Gajja Ram @ Gajendra vs State
2021 Latest Caselaw 6650 Raj

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR



             D.B. Criminal Writ Petition No. 467/2020

Gajja Ram @ Gajendra S/o Lumba Ram, Aged About 39 Years, At
Present Lodged In Central Jail Jodhpur Through His Wife Smt.
Neelam Chaudhary Aged About 35 Years, R/o Labrau, P.S.
Ramsar, District Barmer
                                                                   ----Petitioner
                                   Versus


1.     State,   Through        Secretary,         Department         Of   Home,
       Secretariat, Rajasthan, Jaipur.
2.     The Director General Jail, Jaipur.
3.     The Superintendent, Central Jail Jodhpur.
                                                                ----Respondents
                                 alongwith


             D.B. Criminal Writ Petition No. 511/2020

 Joshnath S/o Shri Ramnath, Aged About 28 Years, At Present
 Lodged In Central Jail Jodhpur Through His Mother Smt.
 Hurami W/o Ramnath, Aged About 62 Years, By Caste Kalbeliya
 Nath, R/o Gehu Road, Shani Baba Ka Mandir, P.S. Barmer,
 District Barmer.
                                                                   ----Petitioner
                                   Versus
 1.     State, Home Depart. Jaipur.
 2.     The Director General (Jail), Jaipur.
 3.     The District Collector, Barmer.
 4.     The Superintendent, Central Jail, Jodhpur.
                                                                ----Respondents


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




                    (Downloaded on 05/03/2021 at 08:55:42 PM)
                                         (2 of 12)                [CRLW-467/2020]


           HON'BLE MR. JUSTICE SANGEET LODHA
          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.

3. Similarly, the petitioner-Joshnath, who is undergoing

sentence of life imprisonment on being convicted for offences

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

under Sections 460, 302, 307, 326, 324 IPC, has also been denied

the benefit of transfer to Open Air Camp inasmuch as, after

availing the first parole for a period of 20 days from 9.6.15 to

28.6.15, he did not surrender and was lodged in jail after arrest

on 25.7.17.

4. Learned counsel appearing for the petitioners contended that

Clause (c) of Rule 3 of the Rules of 1972, puts restriction on

release of a prisoner, who escapes from jail or has attempted to

escape from lawful custody and thus, the inhibition contained as

aforesaid is not attracted in the matter where the prisoners fail to

surrender to Jail Authority on completion of period of parole. In

this regard, the learned counsel relied upon a Bench decision of

this Court dated 6.10.20 in Yogesh Kumar Devangan vs. State &

Ors.: D.B.Criminal Writ Petition No.541/19, wherein the Court

while considering the provisions of Rule 3(c) of the Rules of 1972

opined as under:

"7. Rule 4 of the Rules of 1972 provides that a prisoner shall be eligible for admission to an Open Air Camp, if he does not fall within any of the categories specified in Rule 3. Rule 3 of the Rules of 1972 enlists various ineligibility, out of which clause (c) and (d) (reproduced hereunder) are of some significance:

3. Ineligibility for admission to open air camp.- The following classes of prisoners shall ordinarily be not eligible for being sent to Open Camp:-

(a) ... ..... ....

(b) ..... .........

(c) persons who have escaped from the jails or who have

attempted to escape from a lawful custody,

(d) Prisoners who have been convicted of an offence or offences under sections 121 to 130, 216A, 224, 225, 231, 232, 303, 311, 328, 332, 333, 376, 377, 383, 392 to 402,

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

435 to 440 and 460 of the Indian Penal Code (Act XLV of 1860)."

.... .... ......

.... ..... ......"

8. Clause (c) of Rule 3 of the Rules of 1972 deals with a situation when a prisoner escapes from the jail or has attempted to escape from lawful custody. The petitioner's case, who has failed to report to jail authorities on completion of his parole, cannot be equated with cases of prisoners, who have escaped from the jail or have attempted to do so.

9. In our opinion, the petitioner convicted under Section 302 I.P.C. having served a sentence of more than 10 years deserves to be shifted to Open Air Camp under the Rules of 1972. Section 302 is not a provision enumerated under Rule 3(d) of the Rules of 1972, and we therefore do not see any justifiable reason to deny the petitioner his right to be admitted to Open Air Camp."

5. Learned counsel further contended that inhibitions contained

in Rule 3 of the Rules of 1972 cannot operate as an absolute bar

and the application preferred by the convict has to be considered

by the Committee after due application of mind on merits, keeping

in view the purpose behind the incorporation of provisions for

transfer of the prisoners to Open Air Camp. In support of the

contention, learned counsel relied upon the decisions of this Court

in the matters of Mohan Lal vs. State of Rajasthan: 2002 (1)

Cr.L.R. (Raj.) 460, Gaju Ram vs. State of Rajasthan & Ors.:

D.B.Misc. Parole Writ Petition No.1174/08, decided on 23.3.2008

and Parvezshah vs. State of Rajasthan & Ors.: D.B.Criminal Writs

No.101/19, decided on 13.3.19.

6. On the other hand, Mr. Farzand Ali, learned Additional

Advocate General submits that if a prisoner is released on parole

under the Rules of 1958, he continues to be in lawful custody

during the period availing the parole as also after completion

thereof, when he was supposed to surrender before the jail

authorities to undergo the remainder of period of sentence.

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

Learned AAG submitted that when a prisoner on being granted

parole or furlough is released from actual custody of the jail

authorities, he remains in legal custody of the State and failure to

surrender to the prison authorities after the expiry of the parole

period, amounts to escape from the lawful custody. In this regard,

learned AAG relied upon a decision of the Supreme Court in the

matter of Sunil Fulchand Shah vs. Union of India & Ors.: 2000(3)

SCC 409. Learned AAG submitted that the view taken by the

Division Bench of this Court in Yogesh Kumar Devangan's case

(supra) without considering this aspect of the matter is not correct

and therefore, the issue raised deserves reconsideration. Learned

AAG submitted that when a person is convicted and sentenced to

suffer the imprisonment, in exercise of the power conferred under

Section 419 Cr.P.C. warrant of execution of sentence for

imprisonment is issued by the Court to the officer in charge of the

jail or other place in which the prisoner is or is to be confined,

which remains in force till the completion of term of sentence and

thus, even if, the prisoner is temporarily released, he continues to

be in lawful custody. In this regard, the attention of the Court is

also drawn to the Form No.34 of warrant of commitment on a

sentence of imprisonment, whereby the jail authority is directed to

receive the prisoner in his custody in the jail together with warrant

and thereby carry the sentence awarded into execution according

to law. Learned AAG submitted that release on parole is temporary

arrangement by which the detenu is released from custody which

does not suspend the sentence or period of detention rather

changes the mode of undergoing the sentence and does not

interrupt the period of detention. In this regard, learned AAG also

relied upon a Single Judge decision of Bombay High Court dated

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

5.4.16 in Mohd. Azam Aslam Butt Vs the State of Maharashtra and

Anr : Writ Petition No.951/2015.

7. We have considered the submissions of the learned counsel

for the parties and perused the decisions cited at the Bar.

8. Indisputably, the concept of Open Air Camp is evolved with a

view to encourage good conduct, satisfactory performance of work

and a life of self discipline among the convicts and to provide them

with a pre-release opportunity to learn social adjustment and

economic self dependence.

9. The transfer of the prisoners to the Open Air Camp in the

State of Rajasthan is regulated by the Rules of 1972. The eligibility

of the prisoner for admission to an Open Air Camp is provided

under Rule 4 of the Rules of 1972, which reads as under :

"4. Eligibility for admission to Open Camps.- A prisoner shall be eligible for admission to an Open Air Camp, if-

(a) He does not fall within any of the categories specified in rule 3 above.

(b) He has been regularly performing his scheduled task in the Jail Factory or in Jail Service.

(c) He has served on third term of his substantive sentence including remission."

10. But then, Rule 3 of the Rules of 1972 makes the provision

regarding the classes of the prisoners, who shall ordinarily be not

eligible for being sent to Open Air Camp. The petitioners are

denied the benefits of transfer to Open Air Camp by virtue of

clause (c) of Rule 3 of the Rules of 1972, which may be

beneficially quoted:

"3. Ineligibility for admission to open air camp.- The following classes of prisoners shall ordinarily be not eligible for being sent to Open Camp:-

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



      (a) ....xxxxx......

      (b) ....xxxxx......

(c) Persons who have escaped from the jails or who have attempted to escape from a lawful custody.

....xxxxx......"

11. It is not in dispute that the petitioners after availing the first

parole for 20 days did not surrender before the jail authorities and

absconded. The issue which comes for consideration of this Court

is that whether during the period when a prisoner is availing

parole, he continues to be in detention and if he does not

surrender after availing the parole before the jail authorities, it will

amount to escaping from a lawful custody so as to attract the

provision of ineligibility contained in Clause (c) of Rule 3 of the

Rules of 1972.

12. In Yogesh Kumar Devangan's case (supra), this Court after

considering the provisions of Clause (c) of Rule 3 of the Rules of

1972, opined that failure of the prisoner to report to jail

authorities on completion of his parole cannot be equated with the

cases of the prisoners, who have escaped from jail or have

attempted to do so. But the issue as to whether even after release

on parole detention continues and the prisoner not surrendering

after completion of the period of parole amounts to escaping from

lawful custody does not appear to have been specifically raised in

Yogesh Kumar Devangan's case (supra) before the coordinate

Bench and possibly for this reason, the same has not been

considered.

13. It is noticed that the issue with regard to the temporary

release on parole came up for consideration before the

Constitution Bench of Supreme Court in Sunil Fulchand Shah's

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

case (supra) wherein while drawing distinction between 'the

release on bail' and 'temporary release on parole', the Court

opined:

"24. Bail and parole have different connotations in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment through the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word "bail" is surety. In Halsbury's Laws of England, the following observation succinctly brings out the effect of bail:

The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned.

25. "Parole", however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. The dictionary meaning of "parole" is :

The Concise Dictionary- (New Edition)

"The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behaviour; such a promise; a word of honour."

Black's Law Dictionary- (6th Edition)

"Release from jail, prison or other confinement after actually serving part of sentence; Conditional release from imprisonment which entitles parolee to serve remainder of his term outside confines of an

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

institution, if he satisfactorily complies with all terms and conditions provided in parole order."

According to The Law Lexicon, "parole" has been defined as :

"A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole."

According to Words and Phrases.

" 'Parole' ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. People ex rel Rainone v. Murphy.

'Parole' does not vacate sentence imposed, but is merely a conditional suspension of sentence. Wooden v. Goheen.

A 'parole' is not a 'suspension of sentence', but is a substitution, during continuance of parole of lower grade of punishment by confinement in legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the court. Jenkins v. Modigan.

A 'parole' does not suspend or curtail the sentence originally imposed by the court as contrasted with a 'commutation of sentence' which actually modifies it."

26. In this country, there are no statutory provisions dealing with the question of grant of parole. The Code of Criminal Procedure does not contain any provision for grant of parole. By administrative instructions, however, rules have been framed in various States, regulating the grant of parole. Thus, the action for grant of parole is generally speaking, an administrative action. The distinction between grant of bail and parole has been clearly brought out in the judgment of this Court in State of Haryana v. Mohinder Singh to which one of us (Wadhwa,J.) was a party. That distinction is explicit and I respectfully agree with that distinction.

.........xxxxx..................xxxx.........

(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:

Whether non surrendering of a prisoner to the prison authorities after expiry of the period of parole would amount to escape from lawful custody and therefore, ordinarily, such prisoner would not be entitled to be transferred to Open Air Camp, on account of inhibition contained in Rule 3(c) of the Rules of 1972 ?

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

17. The Registrar (Judicial) is directed to place the matter before

the Hon'ble Chief Justice for appropriate orders.

It is made clear that in view of the difference of opinion on

the issue discussed above, we have not considered other

contentions raised on behalf of the petitioners, which shall be

considered after the question referred supra being answered by

the Larger Bench.

                                   (RAMESHWAR VYAS),J                                           (SANGEET LODHA),J
                                    Aditya/-









Powered by TCPDF (www.tcpdf.org)