Madan @ Madan Lal vs State Of Rajasthan
2023 Latest Caselaw 4053 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Writ Petition No. 517/2023

Madan @ Madan Lal S/o Sh. Kheta Ram, Aged About 55 Years, At Present Lodged In Open Sir Camp, Sanganer, Jaipur Through His Brother Sh. Rameshwar S/o Sh. Kheta Ram, Age About 50 Years, R/o Samdari Road, Gandhipura, P.s. Balotra, Dist. Barmer.

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. The Dist. Collector, Barmer.

3. The Superintendent, Central Jail, Jaipur.

----Respondents

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

Mr. Sunil Dutt Chavariya.

For Respondent(s) : Mr. Anil Joshi, G.A. - cum - AAG.

HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE DR. JUSTICE NUPUR BHATI

Order

04/05/2023

1. This petition has been filed by the petitioner seeking second

thirty days' parole from the actual date of release.

2. Submissions have been made that the petitioner was

convicted on 14.02.2019 and thereafter, he has been sent to Open

Air Camp. The petitioner was granted benefit of first twenty days'

parole, whereafter, when the petitioner applied for second thirty

days' parole despite being entitled for the same under the Rules of

1958, the application has not been forwarded to the competent

authority.

3. A reply to the petition has been filed by the State, inter-alia,

indicating that under the Rules of 2021 as the petitioner has not

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served half sentence, he is not entitled to second parole of thirty

days.

4. Learned counsel for the petitioner while referring to

judgment in Laxman Singh v. State of Rajasthan & Ors. : D.B.

Criminal Writ Petition No.180/2022 decided on 27.03.2023 made

submissions that the case of the petitioner is required to be

considered under the Rules of 1958 and not forwarding of his

application under the Rules of 2021 is not justified, as the

conviction of the petitioner took place prior to coming into force of

the Rules of 2021.

5. In the case of Laxman Singh (supra), this Court came to the

following conclusion:

"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.

(3 of 4) [CRLW-517/2023]

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, 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.

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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 the case of the petitioner keeping in view the provisions of Rules 1958 and the fact that petitioner was accorded parole on several occasions earlier.

Needful may be done by the Committee within a period of three weeks from the date of this order."

6. In view of what has been laid down in the case of Laxman

Singh (supra), the rejection of petitioner's application by the

respondents, based on Rules of 2021, cannot be countenanced.

7. Consequently, the petition filed by the petitioner is allowed in

part. The respondents are directed to forward the case of the

petitioner to the District Parole Committee to consider the case of

the petitioner keeping in view the provisions of Rules of 1958 and

the fact that the petitioner was accorded parole on one occasion

earlier. Needful be done by the Committee within a period of four

weeks from the date of this order.

(DR. NUPUR BHATI),J (ARUN BHANSALI),J 15-Rmathur/-

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