Parole is granted to the petitioner on account of his father being positive for covid-19, but an extension for the same is rejected: Hight court of Rajasthan

 on 03 07 2021 at 11:21:06 AM HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPURD.B. Criminal Writ PetitionNo. 1020 2021Nilam Kumar S o Shri Ramjilal Aged About 38 Years R o NearDeputyji Temple Jhalawar(the petitioner is serving hissentence in Central Jail Udaipur at present petitioner is onEmergent Parole from 26.05.2021 to 09.06.2021) through hisWife Smt. Kalawati Meena Aged about 33 Years R o NearDeputyji Temple Police Station Kotwali JhalawarPetitionerVersus1. State of Rajasthan through the Secretary Home Secretariat Jaipur.2. The High Powered Committee constituted by the State ofRajasthan for the Purpose of Special Parole in the Wake ofCovid 19 Pandemic Through its Member PrincipalSecretary Department of Home Government ofRajasthan Government Secretariat JaipurGovernment of Rajasthan Government Secretariat Jaipur(Raj.).5. The Inspector General of Prisons Rajasthan having itsOffice at Directorate Prisons Ghatgate Jaipur: Anshuman Saxena through VCFor Respondent(s): Shri Mangal Singh Saini P.P.HON BLE MR. JUSTICE SANJEEV PRAKASH SHARMAHON BLE MR. JUSTICE MAHENDAR KUMAR GOYAL[CRLW 1020 2021]This D.B. Criminal Writ Petitionhas been filed withthe following prayers:“i) to direct the respondents to make the necessaryamendment in Rule 10B(2) of the Rajasthan PrisonersRelease on ParoleRules 2020 as also Rule2(ii) of the Rajasthan Prisoners Release on Parole(Amendment) Rules 2021 by including category ofprisoner like petitioner who are on emergent paroleextending the period of parole till 30th June 2021 andthereby amend the Rajasthan Prisoners Release on ParoleRules 1958 ii) to direct the respondents to release and allow thepetitioner Nilam Kumar S o Shri Ramjilal on special paroletill 30th June 2021 upon like conditions as enumerated inthe order dated 17.5.2021while allowingother prisoners on special parole till 30th June 2021 iii) to call for the record pertains to the present matter iv) to pass any other order which this Hon’ble Court maydeem fit and proper in the present facts andcircumstances in favour of the petitioner.” The factual matrix of the case is that the petitioner wasconvicted and sentenced by the Court of Special Judge SC ST(PA) Cases Jhalawar in Sessions Case No.38 2018 videjudgement dated 13.07.2020 for the offences under Sections 302 302 34 307 307 34 of IPC Section 3(2)(v) of SC STAct 1989 and Section 3 25 of Arms Act and sentenced to undergo lifeimprisonment. The petitioner is undergoing sentence in CentralJail Udaipur and has served more than six years of imprisonmentwithout remission. Vide order dated 25.5.2021 the District Magistrate Jhalawargranted the petitioner emergent parole for a period of 15 days[CRLW 1020 2021]under Rule 10A of the Rajasthan PrisonersNot withstanding anything contained inrules 3 4 5 9 10 and 10A in the wake of emergentsituations of ongoing COVID 19 PANDEMIC whichwarrants immediate easing of population of prisoners inthe prison the State Government in order to secure theinterest of prisoners on the recommendation of thePrisoners Parole Advisory Committee may grantSpecial Parole for a period not exceeding four weeks to a prisoner who has already availed first second orthird Parole peacefully and his behavior has been goodduring the period of such parole. The Special Paroleunder this rule shall be granted on such terms andconditions as may be considered necessary by theState Government:Provided that special parole under this rule shall not begranted to the prisoner who has been convicted for theoffence related to Acid Attack Rape Dacoity Murder section 4 or 6 of the Protection of Children from SexualOffence Act 2012 the Narcotic Drugs and PsychotropicSubstances Act 1985 Economic Offences thePrevention of Corruption Act 1988 the Prevention ofMoney Laundering Act 2002 Anti National Activities the Unlawful ActivitiesAct 1967 or any[CRLW 1020 2021]other offence of similar nature or the cases investigatedby any central investigating Agencies.The prisoners who are already availing first secondor third parole or the parole of 40 days granted everyyear as the case may be on the date ofcommencement of these rules i.e. the RajasthanPrisoners Release on ParoleRules 2020 the period of such parole shall be deemed to beextended upto 03rd May 2020.”The State Government vide Notification dated 17.5.2021amended Rule 10B of the Rules of 1958 which reads as under:“2. Amendment of rule 10 B. In rule 10 B of theRajasthan Prisoners Release on Parole Rules 1958 in sub rulefor the existing expression “notexceeding four weeks to a prisoner who” theexpression “not exceeding 90 days to a prisoner who”shall be substituted and(ii)in sub rulefor the existing expression“Rajasthan Prisoners Release on Parole[CRLW 1020 2021]issued to the respondents to amend the Rules suitably so as toextend a similar treatment to the prisoners on emergent parole.He prayed that the emergent parole of the petitioner be extendedtill 30.06.2021 in terms of the Notification dated 17.05.2021. Learned State counsel for the respondents opposed theprayer. Heard the learned counsels for the parties and perused therecord. To appreciate the submissions raised by the learned counselsfor the respective parties and to adjudicate upon whether Rule10B is a discriminatory piece of legislation we propose to examinethe statutory scheme for grant of parole emergent parole underthe Rules of 1958 which has been framed by the StateGovernment in exercise of its powers conferred by sub section 6of Section 401 of the Code of Criminal Procedure 1989of the Code of Criminal Procedure 1973). Rule 9 of the Rules of 1958 provides as under: “9. Parole period A prisoner who has completed withremission if any of his sentence and subjectto good conduct in the Jail may be released on 1st parolefor 20 days including days of journey to home and back and for 30 days on 2nd parole provided his behaviour hasbeen good during the 1st parole and for 40 days on thirdparole provided his behaviour has been good during thesecond parole. If during the third parole also the prisonerhas behaved well and his character has been exceedinglywell and if the prisoner’s conduct has been such that he isnot likely to relapse into crime his case may berecommended to the Government through thefor permanent release on parole on suchconditions as deemed fit by the Superintendent Jail and[CRLW 1020 2021]the District Magistrate concerned: the chief conditionamong them being that if the prisoner while on parolecommits any offence or abets directly or indirectly commission of any offence he has to undergo theunexpired portion of the sentence in addition to anysentence imposed upon him by reason of such an offence.In case the permanent release on parole is rejected theprisoner will be eligible for release on parole for 40 daysevery year subject to the same conditions for theremaining period of his sentence:Provided that cases of prisoners who have been sentencedto imprisonment for life for an offence for which deathpenalty is one of the punishments provided by law or whohave been sentenced to death but this sentence has beencommuted under Section 433 of Code of CriminalProcedure into one of life imprisonment shall not beplaced before the State Committee for permanent releaseon parole unless he has served 14 years of imprisonmentexcluding remission but including the period of detentionpassed during enquiry investigation or trial. Suchprisoners may be released on parole for 40 days everyyear for the remaining period of their sentence subject tothe conditions stated above.”Thus grant of parole under Rule 9 is subject to certainconditions as enumerated therein such as:completion withremission if any one fourth of the sentence good conduct injail for subsequent parole good behaviour during the earlierparole(s). Rule 10 of the Rules of 1958 provides that no second andsubsequent release on parole shall be made unless eleven monthshave elapsed from the date of expiry of period of release on paroleimmediately preceding. Rule 12 lays down that the period forwhich a prisoner stays on parole under Rule 9 without violating[CRLW 1020 2021]the conditions laid down for the purpose shall be treated asimprisonment served by him. All other kinds of parole shall betreated as sentence suspended. Rule 10A of the Rules of 1958 provides for provisions forgrant of emergent parole which reads as under:“[10A.Notwithstanding the provisions of rule9 and 10 in emergent cases involving humanitarianconsideration viz.critical condition on account ofillness of any close relations i.e. father mother wife husband children brother or unmarried sister seriousdamage to life or property from any natural calamity.marriage of a prisoner his her son or daughter ofhis her brothers sisters in case his her parents are notalive.] A Prisoner[may] be released on parole for aperiod not exceeding 7 days by the Superintendent ofthe Jail and for a period not exceeding 15 days by theInspector General of Prisonsonsuch terms and conditions as they may considernecessary to impose for the security of the prisonerincluding a guarantee for his return to the jail acceptance or execution whereof would be a conditionprecedent to the release of such a prisoner on parole.A copy of the order for release of prisoners on paroleshall be endorsed to the next higher authority giving fullcircumstances under which the parole has beenallowed.][In case the next higher authority does not approve thegrant of parole he may ask the authority granting theparole to revoke the same who shall act accordingly.]”A perusal of the provisions of Rule 10A reveals that grant ofemergent parole is not qualified by any of such conditions which[CRLW 1020 2021]are pre requisite for grant of parole under Rule 9 such ascompletion of one fourth of sentence including remission or goodconduct in jail or interval of eleven months in between two parolesas laid down under Rule 10. Further a prisoner on emergentparole is not entitled to benefit available to a prisoner on paroleunder Rule 9 by virtue of Rule 12. Rule 14 of the Rules of 1958 lays down as under:“14. Ineligibility for release. The following classesof prisoners will ordinarily not be eligible for release onparole:persons whose ordinary place of residence isoutside the State of Rajasthan or who have beenconvicted by a Court Martial or a Court of anotherState Persons convicted under the Explosive SubstancesAct 1908 Prisoners who have escaped from the Jail or Policecustody or attempted to escapePersons who have been convicted for offencesunder sections 121 to 140 216A 302 303 311 328 332 364 386 387 388 389 392 393 394 395 396 397 398 399 400 401 402 413 455 458 459and 460 of the Indian Penal Code 1860 unless they have undergoneof thesentence including remission and the Superintendent ofJail recommends the case in consultation with theDistrict Magistrate with special reasons therefor. Ingranting parole to prisoners sentenced u s. 302 I.P.C. the circumstances of the case under which the murderwas committed such as murder committed forpossession of land or over honour of women or as aresult of family feuds shall be kept in view andfavourably considered for parole.” [CRLW 1020 2021]A prisoner claiming emergent parole under Rule 10A may notsuffer from any ineligibility as prescribed under Rule 14. A divisionbench of this Court has in the case of Kishan vs. State ofRajasthan & Ors. 1990(1) RLR 652 held as under:“8. We find from a perusal of Rule 14 that classes ofprisoners referred to in that rule will ordinarily not beeligible for release on parole unless they haveundergone 1 4th of the sentence including remissionand the Superintendent of Jail recommends the case inconsultation with the District Magistrate with specialreasons therefor. Rule 10A deals with special situations.The term `ordinarily’ used in Rule 16has to beconstrued in harmony with the provisions contained inRule 10A relating to emergency cases. There is everyjustification for saying that ordinarily the persons whoare convicted for offences specified in Rule 14 may notbe given the benefit of parole without fulfillment of thecondition of having undergone 1 4th of the sentenceincluding remission. However the term `ordinarily’ ifconstrued in contradistinction to extraordinarysituation it is clear that there is no conflict betweenRule 10A and Rule 14. Rule 10A deals withemergent cases involving humanitarianconsiderations. This carves out an exception toother rules. Therefore by reading two provisionstogether we come to the conclusion that in emergentcases involving humanitarian considerations also thereis no bar for release of a prisoner before completion of1 4th of sentence including remission. If theseprovisions are read harmoniously we see no infirmityor voice of discrimination. Obviously therefore theargument of Shri Chaudhary that rule 14 violatesarticle 14 of the Constitution deserves to be negatived.[CRLW 1020 2021]9.We are of the considered opinion that if anapplication is made by a person who is a convict of thecategories specified in Rule 158 Rules and hesatisfies the conditions specified in Rule 10A he isentitled to be released on parole.”Thus a perusal of the scheme of the Rules of 1958 makes itabundantly clear that the parameters for grant of parole underRule 9 and grant of emergent parole under Rule 10A are quitedistinct and operate in their independent arena but are based onsound logical reasoning. A prisoner can be granted emergentparole even if he has not acquired eligibility for grant of parolevide Rule 9 in view of ineligibility provided under Rule 10 or Rule14. The length of sentence served by a prisoner as well as his jailconduct conduct during earlier parole(s) are the relevant criteriafor grant of regular parole the conditions which may notnecessarily be concomitant for grant of emergent parole.Therefore in considered opinion of this Court the case of aprisoner released on parole under Rule 9 and a prisoner releasedon emergent parole under Rule 10A is not on similar footing andparity cannot be claimed by the petitioner on that basis underRule 10B. Further the judgement passed by Hon ble Apex Court in thecase of Suo Motu Writ PetitionNo.1 2020 In Re: Contagion ofCovid 19 Virus in Prisons and minutes of the meeting of the HighPowered Committee under the Chairmanship of Hon ble Mr. JusticeSangeet Lodha Executive Chairman Rajasthan State LegalServices Authority dated 13.5.2021 reflect that a consciousdecision was taken to extend the parole period of the prisonersalready availing special parole regular parole in the wake of Covid 19. It may be pertinent to observe here that special parole in[CRLW 1020 2021]terms of newly inserted Rule 10B could be availed only by thoseprisoners who have already availed first second or third parolepeacefully and their behaviour has been good during the period ofsuch parole. There has been no recommendation for grant ofspecial parole extension of parole period for the prisoners availingemergent parole and for good reason. As we have alreadydiscussed the criteria for grant of regular parole and emergentparole operate in their own independent field. Further Rule 10Bitself carves out an exception to grant of special parole in itsproviso wherein it has been laid down that the special parole shallnot be granted to the prisoner who has been convicted for theoffence related to Acid Attack Rape Dacoity Murder section 4 or6 of the Protection of Children from Sexual Offence Act 2012 theNarcotic Drugs and Psychotropic Substances Act 1985 EconomicOffences the Prevention of Corruption Act 1988 the Preventionof Money Laundering Act 2002 Anti National Activities theUnlawful ActivitiesAct 1967 or any other offence ofsimilar nature or the cases investigated by any centralinvestigating Agencies whereas there is no such bar for grant ofemergent parole to a prisoner convicted for some of suchoffences. Therefore a prisoner on emergent parole cannot claimparity with a prisoner on regular parole special parole. Therefore the contention of the learned counsel for the petitioner as to Rule10B being discriminatory has no merit.Undoubtedly the object behind the insertion of Rule 10B isde conjestion in jail and to avoid spread of infection in the wake ofCovid 19 however if the contention of the learned counsel for thepetitioner that for this very reason a prisoner on emergent paroleis also entitled for the same benefit is accepted it may have far[CRLW 1020 2021]reaching and sweeping effect. Such a spacious plea can beadopted and applied for each and every new entry in the jail. Rule10B has a salutary object behind it whereby a person on specialparole regular parole has been held entitled for special parole orextension of parole period. As already discussed length ofsentence served as well as jail conduct conduct during earlierparole(s) is the relevant criteria for grant of special parole regularparole no such statutory requirement exists for grant of emergentparole under Rule 10A of the Rules of 1958. Even otherwise also as already observed proviso to Rule 10B itself lays down certainexceptions for the prisoners convicted under certain offences who otherwise are entitled for grant of regular parole. TheHon’ble Apex Court has conscious of the aforesaid aspect confined new entry of the inmates in the jail to the categories ofthe person as prescribed in Arnesh Kumar vs. State of Bihar AIR 2014 SC 2756 in the judgement passed by it in the case ofSuo Motu Writ PetitionNo.1 2020. Therefore the contentiondeserves to be dismissed. There is another aspect of the matter. The petitioner isseeking direction for the respondents to amend the Rule 10B. Thejurisdiction of the Court to give any direction for amending the Actor the statutory Rule is very limited. A three Judges Bench of theHon ble Supreme Court has in the case of Union of India & Ors.vs. Association for Democratic Reforms & Ors.5SCC 294 held as under:"19. At the outset we would say that it is not possible forthis Court to give any directions for amending the Act orthe statutory Rules. It is for the Parliament to amend theAct and the Rules. It is also established law that no[CRLW 1020 2021]direction can be given which would be contrary to the Actand the Rules.20. However it is equally settled that in case when the Actor Rules are silent on a particular subject and theAuthority implementing the same has constitutional orstatutory power to implement it the Court can necessarilyissue directions or orders on the said subject to fill thevacuum or void till the suitable law is enacted.”A Division Bench of this Court has in the case of Priamvadavs. State of Rajasthan & Ors. MANU RH 1419 2001 whilerejecting the prayer of the petitioner seeking a direction foramendment in the Rajasthan Judicial Services Rules 1955 on thestrength of the judgement of the Hon’ble Apex Court in the case ofAll India Judges’ Association & Ors. vs. Union of India & Ors.4 SCC 288 held as under:“16. We have carefully perused the above judgment. Weare conscious of the fact that the Hon ble Supreme Courtwas exercising powers under Art. 32 of the Constitution ofIndia read with Art. 142 of the Constitution of India whileissuing the said directions in order to do complete justiceto the parties but while exercising powers under Art. 226of the Constitution of India the writ court can enforce thelaw or declare the same ultra vires if the same is violativeof fundamental rights or the authority concerned likes thecompetence to enact or make the same but cannot issuemandamus or directions to the Legislative Authorities toamend the Law.”We find no such exigency obtaining in the present case.Learned counsel for the petitioner could not satisfy this Court as toits authority to issue direction to the respondents to amend theRule with which we otherwise do not find any fault.[CRLW 1020 2021]In the result the criminal writ petitionis dismissedbeing devoid of merit.(MAHENDAR KUMAR GOYALJ(SANJEEV PRAKASH SHARMAJRAVI SHARMA 1 

Summary: Parole is considered conditional freedom for a prison inmate. The parolee gets out from behind bars but is bound by law to live up to a series of responsibilities. A parolee who doesn’t follow the rules risks going back into custody. This judgment is a D.B.  criminal writ petition (parole) No.1020/2021 this case Nilam Kumar vs. the state of Rajasthan, it has been given in the high court of Rajasthan, on the 22nd June of 2021 by Hon’ble Mr. justice Sanjeev Prakash Sharma and Hon’ble Mr. justice Mahender Kumar Goyal, the petitioner asked in prayer to the court to make necessary amendment in rule 10b(2) of the Rajasthan prisoners release on parole rules 1958, as he himself wanted a release on parole and also wanted to extend his period of release on parole. According to this case, the petitioner was convicted and sentenced to undergo imprisonment for life, for the offenses under section 302,307 of IPC and section 3(2) (V) of SC/ST act, 1989 and section 3/25 of arms act at the central jail, Udaipur and has already served 6 years of imprisonment, according to the order on 25/05/2021 the petitioner was granted emergent parole for 15 days under rule 10A of the Rajasthan prisoners ( release on parole) rules, 1958   by the district magistrate because his father was infected by the coronavirus. However, the petitioner requested an extension of this period. The government of Rajasthan inserted rule 10B in the rules of 1958 as the special parole in the wake of covid – 19. Under the amendment in the interest of the prisoners and on recommendation by the prisoner’s parole advisory committee the period was extended to 4 weeks to only those prisoners who have showcased conduct comfortable to the law on availing the previous parole. However, this amendment doesn’t apply to prisoners convicted for rape, murder, acid attack, etc. The state government vides notification on 17/05/2021 amended rule 10B of the rules of 1958 according to sub rules the existing expression shall be substituted, the extension of the parole shall be substituted.  The council for the petition claims for relief in the writ petition and held that the provisions of rule 10B of the rules of 1958 are discriminatory. The council prayed for amendment of the rules so as to extend the parole only as a special treat for those on emergent parole as here the father of the petitioner was affected by covid – 19. However, the respondent opposed the prayer. Section 432(5) of Crpc 1973 gives the power to the court to exercise its jurisdiction. According to rule 9 of the 1958 rules, a parole period is when a prisoner has availed parole previously and has exhibited good behavior and not likely to relapse into crime and those who upheld good conduct in jail. However certain categories of prisoners will not be eligible for release on parole e.g., Persons convicted under the Explosive Substances Act, 1908, Prisoners who have escaped from the Jail or Police custody or attempted to escape, etc. The division bench of this court referred to the case of Kishan vs. state of Rajasthan &amp; Ors – 1990(1), Arnesh Kumar vs. State of Bihar-AIR 2014 SC 2756, three-Judges Bench of the Hon’ble Supreme Court in Union of India &amp; Ors. vs. Association for Democratic Reforms &amp; Ors. -(2002) 5SCC 294, Priamvada vs. State of Rajasthan &amp; Ors. -MANU/RH/1419/2001.