Rajasthan High Court - Jodhpur
Vedhprakash @ Vedhiya vs State Of Rajasthan ... on 19 March, 2024
Bench: Pushpendra Singh Bhati, Rajendra Prakash Soni
[2024:RJ-JD:12958-DB] (1 of 7) [CRLW-1740/2023]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Writ Petition No. 1740/2023
Vedhprakash @ Vedhiya S/o Omprakash, Aged About 41 Years,
At Present Lodged In Open Air Camp Sriganganagar Through His
Father Shri Omprakash So Shri Sonath Age About 60 Years Bc
Kumar Ro House No. 05 Surjeet Singh Colony,p.s. Kotwali,district
Sriganganagar
----Petitioner
Versus
1. State Of Rajasthan, Home Department Jaipur
2. The Director General, (Jail), Jaipur.
3. The District Collector, Sriganganagar
4. The Superintendent, Central Jail, Sriganganagar.
----Respondents
For Petitioner(s) : Mr. Kalu Ram Bhati
For Respondent(s) : Mr. Anil Joshi, GA-cum-AAG assisted
by Mr. Rajat Chapparwal
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Order 19/03/2024
1. Learned counsel for the petitioner submits that his case is of permanent parole as per the Rajasthan Prisoners Release on Parole Rules, 1958, whereby, his application for the release of permanent parole is not being allowed, and the same is pending consideration before State Parole Advisory Committee, Jaipur.
2. Learned counsel for the petitioner admits that by the judgment dated 20.11.2010, the petitioner has been convicted and sentenced for actual life period.
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3. Learned counsel for the petitioner further submits that he is not making submissions for shortening of sentence but submits that the Parole Rules itself provides for a parole, whereby it cannot be said that the petitioner could be released on permanent parole but it could not be said to be shortening of sentence and rather, it would entitle the petitioner to be released on permanent parole after actual custody of about 19 years and custody with remission of about 22 years.
4. Learned counsel for the petitioner has drawn the attention of this Court to the Rules of 'The Rajasthan Prisoners Release on Parole Rules, 1958' & 'The Prisoners (Shortening of Sentences) Rules, 2006' which read as under:-
"The Rajasthan Prisoners Release on Parole Rules, 1958
(d) "Parole" means conditional inlargement of a prisoners from the jail.
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 cases the permanent release on parole is rejected the (Downloaded on 20/03/2024 at 08:40:06 PM) [2024:RJ-JD:12958-DB] (3 of 7) [CRLW-1740/2023] 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 the 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.]
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 Exclusive 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, 322, 364, 386, 387, 388, 389, 392, 393, 394, 395, 396, 397, 398, 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 Superintendent of Jail recommends the case in consultation with the District Magistrate with special reasons therefor. In granting parole to prisoners sentenced u/s. 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 favorably considered for parole.
The Prisoners (Shortening of Sentences) Rules, 2006
(d) "Premature release" means a release of the prisoner without completing his judicially (Downloaded on 20/03/2024 at 08:40:06 PM) [2024:RJ-JD:12958-DB] (4 of 7) [CRLW-1740/2023] ordained sentence as a result of shortening of his sentence.
8. Prisoner's eligibility for consideration by the Advisory Board- (1) The Advisory Board may consider the cases of the following type of prisoners only-
(i) a prisoner undergoing a substantive sentence of five years or over, and who has completed two-third of imprisonment, including remission;
(ii) a prisoner sentenced to imprisonment for life or for more than 14 years, and who has served 2/3rd of his sentence excluding remission or 13 years 4 months of imprisonment including remission, whichever is less. The period of imprisonment shall include sentence in default of payment of fine, if the same has not been paid;
(iii) Prisoners awarded sentences by Court- Martial who have served two-third of their sentences including the period of remissions;
(iv) Prisoners suffering from fatal diseases like cancer, AIDS, or infectious diseases, such as leprosy; provided their disease is likely to be dangerous to other prisoners and conditions prescribed in rule 7 are fulfilled;
(v) Prisoners who are completely blind or handicapped and are wholly dependent on others for their daily routine work;
(vi) Prisoners who have attained the age of 70 years in case of male prisoners and 65 years in case of women prisoners and who have completed at least one-third of their sentence, and in whose case no public interest is likely to be served by keeping them in prison, provided they are serving sentences for their first and only conviction.
(2) Notwithstanding anything in sub-rule (1)-
(i) a prisoner who has been sentenced to imprisonment for life for an offence for which death penalty is one of the punishment provided by law or who has been sentenced to death but this sentence has been commuted under Section 433 of Code of Criminal Procedure, 1973, into one of imprisonment of life, shall be considered only after he has served 14 years of actual imprisonment excluding remission but including the period of detention spent during enquiry, investigation or trial, on the condition that such a prisoner shall also have to earn a minimum of 4 years of remission in order to be eligible for consideration;
(ii) prisoners sentenced to imprisonment for life under Sections 304-B, 376, 396, 467 and (Downloaded on 20/03/2024 at 08:40:06 PM) [2024:RJ-JD:12958-DB] (5 of 7) [CRLW-1740/2023] 489-D of the Indian Penal Code may be considered for premature release only after completion of 14 years of actual imprisonment (with the period undergone during trial), on the condition that such a prisoner shall also have to earn a minimum of 4 years of remission in order to be eligible for consideration.
Explanation- For the purpose of this rule, remission shall mean only that part of the remission which is actually earned by a prisoner in accordance with the provisions of the Jail Manual but shall not include any special remission that may be awarded to prisoners in general to mark the occasion of some events like Independence Day, Republic Day, Centenary Celebrations of National Leaders, visit of some dignitary to Jail, etc.
9. Prisoners not eligible for consideration by the Advisory Board- Notwithstanding anything in these Rules, the Advisory Board shall not consider the cases of following types of prisoners:-
(1) Prisoners convicted of forgery or any offence against the State involving violence;
Explanation:- For this purpose an offence punishable under Sections 466, 468, 469 and Section 471 to 474 of the Indian Penal Code shall be deemed to be a variation of the offence of forgery.
(2) Prisoners convicted of offences punishable under Sections 366, 366A, 366B, 372, 373, 489A, 489B and 489C of Indian Penal Code;
(3) Prisoners who are habitual criminals, meaning thereby having three or more convictions, all of which are of such a nature as to justify their classification as "habitual criminals".
(4) Prisoners detained under any Preventive Detention Law;
(5) Prisoners convicted under Terrorist and Disruptive Activities (Prevention) Act, 1987 (Central Act 28 of 1987);
(6) Prisoners convicted under Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985); and (7) Prisoners convicted under the Prevention of Terrorism Act, 2002 (Central Act 15 of 2002).
10. Procedure- In order that all necessary information might be placed before the Advisory Board, the following procedure shall be adopted-
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(i) The Secretary of the Advisory Board shall collect full particulars regarding each prisoners eligible for consideration by the Board before the date appointed for the meeting of the Board and shall place full accurate details regarding the prisoner's previous history and character, judgment of the sentencing court depicting circumstances in which the offence or offences were committed and sentences were awarded, his prison record together with the report of the District Magistrate and the District Superintendent of Police of the District containing information whether the prisoner is considered fit for premature release etc. before the Board. Any other information required by the Advisory Board shall also be made available from the record of the prison.
(ii) Before coming to a decision in each case whether a prisoner is fit for release without any danger to himself and the community at large, the Advisory Board shall carefully scrutinize and consider the judgment of the Court, reports of the police and the District Magistrate concerned on the conduct and character of the prisoner recommended for release, any conditions to be prescribed in case of release and the prisoner's conduct and behaviour in the prison. Only the prisoner whose conduct has been exemplary in the prison should deserve the consideration of the Advisory Board.
(iii) Report about physical and mental conditions of prisoner fit for release shall be obtained by the Secretary of the Advisory Board from the Medical Officer in-charge of the prison concerned and the same be placed before the Board for consideration for final recommendation is made to the Government.
(iv) The Advisory Board shall then submit its recommendations with full history of each case along with relevant papers in Form-1 to the Government.
(v) In case of a prisoner convicted by Court-Martial the prisoner's antecedents need not ordinarily be inquired into and it will be sufficient to enquire about his behaviour in prison.
5. Mr. Anil Joshi, learned AAG submits that once the sentence has been awarded to the accused to remain in custody for actual life, then any kind of deviation on any pretext sought by the (Downloaded on 20/03/2024 at 08:40:06 PM) [2024:RJ-JD:12958-DB] (7 of 7) [CRLW-1740/2023] petitioner cannot be allowed and the respondent-State is bound by the judgment which has already attained finality.
6. This Court is of the clear opinion that since the impugned judgment by which the petitioner has been sentenced for actual life, therefore, any deviation in the sentence cannot be sought for by the petitioner because ultimately releasing the petitioner on permanent parole or shortening of sentence would lead to change in the sentence which is not called for in this application.
7. The judgment passed by Hon'ble the Apex Court in the case of Sukhveer @ Kooli Vs. State of Rajasthan: Criminal Appeal No.1265/2023, as relied on by the petitioner also does not provide any help to the petitioner because in that case, the Hon'ble Apex Court has directed that an accused awarded the life sentence would continue to remain in jail till his last breath only if, there is an order of a Constitutional Court. The aforesaid case is distinguishable as it would not apply in the present case because in this case, the sentence awarded till his last breath, has been affirmed by the High Court and thus, the aforesaid case law would not apply.
8. Accordingly, the present criminal writ petition is dismissed.
(RAJENDRA PRAKASH SONI),J (DR. PUSHPENDRA SINGH BHATI),J 26-Suraj/Divya Tak (Downloaded on 20/03/2024 at 08:40:06 PM) Powered by TCPDF (www.tcpdf.org)