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Rakesh v/s State of Rajasthan, Through Secretary, Department Of Home, Secretariat, Rajasthan, Jaipur


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    Criminal Writ Petition No. 15 of 2020

    Decided On, 14 May 2020

    At, High Court of Rajasthan Jaipur Bench

    By, THE HONOURABLE MR. JUSTICE SANGEET LODHA & THE HONOURABLE MR. JUSTICE RAMESHWAR VYAS

    For the Appearing Parties: Kalu Ram Bhati, Farzand Ali, Advocates.



Judgment Text


Sangeet Lodha, J.

1.This petition is filed by the petitioner, a life convict, through his mother Smt. Kamla Devi, aggrieved by an order dated 23.12.19 issued by the State Government, whereby pursuant to the recommendations made by the State Level Parole Committee, an application preferred on his behalf seeking release on permanent parole under Rule 9 of the Rajasthan Prisoners Release on Parole Rules, 1958 (for short "the Rules of 1958"), stands rejected.

2. The application has been rejected on the ground that on being released on interim bail vide order dated 10.8.09 for a period of 15 days, the petitioner did not surrender after expiry of the period of interim bail and was later arrested on 28.8.09, under Section 109 Cr.P.C. Thereafter, the petitioner was released on first parole for a period of 20 days from 9.4.13 to 28.4.13 but again he did not surrender after expiry of the parole period and absconded. He was arrested for commission of an offence under Section 379 IPC and lodged in prison on 30.5.13. That apart, the State Parole Advisory Committee observed that the petitioner has been convicted for an offence of abducting and committing rape on a lady, German national, and thus, on the facts and in the circumstances of the case, he is not entitled to be released on permanent parole.

3. Learned counsel appearing for the petitioner submitted that on account of breach of the condition during the first parole, the petitioner could not avail second and third parole under Rule 9 of the Rules of 1958 but, he was released on parole for 7 days and thereafter for 15 days under Rule 18 (ii) of the Rules of 1958 and on both the occasions, he surrendered peacefully on expiry of the period of parole and thus, the breach of condition on his part while availing the first parole should not come in his way for grant of permanent parole under Rule 9 of the Rules of 1958. Learned counsel submitted that even the person who does not avail the first, second and third parole under Rule 9 of the Rules of 1958, is eligible to be considered for release on permanent parole and thus, merely because the petitioner was found guilty of breach of the conditions of the parole granted under Rule 9 of the Rules of 1958, he cannot be denied permanent parole. In this regard, learned counsel has relied upon a Bench decision of this Court in Suraj Giri & Ors. Vs. State of Rajasthan & Ors,2010 2 CrLR 1567. Learned counsel submitted that the petitioner has already served more than 14 years of actual sentence without remission and more than 17 years with remission and his conduct during the stay in the jail being satisfactory, he is entitled to be released on permanent parole under Rule 9 of the Rules of 1958.

4. On the other hand, learned Additional Advocate General while supporting the order impugned passed by the State Government, submitted that admittedly, during the first parole, the petitioner did not behave well and indulged in commission of crime and therefore, he was not eligible to be considered for release on permanent parole under Rule 9 of the Rules of 1958 and he has to undergo the unexpired portion of the sentence. Learned AAG submitted that the petitioner having committed breach of conditions while on first parole, he was not entitled for grant of second and third parole, though on the recommendations of the Superintendent of Jail concerned, he was released on parole twice, first for 7 days and thereafter for 15 days, under Rule 18(ii) of the Rules of 1958. It is submitted that the petitioner is entitled to apply for fourth parole for 30 days under Rule 18 of the Rules of 1958 as also parole for 40 days every year under Rule 9 of the Rules of 1958, but he cannot be released on permanent parole in terms of Rule 9 of the Rules of 1958 and thus, the application preferred by him has rightly been rejected.

5. We have considered the rival submissions and perused the material on record.

6. Admittedly, the grant of first, second, third parole as also the permanent parole to a prisoner is governed by Rule 9 of the Rules of 1958, which may be beneficially quoted:

"9. 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 Ist 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 replace into crime, his case may 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 uopn 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."

7. Indubitably, under the said rule, a prisoner who has completed with remission if any, one fourth of the sentence, is entitled to be released on first parole for 20 days subject to good conduct in jail. But then, for grant of second and third parole for 30 days and 40 days respectively, it is condition precedent that the conduct of the prisoner during first and second parole respectively, has been good. To put in other words, if the behaviour of the prisoner during first parole was not good, he may not be released on second parole for a period of 30 days. Similarly, if his behaviour during second parole was not good, he will not be entitled to be released on third parole. Further, the prisoner becomes entitle to consideration for release on permanent parole if following conditions are satisfied:

(i) During the third parole, the prisoner behaved well and his character has been exceedingly well; and

(ii) His conduct has been such that he is not likely to relapse into crime;

It is pertinent to note that on the aforesaid conditions being satisfied, the recommendation shall be made by the State Parole Advisory Committee to the State Government for permanent release of the prisoner on parole on such condition as deemed fit by the Superintendent Jail and the Magistrate concerned, the chief condition in this regard 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 unexpired portion of the sentence in addition to any sentence imposed upon him by reason of such an offence. Thus, the likelihood of the prisoner relapsing into crime is a good ground for denial of permanent parole and if after the grant of parole, the prisoner indulged in commission of offence, the parole granted shall be liable to be terminated and he will have to undergo the unexpired portion of the sentence in addition to the sentence which may be imposed upon him on account of breach of condition.

8. As indicated in Rule 13 of the Rules of 1958, the grant of parole is regarded as concession to encourage good conduct and it cannot be claimed by the prisoner as a matter of right. But the fact remains that the grant of parole to a prisoner is an endeavour to reform him as a person so that he may be prevented from relapsing into crime and while establishing the link with the society again become a law abiding citizen. The purpose behind the grant of parole has been discussed by the Supreme Court in detail in the matter of Asfaq vs. State of Rajasthan, (2017) AIR SC 4986, as under:

"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 at least some time provided they maintain good conduct, consistently during incarceration and show a 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.

.......xxxxx........

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 ultimately aimed for the good of the society and, therefore, are in public interest.

15. The provisions of parole and furiough, thus, provide for a humanistic approach towards those lodged in jails. Main purpose of such provisions is to afford to them an opportunity to solve their personal and family problems and to enable them to maintain their links with society. Even citizens of this country have a vested interest in preparing offenders for successful re-entry into society. Those who leave prison without strong networks of support, without employment prospects, without a fundamental knowledge of the communities to which they will return, and without resources, stand a significantly higher chance of failure. When offenders revert to criminal activity upon release, they frequently do so because they lack hope of merging into society as accepted citizens. Furioughs or parole can held prepare offenders for success." (emphasis added)

9. However, the Court observed that while meeting out human treatment to the convicts, care has to be taken to ensure that kindness to the convict does not result in cruelty to the society. Dealing with the issue whether there can be any presumption that a person who is convicted of serious or heinous crime is to be ipso facto, treated as hardened criminal, the Court observed:

"19.....xxx... 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. Obviously, 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 categorised as a hardened criminal. In his case consideration should be as to whether he is showing the signs to reform himself and become a good citizen or there are circumstances which would indicate that he has a tendency to commit the crime again or that he would be a threat to the society. Mere nature of the offence committed by him should not be a factor to deny the parole outrightly. Wherever a person convicted has suffered incarceration for a long time, he can be granted temporary parole, irrespective of the nature of offence for which he was sentenced. We may hasten to put a rider here, viz. in those cases where a person has been convicted for committing a serious offence , the competent authority while examining such cases, can be well advised to have stricter standards in mind while judging their cases on the parameters of good conduct, habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquility etc." (emphasis added)

10. In the backdrop of the position of law governing grant of parole discussed above, adverting to the facts of the present case, admittedly, in the first instance, when the petitioner was released on interim bail, he did not surrender peacefully after expiry of the period of interim bail and was lodged in prison after arrest under Section 109 Cr.P.C. Thereafter, on release on first parole for a period of 20 days, again the petitioner did not surrender after expiry of the period of parole voluntarily rather, indulged in commission of an offence under Section 379 IPC and consequently, arrested and lodged in jail. It is not disputed that looking at the conduct of the petitioner in not maintaining the good behaviour during the first parole and indulging in commission of the crime, he was not extended benefit of second and third parole under Rule 9 of the Rules of 1958. As a matter of fact, the recommendations could be made by the State Level Parole Advisory Committee for release of a prisoner on permanent parole only if after due consideration it arrives at the conclusion that the prisoner if released on permanent parole, is not likely to relapse in the crime. Thus, on the facts and in the circumstances of the case, where the petitioner had indulged in commission of the fresh offence during the first parole and for this reason, he was not extended benefit of second and third parole under Rule 9 of the Rules of 1958, for the parity of reasons, the conclusion arrived at by the State Level Parole Advisory Committee that the petitioner is likely to relapse into crime if released on permanent parole, cannot be faulted with. On the facts and in the circumstances of the case, the State Parole Advisory Committee was absolutely justified in taking into consideration the additional fact regarding the petitioner being convicted and sentenced for commission of a heinous crime in committing rape on a lady, a foreign national, while denying him permanent parole.

11. It is contended by the petitioner that since he has already served 14 years of sentence without remission and therefore, he is entitled to be released on permanent parole. In the considered opinion of this Court, from perusal of Rule 9 of the Rules of 1958, in no manner, it could be inferred that a prisoner who has already served substantive sentence of 14 years without remission, is ipso facto entitled for release on permanent parole. Rather, by virtue of proviso to Rule 9 of the Rules of 1958, the cases of the 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. Thus, the contention sought to be raised by the petitioner is absolutely devoid of any merit.

12. Coming to the contention of the petitioner that since he has availed parole twice under Rule 18 (ii) of the Rules of 1958 peacefully and therefore, he is entitled to be released on permanent parole under Rule 9 of the Rules of 1958, as a matter of fact, Rule 18 of the Rules of 1958 deals with punishment for breach of conditions of parole, which reads as under:

"18. Punishment for breach of conditions of Parole.- The following punishments may be awarded to the prisoners for over staying their sanctioned parole period or for breach of any other conditions laid down namely:-

(i) He should not be let off on parole in future unless the Superintendent of Jail is fully satisfied that he will not commit any breach of condition in future.

(ii) In case the prisoner is released on the recommendation of the Superintendent of Jail concerned after the breach of condition, the period of release on parole would be 7 days excluding days of journey to home and back. The next parole will be 15 days (provided he has behaved himself well during the period) and 30 days in the fourth parole.

(iii) If the prisoner again overstays or commits any breach of the terms of the parole, he shall be permanently debarred from the concession of release on parole.

13. Apparently, as per Rule 18, the prisoners who have overstayed their sanctioned parole period or have indulged in breach of any condition laid down, shall not be let off on parole in future unless the Superintendent of Jail is fully satisfied that he will not commit any breach of any condition in future. It is not in dispute that on the recommendations of the Superintendent of Jail concerned, after the breach of the condition as aforesaid, the petitioner was released on parole twice; for a period of 7 days and 15 days respectively, and he returned to the jail after expiry of the parole period in terms of Rule 18(ii) of the Rules of 1958 and thus, has become entitled to consideration for release on fourth parole for a period of 30 days. But Rule 18 does not envisage consideration for release on permanent parole after availing the fourth parole. Similarly, Rule 9 of the Rules of 1958 also does not provide for consideration of the prisoner's case for release on permanent parole after his availing the fourth parole in terms of Rule 18 (ii) of the Rules of 1958. To the contrary, Rule 20 of the Rules of 1958 mandates that if the prisoner commits any fresh offence during his parole period, he shall be rearrested and shall undergo the unexpired portion of his sentence besides any other sentence that may be awarded to him. In this view of the matter, in the considered opinion of this Court, merely because after availing the parole granted u

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nder Rule 18 (ii) of the Rules of 1958, the petitioner surrendered peacefully, his previous conduct in indulging in commission of the crime during first parole under Rule 9 of the Rules of 1958 shall not stand wiped out so as to make him entitled for grant of permanent parole. 14. It is true that as per the law laid down by this Court in Suraj Giri's case (supra), in cases where the prisoners have served requisite period of sentence, they may be released on permanent parole notwithstanding the fact that they have not availed the benefit of first, second and third parole or any of them. But in the instant case, the petitioner had availed the first parole and while on parole he indulged in commission of offence and thus, neither he was entitled to be released on second and third parole nor he is entitled to be considered for release on permanent parole in terms of Rule 9 of the Rules of 1958. Obviously, in terms of law laid down by this Court in Suraj Giri's case (supra), the case for release on permanent parole of the prisoner who has not availed the first, second and third parole, shall be considered on the basis of his conduct during the stay in jail including likelihood of his relapsing into crime if released on permanent parole. Suffice it to say that the petitioner who has not been extended the benefit of second and third parole on account of his indulging in commission of the crime during first parole, cannot be treated at par qua the person who has not availed the second and third parole after availing the first parole peacefully and thus, the question of his entitlement for release on permanent parole in terms of Rule 9 of the Rules of 1958 does not arise. 15. In view of the discussion above, the decision of the State Parole Advisory Committee in refusing to recommend the case of the petitioner for permanent parole, does not suffer from any infirmity or illegality so as to warrant interference by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India. 16. In the result, the petition fails, it is hereby dismissed. No order as to costs.
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18-06-2020 Bhawan Singh Garbyal & Another Versus State of U.P. Through Addl. Chief Secy. Home & Others High Court Of Judicature At Allahabad Lucknow Bench
16-06-2020 Jitendra Mohan Singh Versus State of U.P. Thru. Prin. Secy. Home & Others High Court Of Judicature At Allahabad Lucknow Bench
12-06-2020 P.P. Ramachandra Kaimal Versus State of Kerala, Represented by Secretary To Government, Department of Home, Kerala Government Secretariat, Thiruvananthapuram & Others High Court of Kerala
11-06-2020 J. Antony Jayakumar Versus The State of Tamil Nadu rep. by Additional Chief Secretary to Government, Department of Home (Prison IV), Chennai & Others High Court of Judicature at Madras
04-06-2020 M. Sujatha Versus State represented by the Secretary to Government Department of Home & Another High Court of Judicature at Madras
04-06-2020 Surya Versus The State of Tamil Nadu Rep. by its Principal Secretary to Government, Home, Prohibition and Excise Department, Chennai & Others Before the Madurai Bench of Madras High Court
03-06-2020 P. Murugesan Versus State of Tamil Nadu rep. By its Secretary to Government, Home (Police) Department, Chennai & Others High Court of Judicature at Madras
02-06-2020 Nayee Soch Society (Regd.) Versus Ministry of Home Affairs & Others High Court of Delhi
02-06-2020 Balraj Versus State of Tamil Nadu, rep. by the Secretary to Government, Home, Prohibition and Excise Department, Chennai & Others Before the Madurai Bench of Madras High Court
29-05-2020 Vijay Ganesh @ Vijay @ Kurangu Vijay Versus State of Tamil Nadu, Rep. by the Principal Secretary to Government, Home, Prohibition and Excise (IX) Department & Others Before the Madurai Bench of Madras High Court
26-05-2020 L. Jayalakshmi Versus The Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai & Another High Court of Judicature at Madras
19-05-2020 Brij Kishore Dwivedi Versus Union of India, represented by and through the Secretary to the Government of India, New Delhi in the Ministry of Home Affairs, South Block, New Delhi & Others High Court of Tripura
18-05-2020 RM. Swamy Versus Government of India, Rep. by its Secretary, Ministry of Home Affairs, New Delhi & Others High Court of Judicature at Madras
15-05-2020 Parameshwaran Versus The Home Secretary (Prison),Secretariat, Chennai & Others High Court of Judicature at Madras
14-05-2020 Ramakanta Das & Others Versus The State of Tripura Represented by the Secretary, Government of Tripura, Home Department, Agartala High Court of Tripura
12-05-2020 Sheik Madhar Versus The State of Tamil Nadu, Rep.by its Principal Secretary to the Government, Home Prohibition & Exercise Department, Chennai & Others Before the Madurai Bench of Madras High Court
11-05-2020 Allu Srinivasa Rao Versus State of Telangana represented by its Principal Secretary, Home Department, Secretariat, Hyderabad & Others High Court of for the State of Telangana
08-05-2020 Sandip Madhu Nair Versus State, thr Home Deptt & Others In the High Court of Bombay at Nagpur
07-05-2020 Asa Uma Farooq Versus Union of India, through its its Secrtary, Ministry of Home Afairs, Government of India, New Delhi & Others High Court of Judicature at Madras
05-05-2020 R. Sreedhar Versus The Principal Secretary, Government of Tamil Nadu, Home Department, Chief Secretariat, Chennai & Others High Court of Judicature at Madras
04-05-2020 A. Palanisamy @ Palaniappan Versus The Home Secretary (Prison IV) Home Department, Secretariat, Chennai & Others High Court of Judicature at Madras
29-04-2020 AM (Zimbabwe) Versus Secretary of State for the Home Department United Kingdom Supreme Court
28-04-2020 HRT Builders, rep. by its Managing Partner Thondepu Ratna Srinivas Versus State of A.P. rep by its Principal Secretary, Home Department, Velagapudi & Another High Court of Andhra Pradesh
21-04-2020 Deodutta Gangadhar Marathe Versus The State of Maharashtra through Secretary, Department of Home, Mantralaya & Others High Court of Judicature at Bombay
21-04-2020 A. Mallikarjuna Versus Government of India Ministry of Home Affairs, Disaster Management Division, Represented by its Secretary & Others High Court of Karnataka
17-04-2020 Santhosha Nanban Home for Boys, Rep by its Superintendent Dorothy Marry Versus Union of India, Rep by The Chief Secretary to Government, Government of Puducherry, Chief Secretariat, Puducherry & Others High Court of Judicature at Madras