Rajasthan High Court - Jaipur
Budhi vs State Of Rajasthan And Anr. on 25 October, 2005
Equivalent citations: 2006CRILJ357, RLW2006(1)RAJ289, 2006(1)WLC27
Author: R.S. Chauhan
Bench: R.S. Chauhan
JUDGMENT R.S. Chauhan, J.
1. Mr. Martin Luther King Jr., the great American Civil Libertarian once said. "I have a dream to be free at last, to be free at last, to be free at last." The promise of liberty is not just enshrined in the Constitution of India, out the dream of liberty is also engrained in every soul. Even a convicted prisoner, incarcerated within the strong walls of a jail, shackled to the chains, dreams of freedom at last. Such was the hope of the Petitioner after he completed 1/4 of his life sentence. He had prayed that he too should be released on regular parole of twenty days under Rule 9 of the Rajasthan Prisons (Release on Parole) Rules, 1958 (henceforth to be referred to as 'the Parole Rules' for short). However, the hope was short lived. Vide Order dated 14-6-2004, the Advisory Committee, constituted under the Parole Rules, rejected the Petitioner's case for regular parole. Hence the petition before us.
2. Mr. Suresh Sahni, the learned Counsel for the Petitioner, has challenged the said order on four accounts. Firstly, the Advisory Committee has rejected the Petitioner's parole on the ground that although the Petitioner had sought regular parole on the ground of operation of his mother's eyes, but there are other brothers of his who could get the operation done. Therefore, according to the Social Welfare Officer the parole need not be granted for the said purpose. According to Mr. Sahni, a convicted prisoner need not specify any reason for seeking a regular parole under Rule 9 of the Parole Rules. Secondly, the Advisory Board has ipse dixit accepted the adverse Police Report without consideration the fact that the said report is a mechanical one. Thirdly, although the Petitioner is unmarried, yet the Social Welfare Officer has stated that the Petitioner's wife and children have also requested that the Petitioner should not be ' released on parole. Thus, the said report is contrary to the factual matrix of the case. Fourthly, the conduct of the Petitioner should be taken into account only up to the date of the impugned order. The subsequent events should not be considered. For, what is being challenged is the decision of the Advisory Board as it was taken on the date of the impugned order. Therefore, the subsequent conduct is immaterial.
3. On the other hand, Mr. M. L. Goyal, the learned Additional Government Advocate, has argued that since parole cannot be claimed, as of right, therefore, the convicted prisoner should furnish a reason for seeking a parole. Secondly, the Police Report is not a mechanical one. Thirdly, the Petitioner's wife and children have stated that the Petitioner should not be released on parole. Foruthly, on 4-6-2005 the Petitioner was involved in a fray in the jail. Thus, he has flouted the jail disciple. Hence, the Petitioner should not be granted the benefit of parole.
4. We have not only heard the Learned Counsels, but have also scanned the record of the case.
5. In order to appreciate the first contention of the Learned Counsel for the Petitioner, it is imperative to examine Rule 9 and Rule 10 A of the Parole Rules, Rule 9 is as under:
9. Parole period.-- 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 the 1st 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 relapse 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 upon him by reason for 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.
6. Rule 9 deals with the regular parole, or what is popularly called in Hindi as the "Haq ki parole". According to the said Rule, once a convicted prisoner has completed 1/4 of his sentence and in case his conduct during this period is "good", then he is eligible for consideration of his case for first regular parole.
7. On the other hand, Rule 10A of the Parole Rules deals with the emergent parole. Rule 10A is as under :
10A. (1) Notwithstanding the provisions of Rules 3, 4, 5, 9 and 10, in emergent cases, involving humanitarian considerations viz. (1) critical condition on account of illness of any close relations i.e. father, mother, wife, husband, children, brother or unmarried sister (2) death of any such close relation; and (3) serious damge to life or property from any natural calamity. (4) Marriage of a prisoner, his/her son or daughter of his/her brotehrs/sisters in case his/her parents are not alive. A prisoner may be released on parole for a period not exceeding 7 days by the Superintendent of the Jail and for a period not exceeding 15 days by the Inspector General of Prisons, District Magistrate, on such terms and conditions as they may, consider necessary to impose for the security of the prisoner including a guarantee for his return to the Jail, acceptance or execution whereof would be a condition precedent to the release of such a prisoner on parole.
8. A bare comparison of Rule 9 and 10-A brings out the contrast between the two Rules. While the former deals with the regular parole, the latter with the emergency parole. While the former is granted on completion of certain period of incarceration, the latter is granted for a specific reason. Therefore, the former does not require the existence of any reason for granting the parole; the latter requires the existence of a specific reason for its grant e.g. death in the family, the marriage of sons or daugthers, damage to the property etc. Thus, while seeking the regular parole, the convict need not assign any reason; for seeking an emergency parole, he must specify a reason. Moreover, while the regular parole can be granted after an interval of one year, the emergency parole is granted as and when an emergency arises.
9. These distinctions need to be kept in mind. For, otherwise one is likely to blur the difference between the two provisions of law. It is, indeed, a well-settled principle of Law that no provision is redundant. Each provision of law operates in its own field. Thus, the Advisory Board should have realized that a convicted prisoner need not assign any reason for seeking a regular parole. Thus, the Advisory Board fell into an error in requiring the Petitioner to state a reason for seeking a regular parole. The Advisory Board also confused the ambit and scope of Rules 9 and 10-A of the Parole Rules. Hence, the decision of the Advisory Board is based on misreading of the Law.
10. A bare perusal of Annexure R-1, the Police Report, clearly shows that the police without mentioning the evidence on which the said conclusions are based have stated only the conclusions. It has concluded that there is possibility of breach of peace in case the Petitioner were released on parole. But, it has not stated on what grounds it has drwan this inference. Thus, the report is highly mechanical. Yet, the Advisory Board has ipse dixit accepted the said Report. Recently, this High Court in the case of Pappu Khan v. State of Rajasthan and Ors. (D. B. Civil Writ Petition No. 6207/05, decided on 30-9-05) has held that the Advisory Board is not to mechanically accept the adverse Police Report and to deny the parole on such a report. Despite the existence of the judicial decisions, the Advisory Board continues to flout them. Such a disregard for judicial pronouncement is a matter for grave concern. The Executive cannot afford the luxury of ignoring judicial decisions. They are as much bound by these interpretations of law, as is the public at large. It is hoped that the Advisory Board would keep the judicial interpretations and principles in mind in the future.
11. Interestingly, there is conflict of finding between the Police Report and the Report of the Social Welfare Officer. According to the Police Report, the Petitioner is unmarried. According to the Report of the Social Welfare Officer, the Petitioner has wife and children. Surprising, the Advisory Board has accepted both the Reports without appreciating the glaring contradiction contained in them. Thus, the Advisory Board has not applied its mind judiciously while concluding that the Petitioner should be denied parole. Hence, the impugned order suffers from the vires of non-application of mind. Therefore, the impugned order is perverse.
12. Concerning the conduct of a prisoner in jail, Rule 9 requires that his conduct should be "good" in the jail. Mr. Sahni has argued that the conduct till the passing of the Order by the Advisory Board should be considered. But, we are of the firm opinion that the conduct of the prisoner till the passing of the Judgment by the Court has to be examined. For, the judiciary has to balance the interest of the individual with the interest of the society at large. The Courts cannot let loose a person who could pose a threat to the law and order or to the peace in the society. However, the conduct must be of such a grave nature as to warrant the denial of parole. Parole should not be denied for a minor misconduct. In the present case, on 4-6-05, allegedly the Petitioner was involved in a fray in the jail. This fact has been recorded in his History Ticket. Yet, he was not punished with a jail punishment. Thus, obviously, his misconduct was not a grave one but was only a minor one. Hence, the parole cannot be denied on the ground of a slight infraction of proper conduct.
13. While denying parole, a holistic view about the philosophy of parole, about the jail conditions, about the problems of prison administration have to be kept in mind. Repeatedly, the Hon'ble Supreme Court has held that the purpose of Parole is three-fold : firstly, the use of parole as a motivational force for reforming the prisoners. Secondly, to keep the family ties intact as the family ties are likely to be broken because of the long periods of incarcerations. Thirdly, to slowly draw the misled soul back into the folds of the society. Since punishment should be more reformative and less retributive, the role of parole as a reformative measure has to be acknowledged. By denying parole at the drop of a hat is to ignore the importance of Parole in the jail administration. It is precisely for these reasons that the Hon'ble Supreme Court in the case of Inder Singh v. The State (Delhi Administration) has emphasized the need for liberal use of parole even in the case of heinous crimes. In the case of Maru Ram v. Union of India, while upholding the constitutional validity of S. 433-A of Cr. P. C., a provision of law which debars the release of heinous criminals before the completion of fourteen years of incarcerations, even in their case, the Supreme Court has encouraged the jail administration to liberally use the parole system. Aware of the problem of over-crowding in the jails, considering the pitiable conditions of our jails, in the case of Rama Murthy v. State of Karnataka, their Lordships of the Apex Court again reiterated the need for giving the benefit of parole to a large numbers of convicted prisoners. But notwithstanding these pronouncements of the Hon'ble Supreme Court, the Advisory Board continues to be a miser in granting parole to the deserving prisoners. It would be in the interest of the jail administration, in the interest of the judiciary, in the interest of the society if parole were liberally granted.
14. Consequently, we allow this writ petition. The Petitioner is entitled to parole by virtue of Rule 9 of the Parole Rules. We direct the respondent to release the petitioner. Budhi s/o Shri Gopal, on parole for a period of 20 days. He shall be released on parole on his furnishing bail bond to the satisfaction of the Superintendent of Jail, Bharatpur before whom the Petitioner shall surrender after expiry of the Parole period. We make it clear that 20 days of parole shall be counted from the date the Petitioner is actually released from the Jail.