Rajasthan High Court - Jodhpur
Smt Suman Devi vs State on 19 February, 2019
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Writs No. 430/2018
Smt Suman Devi W/o Shri Gadsiram, Aged About 35 Years, R/o
Bhukarka, Tehsil Nohra, Dist. Hanumangarh.
(Convict/prisoner Hardat Singh S/o Late Shri Mahendra Singh At
Present Open Air Camp Shriganganagar)
----Petitioner
Versus
1. State, Through Secretary, Department Of Home,
Secretariat, Rajasthan, Jaipur.
2. The District Collector, Hanumangarh.
3. The Superintendent, Central Jail, Shriganganagar.
----Respondents
For Petitioner(s) : Mr. Kalu Ram Bhati.
For Respondent(s) : Mr. Farzand Ali, AAG-cum-GA.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Order 19/02/2019 Heard learned counsel for the parties. Perused the material available on record.
The petitioner's brother Hardat Singh son of Shri Mahendra Singh and mother Smt. Santosh Devi were convicted for the offences under Sections 498A and 304B IPC and sentenced to imprisonment for life by the learned Additional District and Sessions Judge, Bhadra, District Hanumangarh vide judgment dated 09.11.2012. The appeal against conviction preferred by the convicts has been dismissed by this Court vide judgment dated 03.10.2018. Having completed more than 8 years of sentence including permissible remissions, the convict Hardat Singh prayed (2 of 6) [CRLW-430/2018] for pre-mature permanent parole under Rule 9 of the Rajasthan Prisoners Release on Parole Rules, 1958 (hereinafter referred to as 'the Rules of 1958"). However, his application for permanent parole was not recommended by the State Government which dismissed the case of the convict vide communication dated 14.09.2018. Accordingly, the petitioner, being the sister of the convict, has approached this Court by way of the instant writ petition seeking to assail the impugned adverse recommendations and praying for a direction to release the convict prisoner on permanent parole for the remainder of his period of sentence by virtue of Rule 9 of the Rules of 1958.
The respondents have filed a reply to the parole writ petition admitting that the work performance and conduct of the prisoner in jail are satisfactory and above board. However, observing that the prisoner has been convicted for the offence of dowry death of his wife within a period of seven years from their marriage and since, the offence comes within the category of a heinous one, the permanent parole application of the prisoner was rightly rejected by the State Government vide recommendations dated 14.09.2018.
During pendency of the parole writ petition, the petitioner filed an additional affidavit mentioning therein that co-convict namely Smt. Santosh Devi, who too was sentenced in the same terms as Hardat Singh, has been granted permanent parole vide recommendations dated 11.01.2019 and thus, Hardat Singh also deserves to be released on permanent parole on parity. A specific averment is made at para (E) of Grounds of the writ petition that cases of various other prisoners who were also convicted for heinous offences under Sections 376 and 304B IPC and sentenced (3 of 6) [CRLW-430/2018] to life imprisonment have been recommended by the State Government for permanent parole while exercising powers under Rule 9 of the Rules of 1958.
This Court directed the learned Additional Advocate General to file a pertinent reply to these assertions made by the petitioner in the writ petition. In response, the respondents have filed a counter affidavit in which, the fact regarding the convicts Parmanand, Rajuram, Balraj, Jai Prakash, Arif, Sandeep Tanwar and Dinesh Kumar, all of whom were convicted for the offence under Section 304B IPC, having been released on permanent parole, has not been disputed and is rather admitted. However, the respondents have tried to explain the situation by mentioning in the counter affidavit that those prisoners had served significantly longer terms of imprisonment as compared to the convict Hardat Singh before their cases were considered and recommended for permanent parole. It is also mentioned regarding the convict prisoner Hardat Singh that he has only undergone imprisonment of 7 years and 1 month and thus, the said short term of stay in the prison has not been considered sufficient so as to entitle him for release on permanent parole.
We have heard and appreciated the submissions advanced at bar and have gone through the statutory provision i.e. Rule 9 of the Rules of 1958 and various orders placed on record.
Rule 9 of the Rules of 1958 is reproduced hereinbelow for the sake of ready reference:-
"9. Parole Period. - A prisoner, who has completed with remission, if any, [onefourth] of his sentence and subject to good conduct in the Jail, may be released on Ist 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 Ist parole and for 40 days on third parole provided his behaviour has been good during the second parole. If during (4 of 6) [CRLW-430/2018] 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 he is not likely to replace into crime, his case may be recommended to the Government through the 3 [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 period 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.
Section 433A of Cr.P.C. postulates that:-
"Restriction on powers of remission or Commutation in certain cases. Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment."
In view of the fact that death sentence is not one of the penalties provided by law for the offence under Section 304B IPC, manifestly, the restriction contained in Section 433A of the Cr.P.C. and the proviso to Rule 9 of the Rules of 1958 would not act to the detriment of the convict Hardat so as to make him ineligible for consideration for grant of permanent parole. The jail authorities (5 of 6) [CRLW-430/2018] have recommended his case for grant of permanent parole noting that his work performance and conduct in Jail is satisfactory. The co-convict Smt. Santosh Devi, who of-course is a woman, has been granted permanent parole by the State Government. The fact mentioned in the additional affidavit that the convict had only served 7 years and 1 month imprisonment till 31.05.2018 and thus, he cannot be considered for grant of permanent parole, does not stand to reasoning because as per Rule 9, referred infra, a convict who has completed with remission, if any, one fourth of his sentence and has availed of first three paroles and his character has been exceedingly well and if he is not likely to relapse in crime, his case can be recommended to the State Government for release on permanent parole. Admittedly, the convict Hardat Singh, has served the required period of sentence and has also availed the first three paroles without a demur. His conduct and work performance are satisfactory. Thus, he has become entitled to be considered for permanent parole in light of the recommendations of the prison authorities as well as the Additional District Magistrate placed on record with the writ petition. The contention of Shri Farzand Ali, learned Additional Advocate General that the convict would have to serve at least 7 years 9 months of sentence before earning entitlement for permanent parole is not relevant because as per the nominal roll (Annexure-2), the convict had suffered total imprisonment of 8 years, 3 months and 6 months (including remission) upto 15.05.2018. Hence, we have no hesitation in holding that the convict Hardat Singh has definitely undergone the requisite term of imprisonment and has also availed of three regular paroles with good behaviour and his character has been exceedingly well (6 of 6) [CRLW-430/2018] during this period making him compliant of the legal requirement of Rule 9 of the Rules of 1958 so as to be considered entitled to release on permanent parole.
In this background, we hereby quash the impugned recommendations dated 14.09.2018 qua the convict prisoner Hardat Singh. We remand the matter back to the State Government who shall objectively reconsider his case for grant of permanent parole under Rule 9 of the Rules of 1958 and pass a reasoned order thereupon within a period of two months from today while keeping in view the observations made above.
The parole writ petition is disposed of in these terms.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J
20-Tikam/-
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