Laxman Singh vs State Of Rajasthan ...
2023 Latest Caselaw 2449 Raj

Citation : 2023 Latest Caselaw 2449 Raj
Judgement Date : 27 March, 2023

Rajasthan High Court - Jodhpur

Laxman Singh vs State Of Rajasthan ... on 27 March, 2023

Bench: Arun Bhansali, Rajendra Prakash Soni

[2023/RJJD/007406]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Writ Petition No. 180/2022

Laxman Singh S/o Shri Bheru Singh, Aged About 42 Years, At Present Lodged In Open Air Camp Sirohi Through His Wife Smt. Dinesh Kanwar W/o Shri Laxman Singh Aged About 40 Years R/o Vill. Jadhan Ps Shivpura Dist. Pali

----Petitioner Versus

1. State Of Rajasthan, Deptt. Of Home Jaipur

2. The Dist. Collector, Pali

3. The Dy Superintendent, Dist. Jail Sirohi

----Respondents

For Petitioner(s) : Mr. Kalu Ram Bhati.

For Respondent(s) : Mr. Anil Joshi, GA cum AAG.

Mr. Pallav Sharma.

Mr. Rajat Chhaparwal.

HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI

Order

27/03/2023

This writ petition has been filed by the petitioner aggrieved

of the order of the Parole Committee dated 02.11.2021 (Annex.1),

whereby, his application for regular parole of 40 days has been

rejected.

It is inter-alia indicated that the petitioner moved an

application on 06.07.2021 seeking regular parole of 40 days. The

Parole Committee in its meeting dated 02.11.2021 came to the

conclusion that as the petitioner has been inter-alia convicted

under Section 364 IPC in view of Provision of Rule 16 (2) (b) of

[2023/RJJD/007406] (2 of 5) [CRLW-180/2022]

the Rajasthan Prisoners Release on Parole Rules, 2021 ('Rules

2021'), he was not entitled to the regular parole.

Feeling aggrieved, the present petition has been filed.

Learned counsel for the petitioner made submissions that as

the petitioner was convicted on 17.07.2011, the Rules 2021 would

have no application, as the petitioner's application would have to

be dealt with under the provisions of Rajasthan Prisoners Release

on Parole Rules, 1958 ('Rules 1958'). Under Rule 14 of Rules 1958

there is no absolute bar on grant of regular parole and indicated

that the petitioner was granted parole on several occasions earlier.

Reliance has been placed on orders in Hitesh @ Bavko

Shivshankar Dave Vs. State of Gujrat: Writ Petition (Criminal)

No.467/2022, decided on 24.01.2023 by Hon'ble Supreme Court

and Anil Kumar @ Kaley Vs. State of Rajasthan & Ors.: D.B.

Criminal Writ Petition (Parole) No.381/2022, decided on

02.02.2023 by the Jaipur Bench.

Learned AAG opposed the application.

It is inter-alia submitted that as the application was made

after the Rules 2021 came into force on 30.06.2021, the same is

required to be dealt under the Rules 2021, wherein, under Rule 16

(2) (b), there is a bar in granting parole and as such, the

application has been rightly rejected.

Further submissions have been made that even under the

Rules 1958, the right to get parole is not absolute and, therefore

also, the petitioner is not entitled to any relief and the petition

deserves dismissal.

We have considered the submissions made by counsel for the

parties and have perused the material available on record.

[2023/RJJD/007406] (3 of 5) [CRLW-180/2022]

The facts are not in dispute, wherein, the petitioner was

convicted on 17.07.2011 and in the past he has been granted

benefit of parole on several occasions.

The present application has been rejected by the District

Parole Committee only on account of provisions of Rule 16 (2) (b)

of the Rules 2021, wherein, it is inter-alia provided that the

prisoners convicted under Section 364 IPC shall not be eligible for

release on parole.

The plea raised is that the Rules 2021, in view of the fact

that petitioner was convicted on 17.07.2011 and the Rules came

into force on 30.06.2021, would have no application.

Hon'ble Supreme Court in the case of Hitesh (supra) inter-

alia observed as under:-

"4 Following the law laid down by this Court, in determining the entitlement of a convict for premature release, the policy of the State Government on the date of the conviction would have to be the determinative factor. However, if the policy which was prevalent on the date of the conviction is subsequently liberalised to provide more beneficial terms, those should also be borne in mind."

(emphasis supplied)

After making the above observations, the Court inter-alia

came to the following conclusion:-

"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 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 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,

[2023/RJJD/007406] (4 of 5) [CRLW-180/2022]

following a money dispute, is held to be a ground for rejection of his 5 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.

16 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."

(emphasis supplied)

It can be seen that the Hon'ble Supreme Court came to the

conclusion that policy of the State on the date of conviction would

be the determinative factor and in case the policy is subsequently

liberalized, the same would be taken into consideration while

dealing with the application of premature release by the

Authorities.

A Division Bench of this Court at Jaipur Bench in the case of

Anil Kumar (supra) following the judgment in the case of Hitesh

(supra) inter-alia came to the following conclusion:-

"10. In view of judgment of Hitesh @ Bavko Shivshankar Dave vs State of Gujarat(supra) and as per the Rules prevalent at the time of his conviction, petitioner is entitled to be released on permanent parole. Also, taking note of the fact that co-accused have been given benefit of permanent parole, the writ petition(parole) deserves to be allowed."

In view of the above, the rejection of petitioner's application

by the District Parole Committee relying on the provisions of Rules

2021 cannot be sustained.

[2023/RJJD/007406] (5 of 5) [CRLW-180/2022]

Insofar as, the Rules 1958 are concerned, the right to get

parole under Provisions of Rule 14 of the said Rule 1958, in case,

where a person has been convicted for the offence inter-alia under

Section 364 IPC is not absolute.

In view of the above, the petition filed by the petitioner is

partly allowed. The order dated 02.11.2021 (Annex.1) passed by

the District Parole Committee qua the petitioner is set aside.

The matter is remanded back to the Committee to consider