough, ignoring the directions issued by this court, the explanation furnished by the convict for his over staying during the parole and absconding from Open Air Camp, has not been taken note of by the State Government while passing the order impugned. Obviously, keeping in view the directions issued by this court, the State Level Parole Committee as also the State Government was under an obligation to consider the explanation furnished by the convict for his over staying during parole and absconding from Open Air Camp. Thus, the order impugned passed by the State Government on the basis of the recommendation of the State Level Parole Committee while defying the directions issued by this court, is not sustainable in the eyes of law.
5. Ordinarily, we would have again remanded the matter to the State Government for consideration afresh but taking into (4 of 8) [[CASE NUMBER]] consideration the facts and circumstances of the case, we consider it appropriate to examine the entitlement of the petitioner for permanent parole on merits.
6. As per [SECTION] of [ACT] (for short "the Rules of 1958"), if during the third parole, the prisoner behaved well and his character has been exceedingly well and if his conduct has been such that he is not likely to relapse into crime, his case may be recommended to the State Government through the Inspector General of Prisons for permanent release on parole on such conditions as deemed fit by the Superintendent Jail and the District Magistrate concerned; the chief condition among them being that if the prisoner while on parole commits any offence or abets, directly or indirectly, commission of any offence, he will have to undergo the unexpired portion of the sentence in addition to any sentence imposed upon him by reason of such an offence.
7. [SECTION] of the Rules of 1958 deals with ineligibility for release on parole which reads as under:-
"14. Ineligibility for release- The following classes of prisoners will ordinarily not be eligible for release on parole.
(a) Persons whose ordinary place of residence is outside the [ENTITY] or who have been convicted by a court Martial or a Court of another State;
(b) Persons convicted under the [ACT];
(c) Prisoners who have escaped from the Jail or Police custody or attempted to escape;
(d) Persons who have been convicted for offences under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT];
unless they have undergone three fourth of the sentence including remission and the Superintendent of Jail recommends the case in consultation with the District Magistrate with special reasons therefor. In granting parole (5 of 8) [[CASE NUMBER]] to prisoners sentenced u/[SECTION] [ACT], the circumstances of the case under which the murder was committed, such as murder committed for possession of land or over honour of women or as a result of family feuds shall be kept in view and favourably considered for parole."
8. In the matter of [PRECEDENT] vs. [ENTITY], 2002(1) Cr.L.R. (Raj.) [SECTION], this court while considering the nature of inhibition contained regarding the grant of parole under [SECTION] of the Rules of 1958, held:
"5. The use of negative expression, qualified with word "Ordinarily" coupled with providing conditions in which conditions for exception to ordinarily envisaged prohibition has been stated, leaves no room of doubt that [SECTION] does not create an absolute bar against considering the applications for release on parole by a convict who falls in any of the category mentioned in [SECTION]. Words of [SECTION] are expression with "ordinarily" and the conditions for release of the persons, who have been named in [CASE NUMBER] are to be considered only on conditions specified in the later part of the said rule.
6. The expression "unless" denotes that the persons falling in any of the category (a) to (d) cannot be considered for release on parole, unless they have undergone 1/4 of the sentence including remission and release on parole can take place only if Superintendent of Jail recommends the case in consultation with the District Magistrate with special reasons therefor.
7. In parenthesis [SECTION] read like this that the class of persons enumerated in [SECTION] will ordinarily be not eligible for release on parole unless they have undergone 1/4 of the sentence including remission and the Superintendent of Jail recommends the case in consultation with the District Magistrate with special reasons therefor.
8. This conveys that ordinarily the class of prisoners
(a) to (d) will not be eligible for release on parole but if they have undergone 1/4 of the sentence including remission the application for release on parole becomes liable to be considered. Such consideration which must take place by the Superintendent of Jail in consultation with District Magistrate, if on such consideration the Jail Superintendent finds that there exist any special reason to release a person falling in category (a) to (d) of [SECTION], such convict applicant can be released on parole, otherwise not.
9. Thus, there is no absolute impediment in considering the application for release of persons (6 of 8) [[CASE NUMBER]] falling in category (a) to (d), after they have undergone 1/4 of the sentence, providing for such release on parole, exist to the satisfaction of the Jail Superintendent in consultation with the District Magistrate. If the two authorities in consultation, agree that the special reasons exist for release of any person falling in the category (a) to (d) on parole after completion of their 1/4 sentence, ordinarily such parole cannot be refused."
(Emphasis supplied)
9. Thus, as per the law laid down by this court in [PRECEDENT]'s case (supra), the inhibition contained in [SECTION] of the Rules of 1958 in the matter of grant of parole to the classes of prisoners as specified under clause (a) to (d) cannot operate as absolute bar and the application preferred by the convict has to be considered by the concerned Committee/State Government after due application of mind on merits keeping in view the purpose behind the provisions incorporated for grant of parole.
10. In the matter of "Asfaq vs. [ENTITY] & Ors.", AIR 2017 SC 4986, the Hon'ble Supreme Court while dealing with the purpose behind grant of parole, observed:
"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, albeit 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 (7 of 8) [[CASE NUMBER]] ultimately aimed for the good of the society and, therefore, are in public interest.
(emphasis added)
11. In the backdrop of position of law discussed as aforesaid, adverting to the facts of the present case, it is noticed that the petitioner was granted first parole for a period of 20 days from 10.9.10 to 29.9.10, however, after availing the parole, he surrendered with a day's delay on 30.9.10. In this regard, the explanation furnished by the petitioner is that after availing the parole he returned to the jail, of course, with the delay of few hours and thus, it cannot be said that he absconded from the imprisonment. It is not the case of the respondents that during first, second and third parole, the petitioner's behaviour, character and conduct was not good. It is true that on 3.1.15, the petitioner absconded from Open Air Camp but he returned next day and the explanation furnished by him was that his son fell ill and he was taken to the hospital. Regarding the absence from Open Air Camp during the period from 12.8.15 to 19.8.15, according to the petitioner he did not return to the Open Air Camp on account of the ailment of his brother, who later committed suicide.
12. Indisputably, after availing the third parole for a period of 40 days from 26.7.17 to 3.9.17, the petitioner returned to the jail well within time and his conduct during the parole period remained good. Further, even thereafter, the petitioner was released on emergent parole for the period from 20.12.17 to 26.12.17 and he had returned to the Open Air Camp well within time.
(8 of 8) [[CASE NUMBER]]
13. Thus, on the facts and in the circumstances of the case, when the petitioner has already undergone the sentence for a period more than 19 years, it would not be appropriate to deny him the benefit of permanent parole under [SECTION] of the Rules of 1958.
14. In the result, the petitions are allowed. The order impugned dated 13.6.18 issued by the State Government, rejecting the prayer of the petitioner for release on permanent parole is set aside. The petitioner shall be released on parole on the reasonable terms and conditions to be determined by the Superintendent of Jail and the District Magistrate concerned in conformity with [SECTION] of the Rules of 1958.
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