Rajasthan High Court - Jodhpur
Sharawan Manji vs State on 25 August, 2020
Author: Sandeep Mehta
Bench: Sandeep Mehta
(1 of 13) [CRLW-94/2020]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Writ Petition No. 94/2020
Sharawan Manjhi S/o Ramdev Manjhi, R/o Manjhi Ka Mohalla,
Kharari, District Darbhanga (Bihar). (At Present Lodged At Open
Air Camp, Ganganagar).
----Petitioner
Versus
1. State, Through Secretary, Home Dept., Jaipur.
2. Superintendent, Central Jail, Sri Ganganagar.
----Respondents
For Petitioner(s) : By Post
For Respondent(s) : Mr. Farzand Ali GA-cum-AAG
associate to Mr. Abhishek Purohit
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MS. JUSTICE KUMARI PRABHA SHARMA Order Date of Pronouncement : 25/08/2020 Date of Reserve : 19/08/2020 REPORTABLE The instant writ petition has been preferred by the convict-
petitioner Sharawan Manjhi through jail while serving life imprisonment at the Open Air Camp, Sri Ganganagar. As per custody details set out in the reply, the convict has served substantive sentence of almost 17 years and has earned remission of almost 3.5 years.
It is an admitted position as emerging from the record and the reply that the convict has satisfactorily availed regular paroles during the period of his incarceration and no report has ever been received that the convict misused the liberty so granted to him on more than one occasions. The convict served the requisite imprisonment whereafter, he became entitled to seek permanent (Downloaded on 25/08/2020 at 08:50:47 PM) (2 of 13) [CRLW-94/2020] parole upon which, he preferred an application to the State Level Parole Advisory Committee which has dismissed the same assigning the following reasons:-
"6- n-ca- Jo.k eka>h iq= jkenso eka>h] tkfr&eka>h eYykg] fuoklh & [kjkjh] iqfyl Fkkuk & gk;k?kkV] ftyk & njcaxk ¼fcgkj½ ¼ca-[kq- f"k- Jhxaxkuxj½ %& canh dks ekuuh; lS"ku U;k;k/kh"k] guqekux<+ }kjk lS"ku izdj.k la[;k 20@2004 ¼39@2003½ varxZr /kkjk 364] 376 ¼2½ ¼,Q½] 377] 302] 201 vkbZ-ih-lh- esa vkthou dkjkokl ls fnukad 16-07-2004 dks nf.Mr fd;k x;k gSA canh }kjk vigj.k] cykRdkj tSlk t?kU;] ohHkRl vijk/k dkfjr fd;k x;k gS] vr% lfefr }kjk loZlEefr ls canh Jo.k eka>h iq= jkenso eka>h dks LFkkbZ iSjksy ij fjgk ugha djus dh vuq"ka'kk dh gSA jkT; ljdkj jkT; Lrjh; iSjksy lfefr dh vfHk"ka'kk ls lger gSA vr% canh dks LFkkbZ iSjksy ij fjgk ugha djus dk fu.kZ; fy;k x;k gSA"
The convict has now approached this Court through this letter writ petition under Article 226 of the Constitution of India for assailing the above recommendations. A prayer is also made by the convict in this letter writ petition that he should be granted permanent parole upon furnishing a personal bond only because other than his ailing wife and two minor children, there is no one else in the family who can stand surety on behalf of the convict if he is released on permanent parole.
In their reply, the respondents have supported the adverse recommendations whereby permanent parole application of the present petitioner was rejected.
On a perusal of the above quoted paragraph of the recommendations dated 06.07.2018, it is apparent that the only reason assigned therein for denying permanent parole to the petitioner is the heinousness and gravity of the offence. No consideration was made of the conduct of the convict-petitioner in prison during the periods, he availed the facility of regular paroles.
(Downloaded on 25/08/2020 at 08:50:47 PM)(3 of 13) [CRLW-94/2020] The objective behind concept of parole is in consonance with the reformative theory of punishment and it is a means to provide an avenue to a convict for his rehabilitation and reintegration into the Society as a reformative measure. Hon'ble the Supreme Court made a detailed consideration of this theory in the case of Asfaq Vs. State of Rajasthan reported in AIR 2017 SC 4986 wherein, it was held as below:-
"7) We may state at the outset that the reason because of which the High Court dismissed the writ petition filed by the appellant herein is not an apposite one and does not meet the test of law.
The petition is dismissed only on the ground that the appellant is convicted in a case of serious and heinous crime and, therefore, parole cannot be claimed as a matter of right. As per the discussion that would follow hereinafter, the conviction in a serious and heinous crime cannot be the reason for denying the parole per se. Another observation made by the High Court is that since this Court had decided the appeal of the appellant affirming the conviction, it would not be appropriate for the High Court to exercise its discretion in favour of the appellant and if he so desires he may approach this Court for the said purpose. This again amounts to abdication of the power vested in the High Court. Insofar as conviction for the offence for which he was charged, i.e. under the provisions of TADA, is concerned, no doubt that has been upheld till this Court. However, the issue before the High Court was entirely different. It was as to whether the appellant is entitled to the grant of parole for twenty days which he was claiming. Merely (Downloaded on 25/08/2020 at 08:50:47 PM) (4 of 13) [CRLW-94/2020] because the matter of conviction of the appellant had come up to this Court would not mean that the appellant has to be relegated to this Court every time, even when he is seeking the reliefs unconnected with the main conviction. It is more so when in the first instance it is the High Court which is supposed to decide such a prayer for parole made by the appellant. With these remarks, we advert to the issue at hand.
8) In the first instance, it would be necessary to understand the meaning and purpose of grant of parole. It would be better understood when considered in contrast with furlough. These terms have been legally defined and judicially explained by the Courts from time to time.
9) There is a subtle distinction between parole and furlough. A parole can be defined as conditional release of prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporarily on some basic grounds. In that eventuality, it is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies. Such paroles are normally granted in certain situations some of which may be as follows:
(Downloaded on 25/08/2020 at 08:50:47 PM)(5 of 13) [CRLW-94/2020]
(i) a member of the prisoner's family has died or is seriously ill or the prisoner himself is seriously ill; or
(ii) the marriage of the prisoner himself, his son, daughter, grandson, grand daughter, brother, sister, sister's son or daughter is to be celebrated; or
(iii) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation of his land or his father's undivided land actually in possession of the prisoner; or
(iv) it is desirable to do so for any other sufficient cause;
(v) parole can be granted only after a portion of sentence is already served;
(vi) if conditions of parole are not abided by the parolee he may be returned to serve his sentence in prison, such conditions may be such as those of committing a new offence; and
(vii) parole may also be granted on the basis of aspects related to health of convict himself.
12) A convict, literally speaking, must remain in jail for the period of sentence or for rest of his life in case he is a life convict. It is in this context that his release from jail for a short period has to be considered as an opportunity afforded to him not only to solve his personal and family problems but also to maintain his links with society. Convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens. Thus, redemption and rehabilitation of such prisoners for good of societies must receive due weightage while (Downloaded on 25/08/2020 at 08:50:47 PM) (6 of 13) [CRLW-94/2020] they are undergoing sentence of imprisonment.
14) From the aforesaid discussion, it follows that amongst the various grounds on which parole can be granted, the most important ground, which stands out, is that a prisoner should be allowed to maintain family and social ties. For this purpose, he has to come out for some time so that he is able to maintain his family and social contact. This reason finds justification in one of the objectives behind sentence and punishment, namely, reformation of the convict. The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are:
deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, al beit for periods. These gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the good of the 2 (2000) 3 SCC 394 society and, therefore, are in public interest.
15) The provisions of parole and furlough, thus, provide for a humanistic approach towards those lodged in jails. Main purpose of such provisions is to afford to them an opportunity to solve their personal and family (Downloaded on 25/08/2020 at 08:50:47 PM) (7 of 13) [CRLW-94/2020] problems and to enable them to maintain their links with society. Even citizens of this country have a vested interest in preparing offenders for successful re-entry into society.
Those who leave prison without strong networks of support, without employment prospects, without a fundamental knowledge of the communities to which they will return, and without resources, stand a significantly higher chance of failure. When offenders revert to criminal activity upon release, they frequently do so because they lack hope of merging into society as accepted citizens.
Furloughs or parole can help prepare offenders for success.
16) Having noted the aforesaid public purpose in granting parole or furlough, ingrained in the reformation theory of sentencing, other competing public interest has also to be kept in mind while deciding as to whether in a particular case parole or furlough is to be granted or not. This public interest also demands that those who are habitual offenders and may have the tendency to commit the crime again after their release on parole or have the tendency to become threat to the law and order of the society, should not be released on parole. This aspect takes care of other objectives of sentencing, namely, deterrence and prevention. This side of the coin is the experience that great number of crimes are committed by the offenders who have been put back in the street after conviction. Therefore, while deciding as to whether a particular prisoner deserves to be released on parole or not, the aforesaid aspects have also to be kept in mind. To put it tersely, the authorities are supposed to address the question as to whether (Downloaded on 25/08/2020 at 08:50:47 PM) (8 of 13) [CRLW-94/2020] the convict is such a person who has the tendency to commit such a crime or he is showing tendency to reform himself to become a good citizen.
17) Thus, not all people in prison are appropriate for grant of furlough or parole. Obviously, society must isolate those who show patterns of preying upon victims. Yet administrators ought to encourage those offenders who demonstrate a commitment to reconcile with society and whose behaviour shows that aspire to live as law-abiding citizens. Thus, parole program should be used as a tool to shape such adjustments.
18) To sum up, in introducing penal reforms, the State that runs the administration on behalf of the society and for the benefit of the society at large cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty. It is for this reason that in introducing such reforms, the authorities cannot be oblivious of the obligation to the society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty (by a Court) of having perpetrated a criminal act. One of the discernible purposes of imposing the penalty of imprisonment is to render the society immune from the criminal for a specified period. It is, therefore, understandable that while meting out humane treatment to the convicts, care has to be taken to ensure that kindness to the convicts does not result in cruelty to the society. Naturally enough, the authorities would be anxious to ensure that the convict who is released on furlough does not seize the opportunity to commit another crime when he (Downloaded on 25/08/2020 at 08:50:47 PM) (9 of 13) [CRLW-94/2020] is at large for the time-being under the furlough leave granted to him by way of a measure of penal reform.
19) Another vital aspect that needs to be discussed is as to whether there can be any presumption that a person who is convicted of serious or heinous crime is to be, ipso facto, treated as a hardened criminal. Hardened criminal would be a person for whom it has become a habit or way of life and such a person would necessarily tend to commit crimes again and again. Obviously, if a person has committed a serious offence for which he is convicted, but at the same time it is also found that it is the only crime he has committed, he cannot be categorised as a hardened criminal. In his case consideration should be as to whether he is showing the signs to reform himself and become a good citizen or there are circumstances which would indicate that he has a tendency to commit the crime again or that he would be a threat to the society. Mere nature of the offence committed by him should not be a factor to deny the parole outrightly. Wherever a person convicted has suffered incarceration for a long time, he can be granted temporary parole, irrespective of the nature of offence for which he was sentenced. We may hasten to put a rider here, viz. in those cases where a person has been convicted for committing a serious office, the competent authority, while examining such cases, can be well advised to have stricter standards in mind while judging their cases on the parameters of god conduct, habitual offender or while judging whether he (Downloaded on 25/08/2020 at 08:50:47 PM) (10 of 13) [CRLW-94/2020] could be considered highly dangerous or prejudicial to the public peace and tranquillity etc."
[Emphasis supplied] The ratio of the above decision is that a person convicted of serious or heinous crime cannot be ipso facto, treated as a hardened criminal. Hardened criminal would be a person for whom, crime has become a habit or way of life and such person would necessarily tend to commit crime time and again. If a person has committed a serious offence for which he is convicted, but it is found that it is a solitary instance of his committing an offence irrespective of its nature, he cannot be branded as a hardened criminal.
The Supreme Court has observed that in such cases consideration of parole should be made keeping in view the fact that whether the convict is showing signs of reforming himself and becoming a good citizen or that there are circumstances which would indicate that he has a tendency to lapse into crime. Mere nature of the offence committed by the convict should not be a factor to deny parole outrightly. In a given case, the heinous nature of the offence may be considered sufficient to deny the parole to the convict if such conduct is considered highly dangerous or prejudicial to the public peace and tranquility etc. Thus, it can easily be inferred that in the case of a convict who has been incarcerated in prison for almost 17 years and has availed regular paroles without any complaint whatsoever, his/her (Downloaded on 25/08/2020 at 08:50:47 PM) (11 of 13) [CRLW-94/2020] release on parole can obviously not be considered as prejudical to the public, peace or tranquility etc. Rule 9 of the Rajasthan Prisoners Release on Parole Rules 1958, which governs the right of convict to be released on permanent parole, reads as below:-
"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 prisoner will be eligible for release on parole for 40 days every year subject to (Downloaded on 25/08/2020 at 08:50:47 PM) (12 of 13) [CRLW-94/2020] 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.] [Emphasis supplied] A bare perusal of the Rule 9 of the Rajasthan Prisoners Release on Parole Rules 1958 indicates that there is nothing in the Rule which indicates that heinousness or serious nature of offence can be a valid ground of denial of parole/permanent parole to a convict.
The Rule clearly indicates that the term "consideration for release of a prisoner on parole is good conduct and good behaviour during the regular parole granted to such convict".
If the behaviour of the convict during the regular third parole has been excellent and his conduct has been exceptionally good and if there is no likelihood of his relapsing into crime, the case of such a convict is to be referred to the State Government to be considered for release on permanent parole. Thus, the criteria for grant of permanent parole is clearly defined in the Rule itself.
(Downloaded on 25/08/2020 at 08:50:47 PM)(13 of 13) [CRLW-94/2020] Needless to say that while considering the parole application, these guidelines must be kept in mind and consideration to this effect must be reflected in the parole recommendations. As the convict-petitioner has admittedly been granted regular paroles during the period of his incarceration, it can be presumed that his conduct in prison as well as while being on parole has been excellent as no complaint has been received against him from any quarter. There is nothing either in the reply or in the minutes, which can indicate to the contrary.
In this background, we are of the firm opinion that the adverse recommendations dated 06.07.2018 whereby, the application of the convict-petitioner Sharawan Manjhi for being released on permanent parole was rejected, cannot be sustained as the same are contrary to the Rules.
Thus, the impugned recommendations dated 06.07.2018 are hereby quashed and set aside qua the convict Sharawan Manjhi.
The matter is remanded to the State Level Parole Committee who shall reconsider the case of the convict-prisoner for grant of permanent parole keeping in view the observations made above.
The meeting shall be convened expeditiously and the case of the convict-petitioner shall be decided afresh within next two months.
The writ petition is allowed in these terms.
(KUMARI PRABHA SHARMA),J (SANDEEP MEHTA),J Mamta/Tarun (Downloaded on 25/08/2020 at 08:50:47 PM) Powered by TCPDF (www.tcpdf.org)