Bahadur Singh @APPELLANT@Hash State of Rajasthan & Ors.

These two petitions; one by the petitioner Bahadur Singh, a life convict, and another by his wife Smt. Hemlata, are filed aggrieved by order dated

13.6.18 issued by the State Government, whereby the application preferred by the convict Bahadur Singh 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.

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 224 IPC, wherein after

trial he was convicted and sentenced to suffer imprisonment for a period of six months and nine months respectively.

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 D.B.Criminal Writ No.80/18 before this court. The petition was

disposed of by this 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 Mohan Lal’s case (supra) within a period

of two weeks from receipt of certified copy of this order.â€​

In compliance of the directions issued by this court as aforesaid, the prayer of the convict Bahadur Singh 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.

Ordinarily, we would have again remanded the matter to the State Government for consideration afresh but taking into consideration the facts and

circumstances of the case, we consider it appropriate to examine the entitlement of the petitioner for permanent parole on merits.

As per Rule 9 of Rajasthan Prisoners Release on Parole Rules, 1958 (for short “the Rules of 1958â€), 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.

Rule 14 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 outsidethe State of Rajasthan or who have been convicted by a court Martial or a Court of another

State;

(b) Persons convicted under the Explosives SubstancesAct, 1908;

(c) Prisoners who have escaped from the Jail or Policecustody or attempted to escape;

(d) Persons who have been convicted for offences undersections 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, 459 and 460 of the Indian Penal Code, 1860; 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 to prisoners sentenced u/s. 302 IPC, 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.â€​

In the matter of Mohan Lal vs. State of Rajasthan, 2002(1) Cr.L.R. (Raj.) 460, this court while considering the nature of inhibition contained

regarding the grant of parole under Rule 14 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 R.14 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 Cl. (a) to (d) of R.14. Words of R.14 are expression with

“ordinarily†and the conditions for release of the persons, who have been named in Cl. (a) & (b) are to be considered only on conditions specified

in the later part of the said rule.

The expression “unless†denotes that the personsfalling 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.

In parenthesis R.14 read like this that the class ofpersons enumerated in Cls. (a) to (d) 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.

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 R.14, such convict applicant can be released on parole, otherwise not.

Thus, there is no absolute impediment in considering the application for release of persons 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.â€​     (Emphasis supplied)

Thus, as per the law laid down by this court in Mohan Lal’s case (supra), the inhibition contained in Rule 14 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.

In the matter of “Asfaq vs. State of Rajasthan & Ors.â€, 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 ultimately aimed for the good of the society and, therefore, are in public interest.      (emphasis

added)

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.

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.

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 Rule 9 of the Rules of 1958.

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 Rule 9 of the Rules of 1958.