PRAKASH TATIA, J. - (1.) In spite of provision for release of the prisoners on parole periodically and ultimately on permanent parole and in spite of provision for shortening of sentence of the prisoners, the prisoners are lodged in jail beyond the period of 14 years and we found some of the prisoners behind bar since last 20 years. Therefore, the important issue has come up before consideration of this Court in these writ petitions. Issue involved is that whether the prisoner who has completed the requisite period of sentence and has not availed the benefit of first, second and third parole or any of the above parole in terms of Rule 9 of the Rajasthan Prisoners Release on Parole Rules, 1958(for short "the Rules of 1958"), then cases can be considered for release on permanent parole under rule 9 of the Rules of 1958. The contention of the State is that as per rule 9, only a prisoner who has been released on first parole for 20 days, then on second parole for 30 days and thereafter on third parole for 40 days alone, is a prisoner whose case can be considered for release on permanent parole, as the rule says that "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 State Committee for permanent release on parole....". Whereas the contention of the learned counsels for the petitioners is that the parole is a benefit to the prisoner with clear aim and object that prisoner should be given opportunity to re-settle in the society by giving him opportunities of living with hjis family and or in the society. Even in a case where person has been convicted for life term, he may also be set free to live with his family and in the society. The parole rules no where provides any penal clause for punishing the prisoner for not availing the benefit of release on parole periodically as provided in rule 9 of the Rules of 1958. It is also submitted that if a prisoner is not availing the benefit of release on parole periodically under rule 9, then it is because of his ignorance about his rights in seeking his release under Rules of 1958 as well as such lapse can be attributed to the jail authorities and the Government in providing the benefit of law to the prisoners as it is also duty of the jail authorities and Social Welfare Department of the Government to make the prisoners aware of their right and benefits under beneficial provisions so that the prisoners may be encouraged to improve their conduct. The learned counsel for the petitioners relied upon various judgments which we shall be considering hereinafter.
(2.) We considered the submissions advanced by learned counsel Shri Mahesh Bora, J.S. Bhati and Shri K.R. Bhati and considered the relevant law. Before examining the law of parole in force in India, we may look into the meaning and history of parole. The word "parole" has not been defined as such in the Rules of 1958 which were framed in exercise of power conferred under sub-section (6) of Section 401 of the Code of Criminal Procedure, 1898(as it was in force at that time and amended by subsequent Act of 1973. We are benefited by the information technology as learned counsel Shri Nishant Bohra during the course of argument, with the help of his net connection available in the mobile telephone, drew our attention to the definition of the parole given in the Wikipedia, the free encyclopedia available on net, wherein history of parole has been given from several reference quoted from large number of books and research work. As per the definition of parole given in the Wikipedia, the parole originated from the French word parole and it says:- "All of the meanings originated from the French parole ("voice", "spoken word"). Following its use in late-resurrected Anglo-French Chivalric practice, the term became associated with the release of prisoners based on prisoners giving their word of honor to abide by certain restrictions. One proposed reform is that parole bonds be used to incentivize defendants not to re-offend."
(3.) It also says that parole should not be confused with probation, as parole is serving the remainder of a sentence outside the prison, where probation is given instead of a prison sentence and as such tends to place more rigid obligations upon the individual serving the term. It is the supervised release of a prisoner before the completion of their sentence in prison. The parole is not commutation of sentence, as parolees even when they are released on parole are serving their sentences and are required to be returned to the prison if they violate the conditions of their parole. As per the history of parole is concerned, as per Wikipedia, (Web:http://en.wikipedia.org/wiki/parol) Alexander Maconochie, a Scottish geographer and captain in the British Royal Navy, introduced the modern idea of parole when, in 1840, he was appointed superintendent of the English penal colonies in Norfold Island, Australia. He developed a plan to prepare them(prisoners) for eventual return to society that involved three grades. The first two consisted of promotions earned through good behavior, labor, and study. The third grade in the system involved conditional liberty outside of prison while obeying rules. A Violation would return them to prison and starting all over again through the ranks of the three grade process. It appears that above may be theme behind the Rules of 1958 and in exercise of powers conferred by sub-section 6 (6) of Section 401 of the Code of Criminal Procedure, 1898 (Old Act), the Government of Rajasthan framed the Parole Rules known as Rajasthan Prisoners Release on Parole Rules, 1958. Rule 9 of the Rules of 1958 is more relevant which is as under:- "9. Parole period.- A prisoner, who has completed with remission, if any (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 State Committee for permanent release on parole on such conditions as deemed fit by the Superintendent Jail and the District Magistrate concerned; the chief condition among them being 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 case 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 of his sentence; Provided that 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." As per rule 9 of the Rules of 1958, a prisoner who has completed with remission, if any, one-fourth, of his sentence and is of good conduct in the jail, can be released on paroles, which are first parole for 20 days, second parole for 30 days and third parole for 40 days. As per rule 10, second and subsequent parole can be granted only after 11 months have elapsed from the date of the expiry of the period of release on parole immediately preceding. Rule 9 itself also provides that after three paroles, the case of prisoner can be considered for release on permanent parole. However, a special proviso has been made under rule 9 to deal with subject of permanent parole for the person who has been sentenced to imprisonment for life and the proviso requires that for once becoming eligible for permanent parole, he should serve 14 years of imprisonment excluding remission but including period of detention passed during enquiry or trial. Therefore, the prisoner's case can be considered for release on first parole for 20 days, second parole for 30 days and third parole for 40 days if he has completed with remission, if any, 1/4th of his sentence subject to his good conduct in the jail. As per rule 10 of the Rules of 1958, second and subsequent release on parole can be made only if 11 months have elapsed from the date of expiry of the period of release on parole immediately proceeding. As per plain reading of the rule, if the prisoner has availed the benefit of three paroles and his conduct has been found to be exceedingly well and his conduct has been found to be of such nature that he is not likely to relapse into crime, then his case can be recommended to the State through the State Committee for permanent release on parole, however, on the condition which may be prescribed by the Superintendent of jail and the District Magistrate concerned. It is provided in the Rule 9 itself that the main condition which may be imposed for release of the prison on permanent parole shall be 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 imposed upon him by reason of his commission of offence committed during probation period. It will be worthwhile to mention here that it is specifically provided in rule 9 itself that in case permanent release on parole prayer of a prisoner is rejected, then the prisoner becomes eligible for release on parole for 40 days every year for remaining period of his sentence. Meaning thereby, a prisoner whose character has not been found exceedingly well even then he can be released on parole for 40 days every year after rejection of his prayer for permanent parole.;