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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