Rajasthan High Court - Jodhpur

Subhash Khichad vs State on 14 January, 2021

Bench: Sandeep Mehta, Devendra Kachhawaha

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

D.B. Criminal Writ Petition No. 382/2020

Subhash Khichad S/o Lt. Sh. Mahendra Singh, Aged About 30 Years, By Caste Jat, At Present Lodged In Central Jail, Bikaner, Through His Mother Smt. Jyani Devi W/o Lt. Sh. Mahendra Singh Aged Abot 51 Years, R/o Village Salemgarh P.s. Tibbi District Hanumangarh.

----Petitioner Versus

1. State, Through Secretary, Dept. Of Home, Secretariat, Rajasthan, Jaipur.

2. The District Collector, Hanumangarh.

3. The Superintendent, Central Jail, Bikaner.

                                                                  ----Respondents


For Petitioner(s)          :     Mr. Kaluram Bhati
For Respondent(s)          :     Mr. Abhishek Purohit, associate to Mr.
                                 Farzand Ali, G.A.-cum-A.A.G.



            HON'BLE MR. JUSTICE SANDEEP MEHTA

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Order

14/01/2021

The instant writ petition has been filed by the convict

petitioner Subhash Khichad seeking a direction for release on first

parole of 20 days. The petitioner was convicted and sentenced to

undergo life imprisonment vide judgment dated 26.08.2016

passed by the learned Additional Sessions Judge No.2,

Hanumangarh in Sessions Case No.1/2014. It is averred that the

petitioner's application for release on first parole of 20 days has

not been decided by the competent authority.

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          Notice   of   the      writ     petition      was    issued   to   the

respondents and a reply has been filed on their behalf.                  It has

been categorically mentioned in the reply that the convict was

released on 15 days' parole on 08.03.2017 in furtherance of the

order dated 06.03.2017 passed by the District Magistrate,

Hanumangarh, but he did not report back at the prison on the

scheduled date and went absconding, upon which a criminal case

was registered against him. On 13.05.2017, information was

received that the convict was arrested and lodged at the Central

Jail Bhatinda in another case. Thus, his custody was sought from

the said jail and he was brought back and lodged at the Central

Jail, Bikaner to undergo his life sentence. In these circumstances,

the respondents have pleaded that the convict has lost the right to

be considered for grant of regular parole under Rule 9 of the

Rajasthan Prisoners Release on Parole Rules, 1958 (for short,

hereinafter referred to as 'the Rules of 1958') and that he can now

only seek release on parole under Rule 18 of the Rules of 1958.

Learned counsel Mr. Kaluram Bhati vehemently and

fervently submits that the consequence of denial of parole upon

abscondance flows only if the convict has breached the conditions

of "regular parole" of 20, 30 or 40 days, as the case may be,

granted under Rule 9 of the Rules of 1958, whereas the convict-

petitioner herein had been released on emergent parole of 15

days and thus, this restriction would not apply to the present

circumstances and the petitioner herein is entitled to be released

on regular parole of 20 days.

Per contra, Mr. Abhishek Purohit, associate to Mr.

Farzand Ali, G.A.-cum-A.A.G., has vehemently and fervently

opposed the submissions advanced by Mr. Bhati. He points out

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that the consequence of Rule 18 of the Rules of 1958 that the

convict will not be entitled for release on regular parole flows from

the fact that after being released on parole, whatever its nature

be, the convict has misused the liberty so granted to him and

absconds. The factum of abscondance plays prime role for denial

of regular parole to the convict and the nature of parole, on which

the convict was released, whether regular or emergent, is

immaterial. He, therefore, seeks dismissal of the writ petition.

We have given our thoughtful consideration to the

submissions advanced by the counsel for the parties and have

considered the relevant statutes.

The right of a convict to be considered for release on

regular parole of 20, 30 and 40 days and emergent parole flows

from Rules 9 and 9-A of the Rules of 1958. For ready reference,

these Rules are reproduced hereinbelow:-

"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

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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 of his sentence;

9-A. In emergent cases the Superintendent of Jail shall grant parole upto a period of 7 days only subject to confirmation by the Inspector General of Prisons and for a period of not more than 15 days by the Inspector General of Prisons."

In addition thereto emergent parole can be granted to a convict on

certain humanitarian grounds under Rule 10-A of the Rules of

1958.

For being released on parole, the primary requirement

of Rule 9 is that the convict must have shown good conduct in the

jail during the period of his incarceration. Needless to say that

abscondance from parole, by no stretch of imagination can be

considered to be good conduct. As per Rule 13 of the Rules of

1958, grant of parole should be regarded as a concession to

encourage good conduct and it shall not be claimed by prisoners

as a matter of right. As per Rule 18 of the Rules of 1958, a

convict can be awarded various punishments for breach of

conditions of parole. For ready reference, Rule 18 of the Rules of

1958 is reproduced hereinbelow :-

"18. Punishment for breach of conditions of Parole.- The following punishments may be awarded to the prisoners for over staying their sanctioned parole

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period or for breach of any other conditions laid down namely:-

(i) He should not be let off any parole in future unless the Superintendent of Jail is fully satisfied that he will not commit any breach of condition in future.

(ii) In case the prisoner is released on the recommendation of the Superintendent of Jail concerned after the breach of condition, the period of release on parole would be 7 days excluding days of journey to home and back. The next parole will be 15 days (Provided he has behaved himself well during the period) and 30 days in the fourth parole.

(iii) If the prisoner again over-stays or commits any breach of the terms of the parole, he shall be permanently debarred from the concession of release on parole."

Mr. Kaluram Bhati tried to draw a distinction that the

punishment can only flow from a prisoner over-staying

"sanctioned parole" or breach of any other condition thereof. As

per Mr. Bhati, emergent parole cannot be equated with regularly

sanctioned parole. However, this argument is absolutely flimsy

because sanctioned parole means a parole, which has been

granted with due sanction of the authority concerned. Obviously

any kind of parole, whether it be regular or emergent, can only be

availed after being duly sanctioned by the competent authority.

Thus, the language of Rule 18 of the Rules of 1958 does not make

any distinction between regular parole or emergent parole and

over-staying of a prisoner after the period of parole whatever its