Allowed

Rajendra @ Raju v. State of Rajasthan

Rajasthan HC12 Jan 2021CRLW/256/2020

Case brief

AI extract

What is this about?

The Jodhpur High Court allowed a life convict's writ petition seeking permanent parole. The court set aside the State Committee's rejection, which was based solely on the heinous nature of the crime, directing fresh consideration under Rule 9 of the 1958 Rules focusing on good conduct rather than offense nature.

What did the court decide?

The impugned order rejecting permanent parole was set aside; matter remanded to the State Committee for reconsideration within six weeks.

Rajendra @ Raju Vs State of Rajasthan — Pension and Retirement Benefits | Rajasthan HC (2021)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Criminal Writ Petition No. 256/2020

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Rajendra @ Raju S/o Shri Sukha Ram, Aged About 50 Years, at present lodged in Central Jail, Jodhpur Through his Wife Smt. Madhu W/o Shri Rajendra @ Raju, Age About 45 Years, R/o Kumharo Ka Bass, P.S. Ladnu, District Nagaur.

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----Petitioner

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Versus

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State of Rajasthan, Through Secretary of Home Department Jaipur (Raj.).

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The District Collector, Nagaur.

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The Superintendent, Central Jail, Jodhpur.

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----Respondents

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For Petitioner(s) : Mr. Kalu Ram Bhati through VC For Respondent(s) : Mr. Abhishek Purohit for Mr. Farzand Ali, AAG

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HON'BLE MR. JUSTICE SANGEET LODHA HON'BLE MR. JUSTICE RAMESHWAR VYAS

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Order

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12th January, 2021

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PER HON’BLE MR. SANGEET LODHA,J.

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Reportable

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This petition is filed by the petitioner, a life convict, seeking directions to the respondents to release him on permanent parole.

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The petitioner was convicted for offences under Sections 363, 366A, 376 (2)(f) of IPC and was sentenced to life imprisonment with fine Rs.1,750/- and in default in payment of

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fine to undergo four years six months additional imprisonment, vide judgment dated 10.5.06 passed by the Additional Sessions Judge (Fast Track) in Sessions Case No.11/06. The appeal preferred by the petitioner against the conviction and sentence as aforesaid stands dismissed by this Court vide judgment dated 4.7.16 passed in Criminal Appeal 486/06. The petitioner has already served the sentence of 17 years, 7 months and 4 days including remission of 3 years, 2 months and 29 days as on 30.6.2020. During the period of incarceration, the petitioner has availed first and second parole for 20 days and 30 days respectively and emergent parole for 7 days. Being eligible, the petitioner applied for permanent parole under Rule 9 of Rajasthan Prisoners Release on Parole Rules, 1958 (for short “the Rules of 1958”). The application has been rejected by the State Committee vide decision dated 27.5.20 taking into consideration the opinion of District Probation and Welfare Officer that if convict is released on permanent parole, there is possibility of quarrel in his family. That apart, the Committee observed that the petitioner has been convicted for heinous crime of committing rape on minor girl of four years of age.

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Learned counsel appearing for the petitioner contended that the conviction of the prisoner for an offence of heinous nature by itself cannot be a valid ground for denial of permanent parole under Rule 9 of the Rules of 1958. Drawing the attention of the Court to Rule 9 of the Rules of 1958, learned counsel submitted that if during the period of release on regular parole, the prisoner has behaved well and is not likely to relapse into crime, the State Committee for Permanent Release on Parole (‘the State Committee’) is under an obligation to recommend his case to the

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State Government for permanent release on parole. In support of the contention, learned counsel has relied upon a decision of the Supreme Court in Asfaq vs. State of Rajasthan: AIR 2018 SC (Criminal) 37 and a Bench decision of this Court in Sharawan Manjhi vs. State & Anr.: D.B.Criminal Writ Petition No.94/20, decided on 25.8.20.

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On the other hand, Mr. Abhishek Purohit, learned counsel appearing for the State submitted that the involvement of the convict in commission of a heinous crime can always be taken into consideration while deciding the application seeking permanent parole. Learned counsel submitted that the nature of the crime committed by the prisoner is relevant to determine his character and the possibility of his relapsing into crime. Learned counsel further submitted that in the instant case, the petitioner is convicted for an offence of committing rape on minor girl of four years of age and therefore, the conclusion arrived at by the State Committee in not recommending his case for release on permanent parole cannot be faulted with.

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We have considered the rival submissions and perused the material on record.

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In Asfaq’s case (supra), the Supreme Court while dealing with the issue with regard to denial of parole to the prisoners convicted in a case of serious and heinous crime observed:

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“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

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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 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.

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…..xxxxx…………..xxxxx

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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 good conduct, habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquillity etc .” (emphasis added)

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Dealing with the purpose of the provisions incorporated under the Rules of 1958 for release on parole, the Supreme Court observed:

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“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

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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 society and, therefore, are in public interest.

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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 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.

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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 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.

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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

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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.

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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 is at large for the time-being under the furlough leave granted to him by way of a measure of penal reform.” (emphasis added)

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Relying upon the decision of the Supreme Court in Asfaq’s case (supra), a Bench of this Court in Sharawan Manjhi’s case (supra), observed:

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“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.

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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.

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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

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release on parole can obviously not be considered as prejudical to the public, peace or tranquility etc. ”

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Dealing with the ambit and scope of the provisions of Rule 9 of the Rules of 1958 regarding the release of the prisoner on parole/permanent parole in Sharawan Manjhi’s case (supra), the Court held:

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“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.

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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 ”.

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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. 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.”

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Keeping in view the provisions of the Rules of 1958 governing grant of parole, authoritative pronouncement of the Supreme Court in Asfaq’s case (supra) and this Court in Sharawan Manjhi’s case (supra), there cannot be any quarrel with the preposition that the conviction for a serious or heinous crime by itself cannot operate as absolute bar for denying parole to the prisoner who has otherwise acquired eligibility for release on parole.

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But then, the grant of first, second and third parole for the period of 20, 30 & 40 days respectively and the permanent parole under the Rules of 1958 is governed by Rule 9, which reads as under:

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“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 the same conditions for the remaining period of his sentence.

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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 added)

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A bare perusal of Rule 9 of the Rules of 1958 reveals that the parameters laid down for release on regular parole for the specified period and for permanent release on parole are not the same. It is noticed that a convict may be released on first parole

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for a period of 20 days if he has completed with remission, if any, one fourth of his sentence and subject to good conduct in the jail. He becomes entitle for release for 30 days on second parole and 40 days on third parole if his behaviour has been good during the first and second parole respectively. But then, for permanent release of the prisoner on parole, the following conditions must be satisfied:

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(i) Besides the first and second parole even during the third parole, the prisoner has behaved well; (ii) His character has been exceedingly well ; and (iii) His conduct has been such that he is not likely to relapse into crime.

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As laid down by a Bench of this Court in Suraj Giri Vs. State of Rajasthan: (2010) 4 RLW 3507, the prisoners who have served the requisite period of sentence and are eligible for consideration for release on permanent parole under the Rules of 1958 cannot be denied consideration on the ground that he has not availed first, second and third parole in terms of Rule 9 of the Rules of 1958. But the fact remains that if the prisoner had availed the regular parole for the specified period then for consideration of his case, it is absolutely necessary that during the release on regular parole, his behaviour has been good.

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It goes without saying that while considering the case of the prisoner for permanent release on parole, the State Committee is under an obligation to take into consideration all the parameters/conditions laid down under Rule 9 of the Rules of 1958 as aforesaid and record its conclusion thereon while granting or denying the permanent parole to the prisoner. The State Parole Advisory Committee cannot grant or reject an application seeking

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permanent parole by merely recording its ipse dixit. Of course, in those cases where the person has been convicted for a serious offence as laid down by the Supreme Court in Asfaq’s case (supra), the competent authority can have stricter standards in mind while judging his case on the parameters of the good conduct habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquility etc.

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Adverting to the facts of the present case, it is noticed that the application of the petitioner seeking permanent release on parole has been rejected by the State Committee solely on the grounds; firstly, that if the prisoner is released on permanent parole, there is possibility of quarrel in his family and secondly, that he has been convicted for committing rape on a minor girl of four years. Suffice it to say that the case of the prisoner for release on permanent parole has not been considered by the State Committee in conformity with the mandate of Rule 9 of the Rules of 1958 keeping in view the parameters/conditions laid down as aforesaid.

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In view of the discussion above, the order impugned passed by the State Committee deserves to be set aside and the matter deserves to be remanded to the State Committee for consideration afresh, keeping in view, the provisions of Rule 9 of the Rules of 1958 and the law laid down by the Supreme Court and this Court as aforesaid.

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Accordingly, the writ petition is allowed. The decision of the State Committee dated 27.5.20 in rejecting the application of the petitioner seeking permanent release on parole is set aside. The matter is remanded to the State Committee for consideration

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afresh in accordance with the provisions of Rule 9 of the Rules of 1958 and the position of law settled by the decisions of the Supreme Court and this Court, discussed above. The State Committee shall decide the application of the petitioner afresh expeditiously, in any case, within a period of six weeks from the date of receipt of certified copy of this order.

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(RAMESHWAR VYAS),J

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(SANGEET LODHA),J

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15-Aditya/-

Rajendra @ Raju v. State of Rajasthan

Case brief

What is this about?

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Rajendra @ Raju v. State of Rajasthan

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