Rajasthan High Court - Jaipur
Rahul S/O Shri Vishambhar @ Kalwa vs State Of Rajasthan on 14 October, 2022
Bench: Sandeep Mehta, Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Writ Petition No. 428/2022
Rahul S/o Shri Vishambhar @ Kalwa, Aged About 22 Years, R/o
Village Hanipur, Police Station And Tehsil Kathumar, Distt. Alwar
(Raj.) ( At Present In Central Jail Alwar) Through His Wife Brijesh
Devi W/o Rahul, Aged About 25 Years, R/o Village Hanipur, Police
Station And Tehsil Kathumar, District Alwar (Raj.) 321605
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary Home,
Secretariat, Jaipur.
2. The District Magistrate, Alwar.
3. Superintendent Central Jail, Alwar
----Respondents
For Petitioner(s) : Mr. Vishram Prajapati, Adv. For Respondent(s) : Mr. Javed Choudhary, AGA HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE SAMEER JAIN Order 14/10/2022
1. The instant writ petition is filed by convict-prisoner Rahul through his wife Smt. Brijesh Devi seeking emergent parole on ground of want of progeny under Rule 11 of the Rajasthan Prisons (Release On Parole) Rules, 2021 read with Article 14 and 21 of the Constitution of India. Petitioner was convicted for the offence under Sections 363, 366 and 376 (3) of IPC and 3/4(2) of POCSO Act and sentenced to 20 years imprisonment vide order dated 13.06.2022 in Sessions Case No. 29/2021.
2. It is submitted that the petitioner has served more than two years of imprisonment with remission. The petition has been (Downloaded on 18/10/2022 at 12:15:13 AM) (2 of 4) [CRLW-428/2022] filed through petitioner's wife for releasing him on emergent parole, for want of progeny and conceiving child for the purpose of preservation of lineage, as per religious and cultural philosophies and for humanitarian aspects. The conduct of the petitioner is satisfactory and if not allowed to be released or parole, his rights under Article 14 and 21 of the Constitution of India, will be affected. Learned counsel has relied upon the Division Bench judgment of Nand Lal Vs. State & Ors.: DB. Cri. Writ Petition No. 10/2022, which has been upheld by the Hon'ble Apex Court, wherein the Division Bench of this Court observed that:-
"The court had ruled that the "right to procreation survives during incarceration" and "is traceable and squarely falls within the ambit of Article 21 of our Constitution". It had then directed the Punjab government to constitute a Jail Reforms Committee, to be headed by a former high court judge. Among other things, this committee was to "formulate a scheme for creation of an environment for conjugal and family visits for jail inmates and identify the categories of inmates entitled to such visits, keeping in mind the beneficial nature and reformatory goals of such facilities".
In view of the fact that the spouse of the prisoner is innocent and her sexual and emotional needs associated with marital lives are effected and in order to protect the same, the prisoner ought to have been awarded cohabitation period with his spouse. Thus, viewing from any angle, it can safely be concluded that the right or wish to have progeny is available to a prisoner as well subject to the peculiar facts and circumstances of each case. Simultaneously, it is also found apposite to hold that the spouse of the convict-prisoner cannot be deprived of his or her right to get progeny.
As an upshot of the observations made herein above, we are of the considered view that though there is no express provision in the Rajasthan Prisoners Release On Parole Rules, 2021 for releasing the prisoner on parole on the (Downloaded on 18/10/2022 at 12:15:13 AM) (3 of 4) [CRLW-428/2022] ground of his wife to have progeny; yet considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranted by the Constitution of India and while exercising extra ordinary power vested in it, this Court deem it just and proper to allow the instant writ petition."
3. Per contra, counsel for the State has opposed the present petition and submitted that the present petitioner was convicted under POCSO Act for offences that are grievous in nature. Learned counsel contends that if the petitioner is released on parole, it would adversely affect the society and there is a possibility of conflict/quarrel between the petitioner and the complainant. Learned counsel further submitted that in Rajasthan Prisons (Release On Parole) Rules, 2021, there is no provision for releasing the petitioner on emergent parole on the ground of want of progeny.
4. Heard the arguments advanced by both the sides and scanned the record of the writ petition.
5. The Division Bench of this court, in Nand Lal (supra), has already dealt with the issue involved in the present petition and held that right or wish to have progeny is available to a prisoner. In the case in hand, considering the peculiar fact that petition is filed by the young wife of the convict, who is issueless and is desirous of retaining/maintaining her marriage with the convict who is incarcerated for a long period of time; considering that petition is filed for having progeny for purpose of preservation of lineage and considering the young age of the convict-petitioner and also relying upon the case of Nand Lal (supra), this Court is inclined to allow the present writ petition and release the convict- petitioner on emergent parole for fifteen days. (Downloaded on 18/10/2022 at 12:15:13 AM)
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6. Accordingly, the instant writ petition is allowed. The
convict-petitioner Rahul S/o Shri Vishambhar @ Kalwa shall be released on emergent parole for a period of fifteen days provided he furnishes a personal bond in the sum of Rs. 2,00,000/- along with two surety bonds of Rs. 1,00,000/- each to the satisfaction of the Superintendent, Central Jail, Alwar on usual terms and conditions. The Superintendent, Central Jail, Alwar shall be at liberty to impose other adequate and reasonable conditions to ensure return of the covict-petitioner to the custody after availing the parole. His term of parole shall be computed from the date of his actual release.
7. The parole writ petition is allowed, accordingly.
(SAMEER JAIN),J (SANDEEP MEHTA),J
Pooja /40
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