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Smt Suman Devi vs State on 19 February, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Writs No. 430/2018

Smt Suman Devi W/o Shri Gadsiram, Aged About 35 Years, R/o
Bhukarka, Tehsil Nohra, Dist. Hanumangarh.
(Convict/prisoner Hardat Singh S/o Late Shri Mahendra Singh At
Present Open Air Camp Shriganganagar)

—-Petitioner
Versus

1. State, Through Secretary, Department Of Home,
Secretariat, Rajasthan, Jaipur.

2. The District Collector, Hanumangarh.

3. The Superintendent, Central Jail, Shriganganagar.

—-Respondents

For Petitioner(s) : Mr. Kalu Ram Bhati.
For Respondent(s) : Mr. Farzand Ali, AAG-cum-GA.

HON’BLE MR. JUSTICE SANDEEP MEHTA
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

19/02/2019

Heard learned counsel for the parties. Perused the material

available on record.

The petitioner’s brother Hardat Singh son of Shri Mahendra

Singh and mother Smt. Santosh Devi were convicted for the

offences under Sections 498A and 304B IPC and sentenced to

imprisonment for life by the learned Additional District and

Sessions Judge, Bhadra, District Hanumangarh vide judgment

dated 09.11.2012. The appeal against conviction preferred by the

convicts has been dismissed by this Court vide judgment dated

03.10.2018. Having completed more than 8 years of sentence

including permissible remissions, the convict Hardat Singh prayed
(2 of 6) [CRLW-430/2018]

for pre-mature permanent parole under Rule 9 of the Rajasthan

Prisoners Release on Parole Rules, 1958 (hereinafter referred to as

‘the Rules of 1958″). However, his application for permanent

parole was not recommended by the State Government which

dismissed the case of the convict vide communication dated

14.09.2018. Accordingly, the petitioner, being the sister of the

convict, has approached this Court by way of the instant writ

petition seeking to assail the impugned adverse recommendations

and praying for a direction to release the convict prisoner on

permanent parole for the remainder of his period of sentence by

virtue of Rule 9 of the Rules of 1958.

The respondents have filed a reply to the parole writ petition

admitting that the work performance and conduct of the prisoner

in jail are satisfactory and above board. However, observing that

the prisoner has been convicted for the offence of dowry death of

his wife within a period of seven years from their marriage and

since, the offence comes within the category of a heinous one, the

permanent parole application of the prisoner was rightly rejected

by the State Government vide recommendations dated

14.09.2018.

During pendency of the parole writ petition, the petitioner

filed an additional affidavit mentioning therein that co-convict

namely Smt. Santosh Devi, who too was sentenced in the same

terms as Hardat Singh, has been granted permanent parole vide

recommendations dated 11.01.2019 and thus, Hardat Singh also

deserves to be released on permanent parole on parity. A specific

averment is made at para (E) of Grounds of the writ petition that

cases of various other prisoners who were also convicted for

heinous offences under Sections 376 and 304B IPC and sentenced
(3 of 6) [CRLW-430/2018]

to life imprisonment have been recommended by the State

Government for permanent parole while exercising powers under

Rule 9 of the Rules of 1958.

This Court directed the learned Additional Advocate General

to file a pertinent reply to these assertions made by the petitioner

in the writ petition. In response, the respondents have filed a

counter affidavit in which, the fact regarding the convicts

Parmanand, Rajuram, Balraj, Jai Prakash, Arif, Sandeep Tanwar

and Dinesh Kumar, all of whom were convicted for the offence

under Section 304B IPC, having been released on permanent

parole, has not been disputed and is rather admitted. However,

the respondents have tried to explain the situation by mentioning

in the counter affidavit that those prisoners had served

significantly longer terms of imprisonment as compared to the

convict Hardat Singh before their cases were considered and

recommended for permanent parole. It is also mentioned

regarding the convict prisoner Hardat Singh that he has only

undergone imprisonment of 7 years and 1 month and thus, the

said short term of stay in the prison has not been considered

sufficient so as to entitle him for release on permanent parole.

We have heard and appreciated the submissions advanced at

bar and have gone through the statutory provision i.e. Rule 9 of

the Rules of 1958 and various orders placed on record.

Rule 9 of the Rules of 1958 is reproduced hereinbelow for the

sake of ready reference:-

“9. Parole Period. – A prisoner, who has completed with
remission, if any, [onefourth] of his sentence and subject to
good conduct in the Jail, may be released on Ist 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
(4 of 6) [CRLW-430/2018]

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 he is not likely to
replace into crime, his case may be recommended to the
Government through the 3 [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.

Section 433A of Cr.P.C. postulates that:-

“Restriction on powers of remission or Commutation in
certain cases. Notwithstanding anything contained in section
432, where a sentence of imprisonment for life is imposed on
conviction of a person for an offence for which death is one
of the punishments provided by law, or where a sentence of
death imposed on a person has been commuted under
section 433 into one of imprisonment for life, such person
shall not be released from prison unless he had served at
least fourteen years of imprisonment.”

In view of the fact that death sentence is not one of the

penalties provided by law for the offence under Section 304B IPC,

manifestly, the restriction contained in Section 433A of the Cr.P.C.

and the proviso to Rule 9 of the Rules of 1958 would not act to the

detriment of the convict Hardat so as to make him ineligible for

consideration for grant of permanent parole. The jail authorities
(5 of 6) [CRLW-430/2018]

have recommended his case for grant of permanent parole noting

that his work performance and conduct in Jail is satisfactory. The

co-convict Smt. Santosh Devi, who of-course is a woman, has

been granted permanent parole by the State Government. The

fact mentioned in the additional affidavit that the convict had only

served 7 years and 1 month imprisonment till 31.05.2018 and

thus, he cannot be considered for grant of permanent parole, does

not stand to reasoning because as per Rule 9, referred infra, a

convict who has completed with remission, if any, one fourth of his

sentence and has availed of first three paroles and his character

has been exceedingly well and if he is not likely to relapse in

crime, his case can be recommended to the State Government for

release on permanent parole. Admittedly, the convict Hardat

Singh, has served the required period of sentence and has also

availed the first three paroles without a demur. His conduct and

work performance are satisfactory. Thus, he has become entitled

to be considered for permanent parole in light of the

recommendations of the prison authorities as well as the

Additional District Magistrate placed on record with the writ

petition. The contention of Shri Farzand Ali, learned Additional

Advocate General that the convict would have to serve at least 7

years 9 months of sentence before earning entitlement for

permanent parole is not relevant because as per the nominal roll

(Annexure-2), the convict had suffered total imprisonment of 8

years, 3 months and 6 months (including remission) upto

15.05.2018. Hence, we have no hesitation in holding that the

convict Hardat Singh has definitely undergone the requisite term

of imprisonment and has also availed of three regular paroles with

good behaviour and his character has been exceedingly well
(6 of 6) [CRLW-430/2018]

during this period making him compliant of the legal requirement

of Rule 9 of the Rules of 1958 so as to be considered entitled to

release on permanent parole.

In this background, we hereby quash the impugned

recommendations dated 14.09.2018 qua the convict prisoner

Hardat Singh. We remand the matter back to the State

Government who shall objectively reconsider his case for grant of

permanent parole under Rule 9 of the Rules of 1958 and pass a

reasoned order thereupon within a period of two months from

today while keeping in view the observations made above.

The parole writ petition is disposed of in these terms.

(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J

20-Tikam/-

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