Rajasthan High Court - Jodhpur
Ravindra Singh @ Dholiya vs State (Home) & Ors on 24 January, 2012
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
D.B. Cr Parole Writ Petition No.351/2012
Ravindra Singh @ Dholiya v. State of Raj. & ors
1
D.B. Criminal Parole Writ Petition No.351/2012
Ravindra Singh @ Dholiya v. State of Raj. & ors
Date of Order: 24th January 2012
HON'BLE MR JUSTICE DINESH MAHESHWARI
HON'BLE MR JUSTICE NARENDRA KUMAR JAIN-II Mr.Sukesh Bhati for the petitioner Mr.K.R.Bishnoi, Addl. Government Counsel This petition with the prayer for grant of emergent parole to the convict prisoner Ravindra Singh @ Dholiya son of Prabhu Singh has been filed by the prisoner's brother Kapindra Singh.
It is submitted that on 10.01.2012, the prisoner's grand mother has expired and for performing the necessary ceremonies, the presence of the convict prisoner is requisite.
It is further submitted in this petition that the convict prisoner has been granted the benefits of parole thrice and he has never misused the liberty and surrendered within the time prescribed. It is yet further submitted that when the prisoner's brother approached the jail authorities for release of his brother on emergency parole, he was informed that the powers of the Superintendent of Jail to grant emergency parole have been taken away under an order dated 23.06.2011 (Annex.3) and have been given to the Director General at Jaipur; and in such circumstances, this petition was required to be filed.
The learned counsel appearing on behalf of the petitioner in this matter has argued that the conduct of the petitioner in jail being satisfactory and he having never misused the liberty earlier granted, his case deserves to be considered for granting emergent parole on the ground of demise of his grand mother when his presence for performance of necessary ceremonies is requisite. The learned D.B. Cr Parole Writ Petition No.351/2012 Ravindra Singh @ Dholiya v. State of Raj. & ors 2 counsel further submitted that the order dated 23.06.2011 (Annex.3) cannot operate contrary to the provisions of the Rajasthan Prisoners Release on Parole Rules, 1958 ('the Rules'). The learned counsel has referred to the decision of the Hon'ble Supreme Court in the case of Inder Sinigh & Anr. Vs. The State (Delhi Administration): (1978) 4 SCC 161, and those of this Court in Budhi Vs. State of Rajasthan & Anr.:
2006 (1) WLC 27 and Guru Bux Singh @ Bakshi Singh Vs. State of Rajasthan & Anr.: 2008 (3) RLW 2399.
The respondents have filed a reply contesting the writ petition and, inter alia, it is submitted that under Rule 10A of the Rules, the prisoner cannot be granted emergent parole on the ground of death of his grand mother.
Having given a thoughtful consideration to the rival submissions with reference to the facts of the case and the law applicable, we are clearly of opinion that the prayer as made on behalf of the prisoner for release of emergent parole deserves to be declined.
Rule 10A of the Rules reads as under:-
"10A.(i) Notwithstanding the provisions of rules 3,4,5,9 and 10, in emergent cases, involving humanitarian consideration viz. (1) critical condition of account of illness of any close relations i.e. father, mother, wife, husband, children, brother or un-married sister; (2) death of any such close relation; and (3) serious damage to life or property from any natural calamity.
(4) Marriage of a Prisoner, his/her son or daughter or his/her brothers/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.
(ii) A copy of the order for release of prisoners on parole shall be endorsed to the next higher authority giving full circumstances under which the parole has been allowed.
D.B. Cr Parole Writ Petition No.351/2012 Ravindra Singh @ Dholiya v. State of Raj. & ors 3 In case the next higher authority does not approve the grant of parole, he may ask the authority granting the parole to revoke the same who shall act accordingly."
It is, at once, clear that under the said Rule, emergent parole could be granted in emergent cases involving humanitarian considerations when there is critical condition on account of illness of any close relation. Such close relations have been specified in the Rules as father, mother, wife, husband, children, brother or unmarried sister. Emergent parole could also be considered in the case of death of any such close relation. Apparent it is that grand mother is not specified in the said Rule as 'such close relation' for whom the case could be considered of emergent nature for grant of emergent parole. This apart, during the course of submissions, we have specifically put the learned counsel for the petitioner to the question if the father of the prisoner is available to which the learned counsel answered in the affirmative. The scenario available is that father of the prisoner is available who is son of the deceased, grand mother of the prisoner; and then, a brother of the prisoner is also available who has filed this writ petition. Thus, it cannot be said that essential ceremonies cannot be performed in the absence of the prisoner. It is also noticed that the prisoner has, otherwise, been allowed the regular paroles and in the last, he had been on third general parole from 25.10.2011 to 03.12.2011.
The decisions as relied upon by the learned counsel for the petitioner either on the general principles relating to parole or on specific factual aspects have no application to the present case. The decision in Guru Bux Singh (supra) about invalidity of the rule for having not been laid before the State Legislature too has no relevance to the present case.
D.B. Cr Parole Writ Petition No.351/2012 Ravindra Singh @ Dholiya v. State of Raj. & ors 4 In the overall circumstances, we do not find it to be a case for grant of emergent parole. The prayer as made by the petitioner is hereby declined. However, it is observed in the interest of justice that if the prisoner seeks attending the bereaved family for a while, he may be allowed such visit in custody, if any application is made by him in that regard.
One aspect of the matter relating to the order dated 23.06.2011 appears calling for comments. Rule 10A of the Rules has been reproduced hereinabove and it is but apparent that in the said Rule, the power and authority is vested in the Superintendent of Jail concerned for grant of parole for 7 days. The State Government in its Home Department has proceeded to issue the said questioned order dated 23.06.2011 that reads as under:-
"र जस न प जनर ररल ज आन पर ल रलर, 1958 क ननयम 10 (ए) क अन र 1. ककर ब"द क नजद क$ ररश द र य म -पप , पन -पत', बच), भ ई एव" अपवव ह. ब.न क र"भ र रप र ब म र . न 2. ऐर नजद क$ ररश द र क$ मत0 य2 3. क0न क आपद र जन-धन क र"भ र न2कर न 4. ब"द क$ सवय" क$, उरक प2त अ व प2त क पवव . ब"द क म -पप ज पव न . न क$ सस न म7 ब"द क भ ई ब.न क पवव . पर, ककर ब"द क 7 हदवर क आकससमक पर ल पर रर. करन . 2 अध कक क र र र धधक0 . ।
र जय ररक र क धय न म7 आय . कक अध कक क र र र द र
ननयम> क पररपकय म7 आप पर ल क करण> म7 पAर थय> क$ प2पC
करव य बबन एव" इन पर र"भ र र पय प पव) र ककय बबन . ब"हदय>
क आकससमक पर ल सव क0 कर हदय ज .G, सजरर ननयम> क$
य ध) प लन म7 क यव . न. " . प । अ : य. ननणय तलय रय
. कक अधHम आदश> क अध कक क र र र क स र र ब"हदय> क आप
पर ल सव क0 न. " ककय ज व आप पर ल क आवदन तपर र
म. ननदशक एव" म. ननर कक क र र र / र"ब"धध सजल मसजसJट क
ननस रण . 2 तभजव य ज व ।"
We are, prima facie,of the view that when the statutory Rules provide for a specific power with the specific authority, the State Government could hardly be considered having a power to put at naught such a power by an executive order. Prima facie, we are unable to find such power with the State Government under the Rules D.B. Cr Parole Writ Petition No.351/2012 Ravindra Singh @ Dholiya v. State of Raj. & ors 5 that any power under the Rules with an authority could be taken away in this manner. It appears that the State Government while issuing the said order had itself been conscious of the position that any such proposition would require requisite amendment in the Rules as is clear from the endorsement made in the said order to the Director General of Prison that reads as under:-
"1. म. ननदशक क र र र, र जस न, जयप2र क उनक पत 5068 हदन "क 26.05.2011 क कम म7 पM कर लख . कक र जस न प जनर ररल ज आन पर ल रलर, 1958 म7 र"श धन> क पAण एव" सपC स व तभजव न क शम कर ।"
It has not been brought on record if any amendment has been made in the Rules. We make it clear that as this petition is, otherwise, being dismissed on merits, we are not interfering with the said order dated 23.06.2011 in this petition but it shall be expected of the authorities concerned to examine the Rules and the observations made herein and to take appropriate decision in regard to the questioned order dated 23.06.2011.
The petition is dismissed with the observations aforesaid. (NARENDRA KUMAR JAIN-II),J. (DINESH MAHESHWARI),J. MK