Rajasthan High Court - Jaipur
Kamlesh vs State (Home Department)Ors on 21 May, 2013
Author: R.S. Chauhan
Bench: R.S. Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR D.B. Civil Writ Petition (Parole) No.7043/2013 Kamlesh Kumar Versus State of Rajasthan and Others DATE OF ORDER :: 21.05.2013 HON'BLE MR.JUSTICE R.S. CHAUHAN HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Mr.Sumer Singh for petitioner. Ms.Rekha Madnani, Dy. Govt. Adv., for respondents - State. <><><> BY THE COURT : (Per Hon. V.S. Siradhana, J.)
The petitioner, Kamlesh S/o Shri Bihari Lal Mishra, has assailed the order dated 18.02.2013 passed by the State Parole Committee, declining the prayer of the petitioner for his release on permanent parole under Rule 9 of the Rajasthan Prisoners Release on Parole Rules, 1958 (hereinafter, the Rules of 1958, for short).
The facts necessary for adjudication of the controversy are that the petitioner preferred a D.B. Criminal Appeal before this Court against the order of conviction and sentence dated 16.09.1999 passed in Sessions Case No.132/1998 for offence under Section 302/34 IPC, by the Sessions Judge, Baran. However, the D.B. Criminal Appeal preferred by the petitioner has already been dismissed. The petitioner has been in judicial custody since his arrest w.e.f. 20.09.1998 and thus, it is submitted that he has served more than seventeen years of imprisonment. It is further submitted on behalf of the petitioner that his conduct and behaviour has been good while in judicial custody, and was accorded seven regular paroles from time to time. The case of the petitioner for consideration of his release on permanent parole was laid before the State Parole Committee convened on 05.02.2013 and the State Parole Committee has declined the release of the petitioner on permanent parole as he was not found eligible in view of the adverse report of the District Magistrate and the Superintendent of Police, Kota/Baran and further in view of the fact that a period of eleven months did not elapse from the date the petitioner surrendered i.e. 19.06.2012, after having availed of seventh regular parole, which is a basic requirement as stipulated under Rule 10 of the Rules of 1958. The counsel for the petitioner emphatically argued that the adverse reports furnished by the District Magistrate and the Superintendent of Police, Kota/Baran, are absolutely without any factual foundation. Further, the petitioner availed of seven regular paroles maintaining good conduct and behaviour without disturbing peace and tranquility, and has been transferred to Open Air Camp, Kota, where he has been residing for long. There has been no complaint about the conduct and behaviour of the petitioner. The Jail Authorities have also certified his behaviour and conduct to be satisfactory. It is further submission of the counsel for the petitioner that Rule 10 of the Rules of 1958 is applicable with reference to the issue of regular parole, so as to maintain a gap of minimum eleven months between the two paroles, but that restriction is not attracted while considering the case of petitioner for permanent parole. Reliance has been placed on the judgment delivered by the Division Bench of this Court at Principal Seat at Jodhpur, in D.B. Civil Writ Petition (Parole) No.8293/2012 (Amar Singh @ Amarlal Versus State of Rajasthan and Others).
The counsel for the respondent State opposed the prayer of the petitioner and submitted that Rule 10 of the Rules of 1958 was very much attracted in the instant case at hand while considering the case of the petitioner for release on permanent parole so as to ensure that a period of eleven months did elapse between the two paroles. Further, the District Magistrate and the Superintendent of Police, Kota/Baran, have also furnished adverse reports and did not recommend the release of the petitioner on permanent parole and therefore, prayed for dismissal of the writ petition.
We have heard the counsel for the petitioner, the learned Deputy Government Advocate for respondent State and perused the material available on record.
The petitioner has claimed his release on permanent parole in view of mandate of Rule 9 of the Rules of 1958, which reads thus:-
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 Ist 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 he is not likely to replace 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 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.] Though Rule 10 of the Rules of 1958 stipulates a condition to the effect that no second and subsequent release on parole shall be made unless eleven months have elapsed from the date of the expiry of the period of release on parole immediately preceding, but that rule is interpreted by this Court, to mean that requirement of keeping a gap of eleven months after surrendering from first, second and third regular parole, as the case may be. It is not applicable while considering the case of a convict prisoner for grant of permanent parole. Reference in this connection may be made to the Division Bench judgment of this Court in D.B. Civil Writ Petition (Parole) Petition No.5152/2012 (Suraj Giri Vs. State & Ors.), D.B. Civil Writ (Parole) Petition No.12177/2011 (Harji Vs. State of Rajasthan & Ors.) and D.B. Civil Writ (Parole) Petition No.4938/2012 (Bagged Singh @ Jalandhar Singh Vs. State of Rajasthan & Ors.).
Further, it is surprising that the respondents have mechanically rejected the application of the petitioner for his release on permanent parole on the pretext of Rule 10 of the Rules of 1958, for that a period of eleven months did not elapse from the date of his release on earlier parole. Be that as it may, this Court has considered the issue at Principal Seat, Jodhpur in D.B. Civil Writ Petition (Parole) No.8293/2012 (Amar Singh @ Amarlal Vs. State of Rajasthan & Ors.) and vide order dated 13.09.2012, called for explanation of the Director General (Prisons) calling upon him to explain for non-compliance of the directions issued by this Court in several cases specifically pointing out not to apply the provisions of Rule 10 of the Rules of 1958 while considering the cases of grant of permanent parole. The present case at hand is yet another example of mechanical approach of the State Parole Committee, which also includes the Director General (Prisons) along with others as a member of the State Parole Committee.
This Court while deciding identical controversy in D.B. Civil Writ Petition No.2873/2012 vide judgment dated 22.04.2013 in the case of Laxman @ Nanya Vs. State of Rajasthan & Anr., took a serious view of the mechanical approach of the State Parole Committee while dealing with the issue of permanent parole observing as under:-
We deprecate the conduct of the jail authorities in mechanically dealing with such matters. We call upon the Director General (Prisons) Rajasthan to file his affidavit as to why the action may not be initiated against him for the deliberate and willful contempt of the judgment of this Court.
We however direct that appropriate order shall be passed for grant of permanent parole of the petitioner forthwith within a period of ten days. Let a notice be sent to the Director General (Prisons) Rajasthan, Jaipur.
With the aforesaid directions, the writ petition stands disposed of. A copy of this order be also sent to the Director General (Prisons) Rajasthan, Jaipur for compliance.
Separate contempt proceedings be registered against Director General (Prisons) Rajasthan, Jaipur.
We are shocked and surprised of the manner of functioning of the respondents-State in the face of the observations made by this Court in the case of Laxman @ Nanya (supra) and initiating contempt proceedings. The impugned order dated 18.02.2013 and the view taken by the State Parole Committee in its meeting convened on 05.02.2013 speaks volumes about the mechanical approach of the respondent State and flagrant disrespect and disregard to the directions of this Court.
For the reasons aforesaid, the writ petition is allowed and the impugned order dated 18.02.2013 qua the petitioner (Kamlesh) is quashed, and we further direct the respondents to issue appropriate order in the matter of the petitioner with reference to the grant of permanent parole immediately within a period of seven days from the date of a receipt of certified copy of this order.
A copy of this order be also placed in the record of the contempt proceedings, which have been registered against the Director General (Prisons), Rajasthan, Jaipur in D.B. Civil Writ Petition (Parole) No.2873/2013.
[VEERENDR SINGH SIRADHANA],J. [R.S. CHAUHAN],J. Sunil/PA
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
(Sunil Solanki) P.A.