Ashok Kumar vs State Of Rajasthan
2022 Latest Caselaw 12449 Raj

(1 of 7) [SOSA-549/2022]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Interim Suspension Of Sentence Application (Appeal) No. 549/2022

Ashok Kumar S/o Poonaram, Aged About 30 Years, B/c Bishnoi, R/o Kanasar, Police Station Baap, Dist. Jodhpur. (Presently Lodged At Central Jail, Ajmer)

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent Connected With S.B. Criminal Suspension Of Sentence Application (Appeal) No. 246/2022 Ashok Kumar S/o Punaram, Aged About 30 Years, B/c Bishnoi, R/o Kanasar, Police Station Baap, Dist. Jodhpur. (Presently Lodged At Central Jail, Ajmer)

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. M.L. Bishnoi.

For Respondent(s) : Mr. Abhishek Purohit, AGA.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

18/10/2022

In S.B. Criminal Interim Suspension Of Sentence Application (Appeal) No. 549/2022:-

Heard.

The present interim suspension of sentence application has

been preferred by the applicant-appellant, in which, the appellant

has prayed for temporary suspension of sentence.

Learned counsel for the appellant-applicant has shown the

interim bail order dated 12.06.2020 passed by the learned Special

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Judge, NDPS Cases, Bhilwara in Sessions Case No. 26/2019 (FIR

No.08/2019 lodged at Police Station Hameergarh, District

Bhilwara), whereby the appellant-applicant was granted ten days

interim bail in the present case from 26.06.2020 to 05.07.2020

for his marriage.

Learned counsel for the appellant-applicant, thereafter, has

shown the marriage certificate (in-original) of the present

appellant-applicant Ashok Kumar and his wife Rekha Bhadu.

Learned counsel for the appellant-applicant has produced

the order passed by a Division Bench of this Hon'ble Court in case

of Nand Lal Vs. State & Ors. : D.B. Criminal Writ Petition

No.10/2022, decided on 05.04.2022; upon the said order

being challenged, the Hon'ble Apex Court declined to interfere in

the direction so contained in the order passed by the Hon'ble

Division Bench of this Court and left it open to the petitioner

therein, to raise all his pleas and contentions before the Hon'ble

Division Bench of this Court. Learned counsel has further shown

the order passed by the Hon'ble Division Bench of this Court, at

the Jaipur Bench, in the case of Rahul Vs. State & Ors. : D.B.

Criminal Writ Petition No.428/2022, decided on

14.10.2022; the order dated 14.10.2022 reads as follows:-

"1. The instant writ petition is filed by convict-prisoner Rahul through his wife Smt. Brijesh Devi seeking emergent parole on ground of want of progeny under Rule 11 of the Rajasthan Prisons (Release On Parole) Rules, 2021 read with Article 14 and 21 of the Constitution of India. Petitioner was convicted for the offence under Sections 363, 366 and 376 (3) of IPC and 3/4(2) of POCSO Act and sentenced to 20 years imprisonment vide order dated 13.06.2022 in Sessions Case No. 29/2021.

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2. It is submitted that the petitioner has served more than two years of imprisonment with remission. The petition has been filed through petitioner's wife for releasing him on emergent parole, for want of progeny and conceiving child for the purpose of preservation of lineage, as per religious and cultural philosophies and for humanitarian aspects. The conduct of the petitioner is satisfactory and if not allowed to be released or parole, his rights under Article 14 and 21 of the Constitution of India, will be affected. Learned counsel has relied upon the Division Bench judgment of Nand Lal Vs. State & Ors.: DB. Cri.

Writ Petition No. 10/2022, which has been upheld by the Hon'ble Apex Court, wherein the Division Bench of this Court observed that:-

"The court had ruled that the "right to procreation survives during incarceration" and "is traceable and squarely falls within the ambit of Article 21 of our Constitution". It had then directed the Punjab government to constitute a Jail Reforms Committee, to be headed by a former high court judge. Among other things, this committee was to "formulate a scheme for creation of an environment for conjugal and family visits for jail inmates and identify the categories of inmates entitled to such visits, keeping in mind the beneficial nature and reformatory goals of such facilities".

In view of the fact that the spouse of the prisoner is innocent and her sexual and emotional needs associated with marital lives are effected and in order to protect the same, the prisoner ought to have been awarded cohabitation period with his spouse. Thus, viewing from any angle, it can safely be concluded that the right or wish to have progeny is available to a prisoner as well subject to the peculiar facts and circumstances of each case. Simultaneously, it is also found apposite to hold that the spouse of the convict- prisoner cannot be deprived of his or her right to get progeny.

As an upshot of the observations made herein above, we are of the considered view that though there is no express provision in the Rajasthan Prisoners Release On Parole Rules, 2021 for releasing the prisoner on parole on the ground of his wife to have progeny; yet considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranted by the

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Constitution of India and while exercising extra ordinary power vested in it, this Court deem it just and proper to allow the instant writ petition."

3. Per contra, counsel for the State has opposed the present petition and submitted that the present petitioner was convicted under POCSO Act for offences that are grievous in nature. Learned counsel contends that if the petitioner is released on parole, it would adversely affect the society and there is a possibility of conflict/quarrel between the petitioner and the complainant. Learned counsel further submitted that in Rajasthan Prisons (Release On Parole) Rules, 2021, there is no provision for releasing the petitioner on emergent parole on the ground of want of progeny.

4. Heard the arguments advanced by both the sides and scanned the record of the writ petition.

5. The Division Bench of this court, in Nand Lal (supra), has already dealt with the issue involved in the present petition and held that right or wish to have progeny is available to a prisoner. In the case in hand, considering the peculiar fact that petition is filed by the young wife of the convict, who is issueless and is desirous of retaining/maintaining her marriage with the convict who is incarcerated for a long period of time; considering that petition is filed for having progeny for purpose of preservation of lineage and considering the young age of the convict-petitioner and also relying upon the case of Nand Lal (supra), this Court is inclined to allow the present writ petition and release the convictpetitioner on emergent parole for fifteen days.

6. Accordingly, the instant writ petition is allowed. The convict-petitioner Rahul S/o Shri Vishambhar @ Kalwa shall be released on emergent parole for a period of fifteen days provided he furnishes a personal bond in the sum of Rs. 2,00,000/- along with two surety bonds of Rs. 1,00,000/- each to the satisfaction of the Superintendent, Central Jail, Alwar on usual terms and conditions. The Superintendent, Central Jail, Alwar shall be at liberty to impose other adequate and reasonable conditions to ensure return of the convict-petitioner to the custody after availing the parole. His term of parole shall be computed from the date of his actual release.

7. The parole writ petition is allowed, accordingly."

Learned Additional Government Advocate however, opposes

the submissions made on behalf of the applicant-appellant.

(5 of 7) [SOSA-549/2022]

On examining the factual matrix, this Court finds that the

conduct of the appellant-applicant is satisfactory because while

the applicant-appellant was enlarged on interim bail by the

learned Trial Court below vide order dated 12.06.2020, he abided

by the conditions imposed upon him therein, and had entered into

the marriage with Smt. Rekha Bhadu, while being in the midst of

custody, arising out of the present matter.

This Court observes that, in the peculiar facts and

circumstances of the present case, when the marriage was

solemnized between the applicant-appellant and his wife, at the

instance of the interim bail granted by the learned Trial Court in

the current FIR, and that the same was possible only due to the

interim bail granted by the learned Trial Court for the period of ten

days from 26.06.2020 to 05.07.2020, clearly makes out a case of

the right of the wife to procreate.

The order of the Division Bench of this Hon'ble Court in the

case of Nand Lal Vs. State & Ors. (Supra), upon being

challenged before the Hon'ble Apex Court was left to the Hon'ble

Division Bench of this Court to deal with the matter on its merits

and the order passed by the Hon'ble Division Bench of this Court,

at the Jaipur Bench, in case of Rahul Vs. State & Ors (Supra)

laid down the law regarding right to progeny.

Looking into the peculiar factual matrix of the case, this

Court is satisfied that it is a fit case for the release of the

applicant-appellant, to protect the rights of the wife-Smt. Rekha

Bhadu of the applicant-appellant.

It is noted by this Court that the applicant-appellant, who got

married after his arrest, while being granted interim bail by the

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learned Trial Court below, had no other option previously to

exercise his right of procreation, and thus, the present order is

being passed.

The testing question in this case is whether the appellant and

his legally wedded wife had any opportunity whatsoever to

procreate after their legally wedded marriage was undertaken, or

not, and the clear answer in the present case is that his marriage

was on account of an interim bail, and thus, the appellant did not

have any reasonable opportunity whatsoever, to procreate, and

thus, the answer to the question is 'No'. Thus, his right to

procreate, which he could not have done, in the given facts and

circumstances survives.

Thus, in light of the above discussion, this Court is inclined to

suspend the sentence of applicant-appellant temporarily for a

period of 30 days from the date of his actual release.

In the result, the application for interim suspension of

sentence is allowed and it is ordered that the sentence passed by

learned Special Judge, NDPS Act Cases, Bhilwara in Sessions Case

No.26/2019 vide order dated 09.02.2022 against the applicant-

appellant-Ashok Kumar S/o Poonaram shall remain suspended

for a period of 30 days from the date of his actual release on his

furnishing personal bond of Rs.1,50,000/- with three sound and

solvent sureties of Rs.50,000/- each (i.e. father, mother and

grandfather of the accused-appellant) to the satisfaction of

learned Trial Court that he will surrender before the concerned Jail

Authorities immediately after completion of 30 days of interim

bail.

(7 of 7) [SOSA-549/2022]

Let the matter be again on 15.12.2022 for compliance of

this order.

In S.B. Criminal Misc Suspension Of Sentence Application

(Appeal) No. 246/2022: -

List the matter on 15.12.2022.

(DR.PUSHPENDRA SINGH BHATI), J.

155-156-/Jitender//-

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