CHAUHAN, J. - (1.) REPENTING his sins, serving his life imprisonment term, the petitioner, Pappu Khan, sought few gasps of fresh air by pleading for regular parole under Rule 9 of the Rajasthan Prisons (Release on Parole) Rules, 1958 (henceforth referred to as the `parole Rules' ). Involved in a murder case on 25. 03. 1999, the petitioner was convicted and sentenced to life imprisonment vide judgment dated 19. 07. 2002 by the learned Additional District and Sessions Judge (Fast Track) No. 1 Kishangarh Bas.
(2.) ACCORDING to the petitioner so far he has served six years and four months imprisonment. Since, the petitioner was eligible for the regular parole of twenty days under Rule 9 of the Parole Rules, he applied for the same. However, vide order dated 7. 07. 2005 the District Parole Committee was pleased to reject his parole application. Consequently, the writ petitioner before us. Mr. Satya Pal Poshwal the learned counsel appearing for the petitioner, has contended that the petitioner's case for parole has been rejected because of the adverse police report against him. According to the said police report in case, the petitioner were released, the law and order situation would be disturbed. According to the learned counsel the police has mechanically submitted the report. There is no evidence available on record for the police to come to such adverse conclusion against him. Therefore, according to the learned counsel, the Advisory Committee has based its decision on irrelevant consideration. Thus, the order dated 4. 07. 2005 should be quashed. In the other hand, Mr. Bramhanand Sandu the learned Addl. Govt. Advocate has contended that the petitioner had been convicted for having murdered his own uncle. Therefore, there is every likelihood that place would be disturbed because of the petitioner being released on parole. We have heard the learned counsels. Parole has a recent history as part of the military law which were practised in some European countries and in the United States of America. A detenue was released on parole, i. e. , for a limited number of days, so that he could go back and live with his family for the interim period. The emergence of Reformative Theory of punishment in the 20th Century saw a sea change in the Prison System. Prisoners were no longers to be chained and forgotten; they were to be reformed and brought back into the Society. In order to encourage the prisoners to reform themselves during the period of incarceration, certain motivational techniques were introduced in the jail administration. Besides granting remission, besides having open air camps, parole was and is used as a great motivation force. Parole is granted to the convicted prisoners in order to achieve three aims; firstly to encourage the convicted prisoners to change their criminal attitude or mentality and to develop acceptable social behaviour while in imprisonment. Secondly, to keep the family links which might be broken or obliterated because of long period of imprisonment. Thirdly, to ensure that the prisoner is brought back within the society as a peace loving and law abiding citizen. The welfare State cannot afford a large non productive population to be fed and to be looked after. After all, such a large prison population is a heavy burden on the State Exchequer. Therefore, it is also in the interest of the State to reform the prisoners, to teach them techniques and skills which would ensure a source of livelihood to them after they are released from jail. Although fundamental rights of the prisoners are curtailed by incarceration, but the flame of liberty continues to burn even in the dark corners of the prison cells. The Parole Rules emanate from Article 21 of the Constitution of India. It is, indeed, trite to state that Article 21 of the Constitution of India, is the heart of the Constitution. Therefore, while dealing with the parole cases, it is essential to keep in mind the criminological and constitutional philosophy which underlines the Parole Rules.
(3.) CONSIDERING the importance of the reformative theory of the punishment, in 1958 the State of Rajasthan promulgated the Parole Rules. According to these Rules, parole is divided into two categories; firstly, the regular parole which is granted to a convicted prisoner after he has completed certain period for regular parole which in Hindi is referred to as a "hak ki parole". Secondly, Rule 10 A of the Rules, contains the provisions for emergency parole which is granted to the convicted prisoner in case, of death or illness of hear relatives or marriage in his family or his property is threatened by natural calamities. By judicial interpretation the beneficial provisions of Rule 10a of the Parole Rules have also been extended to include cases when the convicted prisoners need to appear for examinations. Rule 13 spells out the philosophy behind Parole Rules when it emphatically states that parole is to be used for teaching good behaviour to the convicted prisoner. Although Rule 13 also states that parole cannot be claimed as of right, but the Parole Rules certainly bestow the right of consideration upon the convicted prisoners. Once, a convicted prisoner has completed one fourth of his sentence and observes good behaviour during this period of incarceration, then he becomes eligible to have his case considered for the first parole of 20 days by the Advisory Committee constituted under the Parole Rules. The Advisory Committee is required to call for report from the Supdt. of Police of the District where the convicted prisoner would be released on parole, to call for the report and the Social Welfare Department and to call for the report of the Superintendent of Jail in which the convicted prisoner is serving his sentence. But, in catena of cases the Hon'ble Supreme Court and this Court have clearly held that the foremost preference is to be given to the report of the Supdt. of Jail. After all, during the period of imprisonment it is the Superintendent of Jail, observes the change in the convicted prisoner. Therefore, it is he who is the best judge to see whether the mental attitude or the conduct of the prisoner has changed. In case, the convicted prisoner is not likely to revert back to his criminal activities, in case the convicted prisoner is likely to lead a peaceful life while on parole, it is only then that the Superintendent of Jail recommends the case of the prisoner for being released on parole. In large number of cases, it is seen that the police generally submits a report mechanically without investigating the consequences of the prisoner release in the area. Such reports generally contain hurried conclusion but not the valid evidence to advice that the prisoner should not be released. Thus, in large number of cases, this Court has clearly stated that the Advisory Committee should not ipsi dixi accept the report submitted by the Police. (Refer to Anil Thakur vs. State of Raj. 2001 (1) RCC 289 and Smt. Sushila Kanwar vs. State of Rajasthan, 1994 RCC 564. ). Despite existence of catena of cases which lay down the criteria which should be considered by the Advisory Board, it is observed by this Court that the Advisory Board is oblivious of the relevant principles laid down by the Hon'ble Supreme Court and also by this Court. It is, indeed, expected that the philosophy, the principles and the relevant factors as enunciated by the judiciary would be kept in mind by the Advisory Board while deciding the cases of convicted prisoners for parole. Since, the Parole Rules emanate from, Article 21 of the Constitution of India, therefore, prisoner's liberty can be deprived of only by following the procedure established by law. However, the Advisory Committee, at times, has scant regard for the law and the case law. Such an attitude and omission result in a large number of writ petitions flooding the High Courts. In an era of Human Rights, one cannot forget the rights of the prisoners. For, every civilization has been judged, not just by its achievements, but more importantly by the way it has dealt with its own under-privileged people and with its minorities. Hence, it is imperative that the Advisory Board must perform its function with due care and with regard to both the law and the judicial principles. ;