- (1.) Heard. Perused the material available on record.
(2.) The convict-petitioner applied for grant of permanent parole. His application has been rejected vide recommendations dated 11.01.2021 (Annexure-4). Aggrieved thereby, the convict has approached this Court through this writ petition for assailing the adverse recommendations.
(3.) The permanent parole has been denied to the convict merely for the reason that he has been convicted for committing heinous crime of gang rape. Law is well settled by a catena of decisions including the Supreme Court judgment in the case of Asfaq vs. State of Rajasthan: AIR 2018 SC (Criminal) 37 that the conviction for a serious or heinous crime by itself cannot operate as absolute bar for denying parole to the prisoner who has otherwise acquired eligibility for release on parole. The issue regarding grant of permanent parole to convicts who have been sentenced to imprisonment for life for such an offence which does not carry death sentence as one of the punishments, was considered by this Court in the case of Smt. Suman Devi vs. State of Rajasthan and Ors. (D.B. Criminal Writs No.430/2018) decided on 19.02.2019, wherein this Court held as below:- "We have heard and appreciated the submissions advanced at bar and have gone through the statutory provision i.e. Rule 9 of the Rules of 1958 and various orders placed on record. Rule 9 of the Rules of 1958 is reproduced herein below for the sake of ready reference :- "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 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 he is not likely to replace 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 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 period 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. Section 433A of Cr.P.C. postulates that:- "Restriction on powers of remission or Commutation in certain cases. Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment." In view of the fact that death sentence is not one of the penalties provided by law for the offence under Section 304B IPC, manifestly, the restriction contained in Section 433A of the Cr.P.C. and the proviso to Rule 9 of the Rules of 1958 would not act to the detriment of the convict Hardat so as to make him ineligible for consideration for grant of permanent parole. The jail authorities have recommended his case for grant of permanent parole noting that his work performance and conduct in Jail is satisfactory. The co-convict Smt. Santosh Devi, who of-course is a woman, has been granted permanent parole by the State Government. The fact mentioned in the additional affidavit that the convict had only served 7 years and 1 month imprisonment till 31.05.2018 and thus, he cannot be considered for grant of permanent parole, does not stand to reasoning because as per Rule 9, referred infra, a convict who has completed with remission, if any, one fourth of his sentence and has availed of first three paroles and his character has been exceedingly well and if he is not likely to relapse in crime, his case can be recommended to the State Government for release on permanent parole. Admittedly, the convict Hardat Singh, has served the required period of sentence and has also availed the first three paroles without a demur. His conduct and work performance are satisfactory. Thus, he has become entitled to be considered for permanent parole in light of the recommendations of the prison authorities as well as the Additional District Magistrate placed on record with the writ petition. The contention of Shri Farzand All, learned Additional Advocate General that the convict would have to serve at least 7 years 9 months of sentence before earning entitlement for permanent parole is not relevant because as per the nominal roll (Annexure-2), the convict had suffered total imprisonment of 8 years, 3 months and 6 months (including remission) upto 15.05.2018. Hence, we have no hesitation in holding that the convict Hardat Singh has definitely undergone the requisite term of imprisonment and has also availed of three regular paroles with good behaviour and his character has been exceedingly well during this period making him compliant of the legal requirement of Rule 9 of the Rules of 1958 so as to be considered entitled to release on permanent parole. In this background, we hereby quash the impugned recommendations dated 14.09.2018 qua the convict prisoner Hardat Singh. We remand the matter back to the State Government who shall objectively reconsider his case for grant of permanent parole under Rule 9 of the Rules of 1958 and pass a reasoned order thereupon within a period of two months from today while keeping in view the observations made above." ;