Suresh Kumar Solanki vs State Of Rajasthan And Ors

Heard learned counsel for the parties. Perused the material available on record.

The instant criminal writ petition has been instituted on the letter forwarded from Jail by the convict petitioner Suresh Kumar Solanki, who has been convicted for the offence under Section 302/120B IPC and sentenced to life imprisonment vide judgment dated 30.08.2008 passed by the learned Additional Sessions Judge, (Fast Track) No.2, Pali.

As per the reply of the respondents, the convict had undergone total sentence of 12 years 2 months and 18 days by 25.09.2018. The jail authorities have rejected the prayer of the convict prisoner for grant of special remission of 180 days by effect of the State Government's order dated 21.02.2014 which excludes prisoners convicted for the offence under Section 120B IPC from the zone of consideration for grant of special remission.

The contention of Ms. Swati Katoch, learned Amicus Curiae representing the petitioner for assailing the impugned order is based on this Court's Judgments in the cases of Khyali Ram vs. State & Ors. (D.B. Civil Parole Writ Petition No.9705/2014) decided on 12.02.2015 and Gordhan vs. State of Rajasthan, reported in 2013(3) Cr.L.R. (Raj.) 1578. As per Ms. Katoch, since in both these cases, this Court had categorically held that once the convict serves out the sentence for the prohibited offence, there cannot be any reason so as to deny him the benefit of special remission. She thus urges that the convict petitioner is entitled to be considered for grant of special remission so that he can take advantage of the provisions of the Rajasthan Prisons (Shortening of Sentences) Rules, 2006 (hereinafter referred to as the 'Rules of 2006').

Per contra, Shri Abhishek Purohit associate to Shri Farzand Ali, GA-cum-AAG vehemently and fervently opposed the submissions advanced by the learned Amicus Curiae. He contended that the convict petitioner has been convicted for the offence under Section 302/120B IPC and as such, he is not entitled to claim benefit of special remission granted by the State Government by virtue of the restrictions contained in Section 8 of the Rules of 2006 and the State Government's order dated 21.02.2014. He thus craves dismissal of the writ petition.

We have given our thoughtful consideration to the submissions advanced at bar and have gone through the statutory provisions.

Rule 8 of the Rules of 2006 which forms the bone of contention between the parties is reproduced herein below for the sake of ready reference:-

"8. Prisoners eligibility for consideration by the advisory Board.-

(1)The Advisor Board may consider the cases of the following type of prisoners only:-

(i) a prisoner undergoing a substantive sentence of five years or over, and who has completed two thirds of imprisonment, including remission;

(ii) a prisoner sentenced to imprisonment for life or for more than 14 years, and who has served 2/3rd of his sentence excluding remission or 13 years 4 months of imprisonment including remission) whichever is less. The period of imprisonment shall include sentence in default of payment of fine, if the same has not been paid;

(iii) Prisoners awarded sentences by Court-Martial who have served two-third of their sentences including the period of remissions;

(iv) Prisoners suffering from fatal diseases like cancer, AIDS, or infectious diseases, such as leprosy; provided their disease is likely to be dangerous to other prisoners and conditions prescribed in rule 7 are fulfilled;

(v) Prisoners who are completely blind or handicapped and are wholly dependent on others for their daily routine work;

(vi) Prisoners who have attained the age of 70 years in case of male prisoners and 65 years in case of women prisoners and who have completed at least one third of their sentence, and 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.

(2) Notwithstanding anything in sub-rule (1)

(i) a prisoner who has been sentenced-to imprisonment for life for an offence for which death penalty is one of the punishment provided by law or who has been sentenced. to death but his sentence has been commuted under Section 433 of Code of Criminal Procedure, 1973, into one of imprisonment for life, shall be considered only after he has served 14 years of actual imprisonment excluding remission but including the period of detention spent during enquiry, investigation or trial, on the condition that such a prisoner shall also have to earn a minimum of 4 years of remission in order to be eligible for consideration.

(ii) prisoners sentenced to imprisonment for life under Sections 304 B, 376, 396, 467, and 489 'D of the Indian Penal Code may be considered for premature release only after completion of 14 years of actual imprisonment (with the period undergone during trial), on the condition that such a prisoner shall also have to earn a minimum of 4 years of remission in order to be eligible for consideration.

Explanation:- For the purpose of this rule, remission shall mean only that part of the remission which is actually earned by a prisoner in accordance with the provisions of the Jail Manual but shall not include any special remission that may be awarded to prisoners in general to mark the occasion of some events like Independence Day, Republic Day, Centenary Celebrations of National Leaders, visit of some dignitaries to jail, etc."

Manifestly, as per the explanation provided below Rule 8 of the Rules of 2006, only the remission which has been actually earned by the prisoner in accordance with the Jail Manual would be counted when the eligibility of the prisoner for grant of shortening of sentence is being considered. Thus, by no stretch of imagination, can the petitioner claim advantage of the special remission while seeking shortening of sentence with reference to Rajasthan Prisoners Release on Parole Rules, 1958 (hereinafter referred to as 'the Rules of 1958").

However, we still have to deliberate upon the issue whether the prisoner can take advantage of the special remission period for taking benefit of The Rajasthan Prisoners Release on Parole Rules, 1958. A plain reading of the State Government's order dated 21.02.2014 and clause 3(14) thereof indicates that a person who has been convicted exclusively for the charge under Section 120B IPC would be proscribed from claiming special remission. However, since the conviction of the petitioner was not exclusively recorded for offence under Section 120B IPC and, as he has been convicted for the offence under Section 302 IPC with the aid of Section 120B IPC, we feel that the prohibition under Clause 3(14) of the order dated 21.02.2014 would not work to the prejudice of the petitioner.

Accordingly, we dispose of the instant criminal writ petition while observing that the petitioner shall be granted special remission as permissible under the rules / State Government's orders and the said period of special remission shall be counted when the petitioner's case is considered for grant of Parole under the Rules of 1958.

The writ petition is disposed of accordingly.