Rajasthan High Court - Jodhpur

Heeralal vs State Of Rajasthan ... on 14 December, 2023

Bench: Manindra Mohan Shrivastava, Rajendra Prakash Soni

[2023:RJ-JD:43755-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
               D.B. Criminal Writ Petition No. 1828/2023

 Heeralal S/o Shri Dalla, Aged About 47 Years, At Present Lodged
 In Central Jail, Udaipur, Through His Wife Pushpa Devi W/o Shri
 Heeralal, Age About 40 Years, R/o- Morchana Mahia, P.s.
 Rajnagar, District Rajsamand.
                                                                       ----Petitioner
                                       Versus
 1.      State Of Rajasthan, Department Of Home. Jaipur.
 2.      The District Collector, Rajsamand.
 3.      The Superintendent, Central Jail, Udaipur.
                                                                    ----Respondents


 For Petitioner(s)           :     Mr. Kalu Ram Bhati
 For Respondent(s)           :     Mr. Anil Joshi, AAG with
                                   Mr. Rajat Chhaparwal
                                   Mr. Pallav Sharma


HON'BLE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
            HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI

Order Reportable 14/12/2023

1. Heard.

2. The petitioner herein was convicted for commission of

offences punishable under Section 6 of POCSO Act and sentenced

to life imprisonment by the trial court vide judgment dated

04.07.2016 in Sessions Case No.84/2014. The judgment of

conviction and sentence was affirmed in appeal also.

3. After having successfully availed three parole, to which the

petitioner was legally entitled to, he applied for grant of

permanent parole under Rule 9 of the Rajasthan Prisoners Release

on Parole Rules, 1958, (hereinafter referred to as 'the Rules of

1958') (which were applicable on the date of conviction).

5. However, the application has been rejected on the ground

that in view of proviso to Rule 9 of the Rules of 1958 inserted vide

[2023:RJ-JD:43755-DB] (2 of 8) [CRLW-1828/2023]

Notification dated 01.06.1994, benefit of permanent parole after

completion of 14 years of jail sentence would not apply as death

sentence has been provided as the maximum sentence which

could be imposed under Section 6 of the POCSO Act.

6. Learned counsel for the petitioner would submit that the

proviso to Rule 9 of the Rules of 1958 was inserted by way of an

amendment in the year 1994. The date on which the conviction

was ordered i.e. 04.07.2016, as on that day, the maximum

sentence which could be awarded for commission of offence under

Section 6 of POCSO Act was life imprisonment. It is only vide an

amendment of Section 6 vide Act of 25 of 2019 under Notification

dated 16.08.2019 that maximum sentence of death was provided.

Therefore, it is argued that the said provision could not be applied

to deny the benefit of permanent parole under proviso to Rule 9 of

the Rules of 1958.

7. He would submit that the principles which were applied by

Hon'ble the Supreme Court in the case of Hitesh @ Bavko

Shivshankar Dave Vs. State of Gujarat: Writ Petition

(Criminal) No.467/2022, decided on 24.01.2023, while holding

that the parole rules applicable would be those which were

imposed on the date of conviction, are equally applicable in the

present case. On the date of conviction, the proviso did not bar

petitioner's application for grant of permanent parole because on

that day, maximum sentence which could be imposed was life

imprisonment as provided under Section 6 (as stood without

amendment) and subsequent amendment in Section 6 of the

POCSO Act now bars grant of permanent parole by virtue of the

proviso to Rule 9 of the Rules of 1958.

[2023:RJ-JD:43755-DB] (3 of 8) [CRLW-1828/2023]

8. The subsequent amendment in proviso, if applied in the case

of the present petitioner, that would amount to applying

retrospectively, the amendment in Section 6 of the POCSO Act. In

the case of the petitioner, conviction was ordered on 04.07.2016,

prior to substitution of Section 6 in the POCSO Act.

9. Per contra, learned State counsel would argue that the

petitioner applied for grant of permanent parole on 19.10.2023.

The law applicable on that day under proviso to Rule 9 of the

Rules of 1958 did not entitle the petitioner because by the time he

applied for permanent parole under Rule 9 of the Rules of 1958,

Section 6 of the POCSO Act underwent amendment w.e.f.

16.08.2019. Therefore, while considering eligibility for grant of

permanent parole, the proviso has to be read according to the

penal provisions which were applicable on the date when the

application for grant of parole was submitted.

10. The amended proviso would apply in the case of the

petitioner as if he was convicted for commission of offence which

was punishable with death but only life imprisonment was

imposed.

11. We have heard learned counsel for the parties and gone

through the record of the case.

12. It is not in dispute that the petitioner was tried and convicted

for commission of offence under Section 6 of the POCSO Act vide

judgment of conviction and order of sentence dated 04.07.2016.

13. On the day, when the petitioner was convicted, commission

of offence under Section 6 of the POCSO Act provided for

punishment as below:-

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"[6. Punishment for aggravated penetrative sexual assault.-- (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.]"

14. This provision which existed on the date of conviction clearly

shows that the maximum sentence which could be awarded for

commission of offence under Section 6 was life imprisonment and

not death sentence.

15. Rule 9 of the Rules of 1958 which provides for permanent

parole reads as under:-

"9. Parole period - A prisoner, who has completed with remission, if any, 2 [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 3 [State Committee] for permanent release on parole on such conditions as deemed fit by the Superintendent Jail and

[2023:RJ-JD:43755-DB] (5 of 8) [CRLW-1828/2023]

the District Magistrate concerned; the chief condition among thembeing 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.

[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.] [9A. 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.]"

16. On its plain reading, it is clear that an exception has been

carved out by way of proviso inserted to Rule 9 which provides

that in the case of prisoners who have been sentenced to

imprisonment for life, for an offence for which death penalty is one

of the punishment provided by law or who have been sentenced to

[2023:RJ-JD:43755-DB] (6 of 8) [CRLW-1828/2023]

death but this sentence has been commuted under Section 433

Cr.P.C. into one of the life imprisonment shall not be placed before

the State Committee for permanent release on parole unless he

has served 14 years of imprisonment, excluding the remission but

not including period of detention passed during inquiry,

investigation or trial.

17. It is also pertinent to mention here that the proviso to Rule 9

itself was added by way of amendment w.e.f. 01.06.1994. The day

on which the petitioner was convicted, the aforesaid proviso did

not come in the way of the petitioner in claiming permanent

parole in accordance with the provisions contained in Rule 9 of the

Rules of 1958 because on the day of his conviction, the offence for

which the petitioner was sentenced to life imprisonment, was not

one for which death penalty was one of the punishment provided

by law.

18. Hon'ble the Supreme Court in the decision of Hitesh @ Bavko

Shivshankar Dave (Supra) has clearly held that the law with

regard to the grant of parole which was in force on the date of

conviction, would continue to apply. That was the principle which

was applied by Hon'ble the Supreme Court to come to such

conclusion which reads as follows:-

"15 Be that as it may, we are of the considered view that the circumstances which have been set out in the earlier part of this order order should merit fresh consideration by the 3 State Government. Since the grant of premature release is essentially an executive function relatable to Article 161 of the Constitution, we are of the view that it would be appropriate to direct that the matter should be re-evaluated bearing in mind

[2023:RJ-JD:43755-DB] (7 of 8) [CRLW-1828/2023]

all the relevant circumstances some of which have been noted above. There is merit in the submission which has been urged on behalf of the petitioner that if the fact that the petitioner was involved in a murder, following a money dispute, is held to be a ground for rejection of his application for premature release, he would be effectively debarred from seeking premature release at any point of time in the future though the coaccused involved in the same crime have since been released. It merits emphasis that this is not a ground for rejection in the policy of 9 July 1992. In the circumstances, we direct the competent authority of the State Government to reconsider the application of the petitioner for the grant of premature release after duly applying its mind to the relevant facts and circumstances, including those which have been noted above. The application shall be considered in accordance with the policy document dated 9 July 1992 which held the field on the date of the conviction. This exercise shall be completed within a period of two months."

19. The aforesaid principles will equally apply in the present case

also. Since, the date on which the judgment of conviction and

order of sentence was passed, Section 6 of the POCSO Act did not

provide for death penalty as one of the sentences, therefore, the

proviso to Rule 9 would not come in the way of the petitioner in

claiming permanent parole provided he is otherwise eligible to

claim the same under other provisions of the parole Rules of 1958.

20. If the submission of learned State counsel is accepted, then

in that case, the provision of parole Rules as contained in Rule 9

will be required to be applied as if on the date of commission of

offence i.e. on 04.07.2016, Section 6 of the POCSO Act provided

[2023:RJ-JD:43755-DB] (8 of 8) [CRLW-1828/2023]