Rajasthan High Court - Jaipur
Ganga Devi vs . State & Anr. on 9 April, 2014
Author: Ajay Rastogi
Bench: Ajay Rastogi
In The High Court of Judicature for Rajasthan Jaipur Bench, Jaipur O R D E R D.B. Civil Writ Petition (Parole) No.3026/2014 Ganga Devi Vs. State & anr. Date of Order : 09.04.2014 Hon'ble Mr. Justice Ajay Rastogi Hon'ble Mr.Justice J.K. Ranka Mr. Lakhan Singh Tomar, for petitioner. Mr. Rishi Raj Singh, Dy. Govt. Counsel, for respondents. BY THE COURT (Per Hon'ble Ranka, J.)
1. Instant petition has been filed by the convict-petitioner (Ganga Devi) through her son (Suresh Lal) seeking permanent parole under Rule 9 of the Rajasthan Prisoners Release on Parole Rules, 1958 (for short, the Rules of 1958).
2. The convict-petitioner is presently confined in Central Women Jail, Jaipur and serving sentence of life imprisonment upon being convicted u/s 302/34, 201 IPC and sentenced to life imprisonment by the court of Additional District Judge, Nimbhaheda vide judgment and order dt. 16/05/2003 passed in Sessions Case No.65/1999.
3. Admittedly, the convict-petitioner is in judicial custody since 06/09/1999 and has remained in judicial custody for more than 14 years of her sentence. The convict-petitioner is presently aged about 79 years and is an old aged lady.
4. Counsel for the convict-petitioner submitted that the convict petitioner has already served more than 14 years of imprisonment and being an old aged lady, deserves to be granted indulgence of permanent parole. He contended that under Rule 9 of the Rules of 1958, an accused can be granted benefit of permanent parole on certain grounds/conditions and the convict-petitioner, being a lady and particularly aged about 79 years, needs indulgence of this Court for granting her benefit of permanent parole. Counsel contended that the convict-petitioner cannot be denied the benefit of permanent parole only on the ground that during the last more than 14 years she has not availed of any parole. Counsel further contended that the conduct of the convict-petitioner in jail has been satisfactory & good and there is no reason in not granting permanent parole to the convict-petitioner. He contended that the District Magistrate, Chhitorgarh has given adverse report by simply observing that there is dispute between the parties relating to the land matter and it may affect the peaceful atmosphere. Counsel submitted that this cannot be a reason at all for not granting benefit of permanent parole to the convict-petitioner, more particularly, when the convict-petitioner now is an infirm lady aged about 79 years and is not even in a position to maintain herself properly. He further contended that the Superintendent of Police, Chittorgarh has also made the same observations as have been made by the District Magistrate, Chhitorgarh, however, the Social Welfare Department, Chittorgarh in its report dt. 17/08/2013 (Anx. R/5) has recommended for grant of permanent parole to the convict- petitioner. Counsel further contended that in the light of the above facts and circumstances, the convict petitioner deserves benefit of permanent parole so that she may come in the main stream and that she must be given indulgence of permanent parole so that she can be taken care of by her family members now at least for some time as she may not be in a position to live long life because of her old age and being infirm.
5. Counsel for the respondents objected to grant of permanent parole and contended that from the reports of the concerned District Magistrate and Superintendent of Police, it is seen that some dispute regarding land is going on between the convict petitioner with her family members on account of which it may aggravate and there is possibility of further quarrel between the convict-petitioner and her family members and it may affect peaceful atmosphere. Counsel for the respondents, however, admitted that the Social Welfare Department has recommended for grant of permanent parole to the convict petitioner but at the same time submitted that the reports of the concerned District Magistrate and Superintendent of Police are more important in such matters rather than the report of the Social Welfare Department. It was, however, admitted that the conduct of the convict-petitioner in Jail as per nominal role has been satisfactory.
6. We have considered the arguments advanced by counsel for the parties and gone through the material available on record.
7. It would be fruitful to quote Rule 9 of the Rules of 1958 which is reproduced ad-infra:-
RULE 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 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 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.
8. On perusal of the above rule, it is abundantly clear that a prisoner, who has completed with remission, if any, (one fourth) of his sentence and subject to his behaviour and conduct in Jail has been found good, is entitled to release on parole, however, the aforesaid Rule further provides that the accused may be released on first parole for 20 days including days of journey to home and back, and for 30 days on second parole provided his behavoiur has been good during first parole and for 40 days on third parole provided his behaviour has been good during the second parole. If during 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 above Rule categorically states about his/her behaviour at the time of seeking of parole but the present case is one where the convict-petitioner has not at all availed any of the paroles during her incarceration of more than 14 years and merely because she has not availed of any parole, cannot be a good reason or ground for depriving her of the indulgence of permanent parole. In not availing of any parole earlier by her, there is possibility that she may not be aware of it or not made known of such fact and lawand merely because she has not availed of any parole earlier, in our view, one cannot be deprived to seek permanent parole.
9. The object of granting permanent parole is to make concentrated efforts to rehabilitate the convicts and the underline principle is that the criminals are not born but made because of several factors including socio economic, political and even cultural. The Hon'ble Supreme Court, time and again, has held that the purpose of parole is three fold: (i) the use of parole as a motivational force for reforming the prisoners; (ii)to keep the family ties intact as the family ties are likely to be broken because of long periods of incarceration and (iii) to slowly draw the misled soul back into the folds of the society. 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. The parole though is a creation of rules but essentially is a right attached to the prisoner automatically for the reason that every prisoner is a part of the society and the society, being a larger agency to watch welfare of its every member, is under obligation to make all necessary efforts to bring the convicts in main stream of the society through their rehabilitation. Therefore, the parole is a mode to make efforts to rehabilitate the convicts and it is not a concession but a human right.
10. Accordingly, a mechanism of parole was created even for the life term prisoners and this was primarily done with a view to get even the convict of a serious/heinous offence to come in the main stream of the society on washing his sin by remaining behind the bars for substantial period. Even a convict is not supposed to remain imprisoned for an indefinite period though he may have committed serious offence as well. Even the long term convicts are entitled to spend rest of the sentence outside the prison after facing substantial part thereof and while granting permanent parole, the most important factor, which is required to be seen, is the over all attitude of the convict while in the jail. Once the jail authorities do confirm that the overall performance of the convict is peaceful and satisfactory by an large, there is no harm in granting parole in such matters. Though the authorities will always keep in mind that once a convict is always a convict and well coming out he may do such activities again but such assumption is absolutely unwarranted. The Hon'ble Apex Court in the case of Inder Singh and anr. Vs. The State (Delhi Administration): 1978(4)SCC 161, has emphasized the need for liberal use of parole even in the case of heinous crime. Needless to mention that despite of many benefits being available in the jail, the conditions still remain pitiable in our jails and even for this purpose, the Hon'ble Apex Court, in the case of Rama Murthy Vs. State of Karnataka : 1997(2)SCC 642, reiterated the need for giving the benefit of parole to a large number of convicted prisoners.
11. The parole rules were introduced for the reason that after the life, the liberty is most important right of a person and if one is entitled to or can be given liberty even for short period, then such liberty cannot depend upon procedural formalities of moving application and seeking liberty. The concept of parole was introduced for the purpose that the convict may breathe in the open air, meet their family members and come in the main stream and when finally released, may not face any stress. Though Rule 14 of the Rules of 1958 prescribes ineligibility for release and we may reproduce the same ad-infra:-
14. Ineligibility for release-The following classes of prisoners will ordinarily not be eligible for release on parole:-
(a) Persons whose ordinary place of residence is outside the State of Rajasthan or who have been convicted by a Court Martial or a Court of another State;
(b) Persons convicted under the Explosive Substances Act, 1908;
(c) Prisoners who have escaped from the Jail or Police custody or attempted to escape;
(d) persons who have been convicted for offences under Sections 121 to 140, 216A, 302, 303, 311, 328, 332, 364, 386, 387, 388, 389, 392, 393, 394, 395, 396, 397, 399, 400, 401, 402, 413, 455, 458, 459 and 460 of the Indian Penal Code, 1860:
unless they have undergone one fourth of the sentence including remission and the Superintendent of Jail recommends the case in consultation with the District Magistrate with special reasons therefor. In granting parole to prisoners sentences under Section 302 I.P.C. the circumstances of the case under which the murder was committed, such as murder committed for possession of land or over honour of women or as a result of family feuds shall be kept in view and favourably considered for parole.
12. Though the present case, which is being considered, is a case of an convict-petitioner who is facing conviction for offence u/s 302 and ordinarily is ineligibile for granting benefit of parole but the conduct of the convict in the jail has been found to be satisfactory and even the Social Welfare Department has recommended the case of the convict-petitioner for grant of parole.
13. This Court in the case of Kalu Singh Versus State of Rajasthan & Ors. (D.B. Criminal Parole Writ Petition No. 7213/2010 along with 10 identical writ petitions) vide judgment and order dated 06.10.2010, after considering the judgments of the Hon'ble Apex Court and also other judgments of this Court, gave following directions:-
Consequently, all these writ petitions are allowed and it is directed that:
(1) the cases of the petitioners/prisoner who have served requisite period of sentence and are eligible for consideration for release on permanent parole under the provisions of the Rules of 1958, their cases may be considered by the respondents and if they are found eligible for grant of permanent parole, they be released on permanent parole irrespective of the fact whether petitioners have availed the benefit of first, second and third parole or any of above paroles. This order has no application to the cases where any of the parole prayer has been rejected by the competent authority. Such person's prayer for release on permanent parole be considered on its own merit.
(2) In case prayer for permanent parole of any of the petitioners/prisoner is rejected on its merit after taking care of the observations made in this judgment then such petitioner's/prisoner's prayer for release on parole for 40 days, every year, may be considered by the respondents on merit of each case .
(3) The respondents are directed to see that prisoners lodged in jail be made aware about the Rules of 1958 and about their right for release on first, second and third parole.
(4) The respondents are further directed to see that parole prayers may not be rejected on flimsy grounds for which the respondents' competent authority may look into the observations made above in this judgment as well as in earlier judgments delivered by the courts and also should take care that ineligible person may not be released on paroles. The respondents are required to examine each individual case of prisoner and while doing so should look into the judgment/order passed in the case of such individual to find out whether there is any order passed by the court for serving of minimum actual sentence by such prisoner and also look into the fact whether while delivering judgment it has been observed that petitioner should not be released on parole at all.
(5) The respondent-State is directed to give benefit of Rajasthan Prisoner (Shortening of Sentence) Rules, 1958 to the eligible persons whenever the prisoners became eligible for the relief under the Rules of 1958 if after consideration of individual's case, the prisoner is found eligible for grant of benefit under the Rules.
(6) The respondents and in particular the Jail Authorities who are otherwise bound to maintain the record of the prisoner should carefully not only keep the record of the prisoners, but should make appropriate entries in the record of making the prisoners aware of the benefits for which they may be entitled to under the above parole rules and shortening of sentence rules.
(7) The copy of the order may be sent to the Principal Secretary, Home, Government of Rajasthan, Jaipur as well as Director General (Prisoner), who may in turn, issue appropriate instructions to the concerned jail authorities.
14. Additionally, we have noticed herein above, particularly in the present case, that the convict-petitioner is a female and has already been in incarceration for a period of more than 14 years and also aged about 79 years and as per the nominal role sent by the jail authorities, against column 'Medical Health of the accused', it is mentioned that the convict-petitioner is old aged and infirm lady and in such circumstances, we certainly feel that the benefit of permanent parole is required to be granted to her. In our view, a liberal view is to be taken at least in this particular case when admittedly, the convict-petitioner is a woman and is almost touching the age of 80 years and one never knows longevity of life but with her age, at least in this fag end of her life, she needs company of her children and so also grand children if any and spend rest of her life peacefully with them.
15. Consequently, the writ petition stands allowed and order dt.05/02/2014 (Anx.1) qua petitioner is hereby quashed and the respondents are directed to grant permanent parole to the convict-petitioner within a period of three weeks from the date of receipt of copy of this order.
16. A copy of this order may be sent to the Superintendent, Central Women Jail, Jaipur for necessary compliance and it is further made clear that the convict-petitioner will maintain peace and tranquility during permanent parole and shall report at least once on last Sunday of every month at the concerned Police Station. In case of failure, the jail authority shall proceed in accordance with law. No costs.
(J.K. Ranka),J. (Ajay Rastogi),J. Raghu/-Sr.PA/p.14
Certificate:All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed.
/Raghu, Sr. PA.