Rahul S/O Shri Vishambhar @ Kalwa vs State Of Rajasthan
2022 Latest Caselaw 6659 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               D.B. Criminal Writ Petition No. 428/2022

Rahul S/o Shri Vishambhar @ Kalwa, Aged About 22 Years, R/o
Village Hanipur, Police Station And Tehsil Kathumar, Distt. Alwar
(Raj.) ( At Present In Central Jail Alwar) Through His Wife Brijesh
Devi W/o Rahul, Aged About 25 Years, R/o Village Hanipur, Police
Station And Tehsil Kathumar, District Alwar (Raj.) 321605
                                                                     ----Petitioner
                                    Versus
1.     State    Of   Rajasthan,        Through         The       Secretary   Home,
       Secretariat, Jaipur.
2.     The District Magistrate, Alwar.
3.     Superintendent Central Jail, Alwar
                                                                  ----Respondents

For Petitioner(s) : Mr. Vishram Prajapati, Adv. For Respondent(s) : Mr. Javed Choudhary, AGA

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE SAMEER JAIN

Order

14/10/2022

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.

2. It is submitted that the petitioner has served more than

two years of imprisonment with remission. The petition has been

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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

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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 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 convict-

petitioner on emergent parole for fifteen days.

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                                   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 covict-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.

                                    (SAMEER JAIN),J                                                   (SANDEEP MEHTA),J

                                   Pooja /40









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