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HON'BLE MR. JUSTICE RAMESHWAR VYAS Order 5th March, 2021 PER HON'BLE MR. SANGEET LODHA,J.

1. These writ petitions preferred by the writ petitioners, life convicts, aggrieved by decision of Prisoners Open Air Camp Advisory Committee ('the Committee') in refusing to recommend their transfer to Open Air Camp, under the provisions of Rajasthan Prisoners Open Air Camp Rules, 1972 ('the Rules').

2. The petitioner-Gajja Ram was convicted for offence under Section 302 IPC and sentenced to suffer life imprisonment. The petitioner was extended first parole for a period of 20 days from 22.7.09 to 10.8.09. After expiry of the period of parole, he did not surrender and absconded. Thereafter, he was arrested on 30.6.16 i.e. after lapse of about 6 years and 10 months. On account of breach of condition during the first parole, the petitioner could not avail second and third parole under Rule 9 of Rajasthan Prisoners Release on Parole Rules, 1958 ('the Rules of 1958') but he was extended benefit of parole for 7 days and thereafter, for 15 days under Rule 18 of the Rules of 1958. The petitioner made an application for transfer to Open Air Camp under the Rules of 1972, which stands rejected by the Committee observing that since the petitioner had absconded during the first parole, by virtue of inhibition contained in Rule 3 (c) of the Rules of 1972, he is not entitled for transfer to Open Air Camp.

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(10 of 12) [CRLW-467/2020]

30. Since release on parole is only a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and, thus, needs to be counted towards the total period of detention unless the rules, instructions or terms for grant of parole, prescribe otherwise. The period during which parole is availed of is not aimed to extend the outer limit of the maximum period of detention indicated in the order of detention. The period during which a detenu has been out of custody on temporary release on parole unless otherwise prescribed by the order granting parole, or by rules or instructions, has to be included as a part of the total period of detention because of the very nature of parole. An order made under Section 12 of temporary release of a detenu on parole does not bring the detention to an end for any period- it does not interrupt the period of detention- it only changes the mode of detention by restraining the movement of the detenu in accordance with the conditions prescribed in the order of parole. The detenu is not a free man while out on parole. Even while on parole he continues to serve the sentence or undergo the period of detention in a manner different than from being in custody. He is not a free person. Parole does not keep the period of detention in a state of suspended animation. The period of detention keeps ticking during the period of temporary release of a detenu also because a parolee remains in legal custody of the State and under the control of its agents, subject at any time, for breach of condition, to be returned to custody. Thus, in cases which are covered by Section 12 of COFEPOSA, the period of temporary release would be governed by the conditions of release whether contained in the order or the rules or instructions and where the conditions do not prescribe it as a condition that the period during which the detenu is out of custody, should be excluded from the total period of detention, it should be counted towards the total period of detention for the simple reason that during the period of temporary release the detenu is deemed to be in constructive custody. In cases falling outside Section 12, if the interruption of detention is by means not authorised by law, then the period during which the detenu has been at liberty, cannot be counted towards period of detention while computing the total period of detention and that period has to be excluded while computing the period of detention. The answer to the question, therefore, is that the period of detention would not stand automatically extended by any period of parole granted to the detenu unless the order of parole or rules or instructions specifically indicates as a term and condition of parole, to the contrary. The period during which the detenu is on parole, therefore, requires to be counted towards the total period of detention." (emphasis supplied) (11 of 12) [CRLW-467/2020]

14. It is pertinent to note that Rule 2 (d) of the Rules of 1958, defines 'parole' as conditional enlargement of a prisoner from the jail. Further, Rule 12 of the Rules of 1958, specifically provides that the period for which prisoner stays on parole under Rule 9 without violating the conditions laid down for the purpose, shall be treated as imprisonment served and all other kinds of parole shall be treated as 'sentence suspended'. Thus, apparently, when a prisoner is release on parole conditionally under Rule 9, the detention/legal custody of the State continues though in a manner different than actual detention in prison.

15. In view of the discussion above, we are of the opinion that if a prisoner released on parole under Rule 9 of the Rules of 1958, does not surrender before the Jail Authorities to undergo the remaining part of the sentence, it will amount to escaping from the lawful custody and thus, ordinarily, be not eligible to be transferred to Open Air Camp on account of inhibition contained in Rule 3 (c) of the Rules of 1972.

16. In view of discussion above, since, we are not agreeable to the view taken by a Bench of this Court in Yogesh Kumar Devangan's case (supra), we refer the following question of law for consideration by a Larger Bench: