Rajasthan High Court - Jaipur
Asha Alias Ashanand vs State Of Raj & Ors on 28 September, 2010
Author: Dalip Singh
Bench: Dalip Singh
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR
O R D E R
D.B. Civil Writ Petition (Parole) No.6068 of 2010.
Asha @ Ashanand son of Shri Miyanmal through his wife Smt. Nirmala
VERSUS
State of Rajasthan and Others
Date of Order :::: 28.09.2010.
P R E S E N T
Hon'ble Mr. Justice Dalip Singh
Hon'ble Mr. Justice S.S. Kothari
Mr. Sumer Singh, Counsel for the Petitioner.
Mrs. Rekha Madnani, Dy.Govt. Counsel for the respondents
****
By the Court :
This writ petition has been filed on behalf of prisoner viz., Asha @ Ashanand son of Shri Miyanmal by caste Sindhi resident of Surajpole, Police Station Kaithunipole District Kota (at present confined in Open Jail, Kota) through his wife - Smt. Nirmala for release of the petitioner Asha @ Ashanand on permanent parole.
Facts, in brief as stated in the petition are that the prisoner-petitioner Asha @ Ashanand was convicted for commission of the offence under Sections 302 and 302/34 I.P.C. and was sentenced initially to death, which sentence was converted into life imprisonment on appeal by the High Court while maintaining the conviction.
As per the reply and the documents, Annexure-R/1 being the nominal roll of the petitioner-Asha @ Ashanand from Jail Superintendent, Kota it reveals that as on 8th July, 2010 the prisoner had, in fact, completed 20-years-8-months-&-21-days, including period of remission.
It has also been stated in the nominal roll that the prisoner has previously been released on first parole for the period from 19.01.2001 to 17.02.2001 and again remained on emergent parole from 29.08.2001 to 04.09.2001, he was again released on emergent parole from 06.09.2001 to 12.09.2001. He was released on second parole from 14.06.2002 to 13.07.2002 for 30-days and was released on emergent parole from 22.04.2003 to 06.05.2003 and again released on emergent parole from 28.05.2003 to 11.06.2003, he was on emergent parole for the period 27.08.2003 to 10.09.2003 also the petitioner remained on 3rd regular parole for the period from 09.10.2003 to 17.11.2003. He was again released on annual parole from 10.06.2006 to 19.07.2006, 25.10.2007 to 03.12.2007 and 09.10.2009 to 17.11.2009 respectively.
As per the nominal roll his conduct in jail has been found to be satisfactory and his mental and physical state is said to be normal. He has not been awarded any punishment in jail.
It has also been brought to our notice that looking to the eligibility of the petitionerAsha @ Ashanand, he was transferred by the concerned authorities to the Open Air Jail, Kota wherein he is presently lodged in accordance with the Rajasthan Open Air Camp Rules, 1972.
From the above, it is apparent that the petitioner does not suffer from any of the eligibilities mentioned in Rule 3 of the Rajasthan Prisoners Open Air Camp Rules, 1972.
Rule 3 of the said Rules reads as follows :
3. Ineligibility for admission to open air camp.- The following classes of prisoners shall ordinarily be not eligible for being sent to Open Camp :-
(a) Prisoners whose ordinary place of residence is outside the State of Rajasthan or who have been convicted by a Court Martial.
(b) Prisoners convicted under the Explosive Substances Act, 1908.
(c) Persons who have escaped from the jails or who have attempted to escape from a lawful custody.
(d) Prisoners who have been convicted of an offence or offences under Sections 121 to 130, 216-A, 224, 225, 231, 232, 303, 311, 328, 332, 333, 376, 377, 383, 392 to 402, 435 to 440 and 460 of the Indian Penal Code (Act XLV of 1860).
(e) Prisoners who have been sentenced to less than five years imprisonment.
(f) Prisoners who are habitual with more than two previous convictions of imprisonment to their credit.
(g) Prisoners whose conduct in the jail is not good provided that a prisoner who would have not received any jail punishment for two years preceding the date of the recommendations of his name for admission to the Open Camp may be considered eligible.
(h) Prisoners who are below 25 years of age and above 60 years of age.
(i) Prisoners who are lunatic or have mental deficiency or are physically incapacitated.
(j) Prisoners who have no fixed abode in Rajasthan.
(k) Detenues and civil prisoners.
(I) Prisoners convicted for vagrancy.
(m) Prisoners who are unmarried.
At the same time, it may also be mentioned that the eligibility for admission to Open Air Camp has been prescribed under Rule 4, which reads as follows :
4. Eligibility for admission to Open Camps.- A prisoner shall be eligible for admission to an Open Air Camp, if --
(a) He does not fall within any of the categories specified in rule 3 above.
(b) He has been regularly performing his Scheduled task in the jail Factory or in Jail Service.
(c) He has served one third term of his substantive sentence including remission.
As per Rule 6 of the aforesaid Rules, the Inspector General of Prisons (Director General of Police) after going through the recommendations of the Superintendent of the Jail recommends the case for transfer of the prisoner to the Open Air Camp after receiving the report from the Superintendent concerned keeping in view the aforesaid factors regarding eligibility and ineligibility of the prisoner concerned.
As per the respondents while rejecting the application vide order dated 31.03.2010, Annexure-1 for being released on permanent parole the reasons given are as follows :
20. ??.??. ??? ???? ??????? ????? ??????? ????-?????? ??????-??????? ????? ????-????????? ????-???? (??.??.??.????) ???? ????? ???????, ???? ??? ?? ????? ?????? ???? ?? ???????? ????? ?? ??? ?? ????? ???? ??? ??? ?????? ??? ???? ?? ???? ?? ???? ???? ?? ???????? ??? ?????? ????? ?? ???? ???? ???? ???? ????? ??, ????? ???? ???? ??? ???? ??????????, ???? ?? ?? ?????? ?? ?????? ????? ?? ???? ???? ???? ???? ????? ??? ??: ???? ???????????? ??????? ?? ???????? ???? ??? ?? ????? ?? ?????? ????? ?? ???? ???? ???? ???? ???? ????"
To support the aforesaid orders the respondents along with their reply have placed on record Annexure R/2, the report of the District Magistrate, Kota.
The report of the District Magistrate dated 18.01.2010 Annexure R/2 reads as follows :
"??????? ???????????? ????????? ???? ?? ?????? ??? ?????? ????? ??? ???? ????? ??????? ????-?????? ??????-??????? ????-????????? ????-???? ?? ?????? ????? ?? ???? ???? ???? ?? ??????? ??? ?? ???????? ?? ????? ???? ???? ????? ?? ?????? ????? ?? ???? ???? ???? ?? ??????? ??? ????? ???????, ??? ???? ??? ????????, ??????? ??? ????? ????????? ?????, ???? ?? ???? ?????? ???? ??????? ??????? ?? ?????? ????? ?????? ????????? ?? ????? ?? ???? ????? ?? ??? ??, ????? ????? ?? ????? ??????? ?? ??? ??? ??? ???? ????????? ????? ??? ???? ???? ??? ??? ??????? ??? ?? ????? ??? ??? ????? ?????? ????? ?? ????? ?? ??? ?? ?????? ?? ???? ??? ????? ????? ??? ????? ?? ??? ??? ????? ???? ????????? ?? ??.??. ??? ????? ??????? ??? ???? ??? ??? ?? ?? ??? ?? ?? ?? ???? ??? ???? ?? ??? ??? ?? ????? ??? ??? ????? ?? ???? ??? ???? ?? ?????? ?? ????? ?? ??? ?? ????? ???? ????
??: ????? ??????? ????? ??????? ????-?????? ??????-??????? ????-????????? ????-???? ?? ??????? ??????? ?? ???? ?? ????? ????? ?? ???? ???? ???? ???? ???? ???"
Report of the Superintendent of Police, Kota City on which reliance is placed in the report of the District Magistrate dated 19th November, 2009 is as follows :
"???????????? ????????? ???? ?? ?????? ??? ?????? ?? ?? ????? ??????? ????? ??????? ????-?????? ??????-??????? ????-????????? ????-???? ??? ??? ?????? ????? ?? ?????? ?? ??????? ??? ???? ??????????, ???-????? ??? ?????????? ????-????????? ????-???? ??? ?? ????? ???? ???? ??????? ????? ?????? ??:
1.????? ?? ??? ????? ?????? ????????? ?? ????? ?? ???? ????? ?? ??? ??, ????? ????? ?? ????? ??????? ?? ??? ??? ???
2. ????? ?? ????? ?? ??? ?? ?????? ???????? ?? ????
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???? ????????? ????? ??? ???? ???? ??? ??? ??????? ??? ?? ????? ??? ??? ????? ?????? ????? ?? ????? ?? ??? ?? ?????? ?? ???? ???
3.???? ????? ????? ??? ????? ?? ????? ????? ??? ????? ?? ??? ???
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4. ????? ?? ??????? ????????? ????? ????-????????? ?? ??.??. ??, ????? ??????? ??????? ?????? ???
????? ??????? ??? ???? ??? ??? ??? ?? ??? ??? ?? ?? ???? ??? ???? ?? ??? ???? ?? ???? ??? ??? ????? ?? ???? ??? ???? ?? ???????? ????? ?? ??? ?? ????? ???? ???? ????????? ????? ??? ???? ???? ??? ??? ??: ?????????? ????-????????? ? ?????????? ???-????? ????-???? ??? ?? ???? ?? ???? ?? ????? ?? ?????? ????? ????? ?? ????? ???? ???? ???? ???
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On the basis of the above, while submitting the reply the respondents have supported the order Annexure-1 and have contended that since there is an adverse report of the Superintendent of Police as well as District Magistrate, which are both adverse, the petitioner ought not to be released on permanent parole.
We have considered the material on record and we are of the view that in the present case the reasons given by both the Superintendent of Police, Kota as well as by the District Magistrate, which prevailed ..upon the authorities for rejecting the application of the petitioner for being released on permanent parole do not hold good.
In the facts and circumstances of the present case, it is not in dispute that the petitioner has been released on regular 1st, 2nd and 3rd parole for 20, 30 and 40-days respectively as well as on emergent parole on several occasions, as has been stated above.
It is not the case of the respondents i.e. the Superintendent of Police in his report that the petitioner while being released on parole on any of these occasions has misused the liberty granted to him or has committed any act, which would disentitle him being released on parole. The aforesaid period of parole were spread over a period of nine-years from January 2001 to November 2009 and his conduct in jail has also been found to be satisfactory as per nominal roll issued by the Superintendent of Jail, Kota.
Admittedly, the petitioner was found eligible in terms of Rule 3 and 4 of the Rajasthan Open Air Camp Rules, 1972 and transferred to the Open Air Camp at Kota, which is the place of residence of the petitioner, as he is a resident of Surajpole, Kota and in accordance with the provisions of the Rajasthan Open Air Camp Rules, 1972 he has been earning his livelihood during the day and returning to the camp premises every evening as per the requirement. During the period while he has been in the Open Air Camp his conduct has been found to be satisfactory and nothing adverse has been reported.
The basis for rejection of his application that there is a threat to the life of the petitioner on account of the pending dispute with regard to the property, which led to the murder also does not find any jurisdiction as the petitioner has been in the Open Air Camp at Kota since 2004.
In the facts and circumstances of this case as the petitioner has been enjoying the benefit of the Open Air Camp in Kota itself since 16.04.2004 as he was transferred to the Open Air Camp the ground of threat to life of the petitioner also does not find support from the record.
The fact that he was reportedly a history-sheeter is also not of much importance nods that too pertains to a period more than two-years ago and keeping in view the intention of reformation of the prisoners lodged in Jail the reasons given, by the Committee based upon the reports of the District Magistrate and the Superintendent of Police, Kota in the facts and circumstances of this case can not be justified based upon the material on record and while passing the order of rejection the basic principles, which we have enumerated above in the facts and circumstances of the present case were ignored by the authorities.
In the result, we would set aside the order dated 31.03.2010, Annexure-1 passed by the respondents qua the petitioner in Para No.20 of the said order and direct the respondents to reconsider the case of the petitioner afresh in the light of observations made here-in-above for release on permanent parole. The petitioner need not to submit any fresh application for being released on permanent parole. The respondent would consider the case of the petitioner within a period of 30-days from today and/or from receipt of the certified copy of this order by the authorities concerned.
Let, a copy of this order be sent to the respondents immediately for necessary action.
The writ petition stands allowed as aforesaid.
(S.S. Kothari) J. (Dalip Singh) J. Ashok/