IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR 1. D. B. Civil Writ Petition No. 6584/07 Birdha v State of Rajasthan 2. D. B. Civil Writ Petition No. 5455/2007 Pyari Devi v State of Rajasthan Date of Judgment: JANUARY 31, 2008. Hon’ble Mr. Justice Shiv Kumar Sharma Hon’ble Mr. Justice R. S. Chauhan Reportable Mr. Vinay Pal Yadav for the Petitioner Mr. Ashwani K. Sharma, the Public Prosecutor for the State (Per R. S. Chauhan) J: William Shakespeare, in his play The Merchant of Venice wrote, “Justice should be tampered with mercy.” The legal arena cannot be like a sterilized operating theater. Instead, it must be like a warm hearth in a cold winter exuding the fragrance of compassion and understanding. It is with this understanding that one of the principles of criminal law is to condemn the crime, but not the criminal. Theology may doubt the goodness of man; criminal law believes in his goodness. Thus, the goal of criminal justice delivery system is not just to punish an offender, to throw him out of the Garden of Eden, but more importantly to reform him to the point where he can be brought back into the society. While dealing with the present case, we cannot lose sight of the underlying philosophy of criminal justice delivery system. These two different writ petitions relate to the premature release of Birdha from the Central Jail Jaipur. While the first petition is a letter petition sent by Birdha from the Jail, the second petition has been filed by his wife, Smt. Pyari Devi. Thus, these two petitions are being decided by this common judgment. Admittedly, the Petitioner was convicted for offence of rape and murder of a minor girl—a most heinous crime in any civilized society. For his loathsome crime, he was convicted and sentenced for life. He has already spent twenty-seven years of his life behind the stonewalls of the Central Jail Jaipur. During this long period of incarceration, he has been let out on parole on five occasions. To his credit, during these furloughs he has not disturbed the even tempo of life outside the jail. He has religiously followed the conditions of the parole. Quietly he has gone to his village; peacefully, he has returned to the jail. His conduct, according to the Superintendent, Central Jail, Jaipur, has been satisfactory. In fact, the Superintendent has recommended his release on permanent parole and even for his premature release. His recommendation has been further supported by the report of the social welfare officer. Yet, the Advisory Committee in its meeting on 20.10.03 has declined to release the petitioner on permanent parole and has also declined to release him prematurely. Hence, the petitioner has sent this letter petition to the court pleading for either being released on permanent parole, or for being released prematurely. Mr. Vinay Pal Singh, the learned counsel for the petitioner, has stressed on the facts narrated above. He has raised two contentions before this court: firstly, since the petitioner has been released on five paroles, he is entitled to be released on permanent parole under the Rajasthan Prisoners (Release on Parole) Rules, 1958 (‘the Parole Rules’, for short). Secondly, since the petitioner has completed more than fourteen years of incarceration, he is entitled to be released prematurely under the Rajasthan Prisoners (Shortening of Sentence) Rules, 1958 (‘the Shortening Rules’, for short). Even earlier, the Advisory Committee rejected the petitioner’s case for parole on the ground of the heinous nature of his crime and on the ground that he had participated in the general strike observed in the Jail in 1991. His wife had filed a writ petition before this court. Vide judgment dated 19.08.03 this court had directed the Advisory Committee to consider his case for parole. According to the impugned order, the same factual matrix has also impressed the present Advisory Committee. However, according to the learned counsel the petitioner has already served a sentence of twenty seven years in jail. Thus, he has paid for his crime. As far as his conduct in the jail is concerned, his involvement in the general strike is a stale case, which cannot be considered after a lapse of almost fifteen years. During this period of fifteen years, the petitioner has reformed himself to the point of winning favorable reports from the Superintendent and the Social Welfare officer. Thus, the impugned order is based on irrelevant consideration. It clearly shows non-application of mind. It is a colorable exercise of power. On the other hand, Mr. Ashwani Sharma, the learned Public Prosecutor for the State, has harped on the twin facts of the circumstances of the case and the fact of the petitioner having participated in the general strike in 1991. He has also argued that the petitioner was sentenced to seven years for offence under S. 376 IPC and for Life for offence under Section 302 IPC. The sentences were directed to run consecutively. Although the petitioner has completed seven years for offence under Section 376 IPC, he has yet to complete fourteen years without remission for offence under Section 302 IPC as required for by Section 433 A of the Criminal Procedure Code. He has, thus, supported the impugned order. We have heard the rival submissions of the counsels for the parties and have examined the impugned order. Abandoning the retributive theory of punishment, the philosophy behind punishment has moved to the reformative theory. Punishment is no longer seen as revenge inflicted by the society upon the offender for his offence. It is now seen as a means to transform the law-breaking person into a law-abiding citizen. Thus, the purpose of incarceration is not to lock up the prisoners, but to reform them. In order to give them incentives for reforming themselves, in 1958, the Parole Rules and the Shortening Rules were created. Thus, both of these Rules are beneficial piece of legislation. Necessarily, they should be liberally interpreted and liberally applied. A pedantic view of the Rules would defeat the very purpose of these laws Rule 9 of the Parole Rules reads as under :- “9. Parole period.- A prisoner, who has completed with remission, if any, one-fourth of his sentence and subject to good conduct in the Jail, may be released on 1st parole for 20 days including days of journey to home and back, and for 30 days on 2nd parole provided his behaviour has been good during the 1st parole and for 40 days on third parole provided his behaviour has been good during the second parole. If during the third parole also the prisoner has behaved well and his character has been exceedingly well and if the prisoner's conduct has been such that he is not likely to relapse into crime, his case ma;y be recommended to the Government through the State Committee 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 has to undergo the unexpired portion of the sentence in addition to any sentence imposed upon him by reason of such an offence. In case the permanent release on parole is rejected, the prisoner will be eligible for release on parole for 40 days every year subject to the same conditions for the remaining period of his sentence: Provided that cases of prisoners who have been sentenced to imprisonment for life, for an offence for which death penalty is one of the punishments provided by law or who have been sentenced to death but this sentence has been commuted under Section 433 of Code of Criminal Procedure into one of life imprisonment shall not be placed before the State Committee for permanent release on parole unless he has served 14 years of imprisonment excluding remission, but including the period of detention passed during enquiry, investigation or trial. Such prisoners may be released on parole for 40 days every year for the remaining period of their sentence subject to the conditions stated above. According to the reply filed by the State as on 14.8.07 the petitioner has completed 14 years and 5 months and 23 days of his life imprisonment. Therefore, he already fulfills the condition of having completed 14 years of actual sentence. Moreover, he has already been released on parole for five times, but there has been no complaint with regard to his conduct. Thus, the petitioner is certainly entitled to be released on permanent parole. Rule 8 of the Shortening of Sentence Rules is as under :- “8. Prisoners eligibility for consideration by the Advisory Board.- The Advisory Board shall be entitled to consider the cases of the following types of prisoners:- (i) A prisoner other than habitual criminal undergoing a substantive sentence of three years or over who has completed two years of imprisonment or half of his sentence whichever is greater, including remission; (ii) A prisoner being a habitual criminal who has served 2 ½ years of his substantive sentence, including the period of remission, or has served two thirds of sentence including the period of remission, whichever is greater. (iii)(a) A prisoner sentenced to transportation for life or to more than 14 years of imprisonment, except one specified in sub-rule (b) below, who has served 2/3rd of his sentence or 13 years 8 months of imprisonment, including remission, whichever is less, a sentence for transportation for life will be construed to be one of imprisonment for 20 years for this purpose. The period of imprisonment shall include sentence in default of payment of fine, if the same has not been paid. The remission actually earned by a prisoner shall be taken into account by the Advisory Board and not a special remission granted in celebration of public function for example, Independence Day, Republic Day etc. (iii)(b) A prisoner who has been sentenced to imprisonment for life after 18-12-1978 for an offence for which death penalty is one of the punishments provided by law or who has been sentenced to death but this sentence has been commuted under S.443 of Cr.P.C. into one of life imprisonment after 18-12-1978, if he has served 14 years of imprisonment excluding remission but including the period of detention passed during enquiry, investigation or trial. (iv) Prisoners awarded long term sentences by Court-Martial and have served two-thirds of their sentences including the period of remissions. (v) Prisoners suffering from infectious diseases, such as Leprosy, tuberculosis: provided their disease is likely to be dangerous to other prisoners and conditions prescribed in rule 7 are fulfilled: (vi) Prisoners who have attained the age over 65 years in case of male prisoners and over 55 years in case of women prisoners, in whose case no public interest is likely to be served by keeping them in prison, provided they are serving sentences for their first and only conviction and are not covered under clauses iii(b) above.“ According to the said Rule a prisoner is entitled to have his case considered for premature release provided he has completed 14 years of imprisonment excluding remission. Since the petitioner has completed the said period, his case should have been placed before the Advisory Committee under the Shortening of Sentence Rules. The State has tried to explain its omission in not placing the petitioner's case before the Advisory Committee ostensibly on the ground that the reports from the concerned authorities have not been received. However, the petitioner cannot be made to suffer for no fault of his. Since the jail authorities are well aware about the convicted prisoners who are about to complete 14 years, they should be vigilant enough to seek the necessary reports from the concerned authorities prior to the convicted prisoner completing his 14 years. The jail authorities cannot sit quietly over the case of a convicted prisoner and then blame the concerned authorities for not sending the required reports. Being a welfare State, it is the duty of the respondents to ensure that the case of the petitioner is placed before the Advisory Committee immediately after the petitioner has completed 14 years. Considering the laxity on the part of the respondents, considering the fact that the petitioner has been languishing in the jail for the last 14 years, considering the fact that on five occasions he has been out on parole and has not disturbed the piece and tranquility of the society, we direct the Superintendent, Central Jail, Ajmer to immediately release Birda S/o Shri Kalu R/o Sandariya, Police Station Beawer, District Ajmer presently lodged in Central Jail, Ajmer. The writ petition is accordingly allowed. ( R,S, CHAUHAN ) J. ( SHIV KUMAR SHARMA ) J. MRG.