PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner is a convict prisoner and has preferred the present petition for grant of permanent parole.
(2.) 1 Learned counsel for the petitioner submits that the petitioner was convicted by the learned Sessions Judge, Balotra for offence under Sections 302 and 341 of IPC vide judgment dated 30.4.2013 and sentenced to undergo imprisonment for life. The petitioner filed Criminal Appeal No.882/2013 before this Court which was decided on 6.10.2017 and his conviction for offence under Section 302 IPC was substituted by Section 304 Part-I IPC and his sentence was reduced from life imprisonment to 10 years R.I. 2. 2 Learned counsel for the petitioner submits that the petitioner was granted first parole by the Collector, Barmer vide order dated 12.10.2015. The petitioner was not able to furnish surety bonds and, therefore, he was ordered to be released by this Court vide order dated 27.1.2016 upon furnishing personal bond and 1 surety bond. Thereafter, the petitioner was granted second parole by the Collector, Barmer vide order dated 7.9.2017. The petitioner faced the same situation and was ultimately ordered to be released by this Court vide order dated 13.4.2018 upon furnishing personal bond. 2. 3 Learned counsel for the petitioner submits that the conduct and behaviour of the petitioner in jail was satisfactory and after availing two paroles, has surrendered in time. There is no adverse remark by the Social Welfare Department and the police as such. Learned counsel for the petitioner submits that the petitioner's application for permanent parole has been recommended by the respondents on the ground that he has availed third parole. The grant of 2nd parole on 13.4.2018 bars 3rd parole till 11 months. 2. 4 Learned counsel for the petitioner has relied upon the Division Bench judgment of this Court in Suraj Giri v. State of Raj. and Ors. in 2011 WLC (Raj.) UC 4 , relevant paras 20 and 21 whereof read as follows:- "20. After considering the law on parole and aims and objects behind making provision for release of prisoner on parole, we are of considered opinion that non-availing of three paroles or any of these paroles by the prisoner itself is a ground for refusal of permanent parole. Our view finds support from the judgments referred above that normally there cannot be punishment for availing the benefit under the beneficial legislation unless so is provided by law. It is also settled law that if the punishment is provided for taking benefit of law then the court cannot and should prescribe and give punishment to any person who has availed the benefit of beneficial law. Therefore, if prisoner who failed to avail the benefit of first parole, second parole and third parole, at the most, cannot get the benefit of first parole, second parole and the third parole by virtue of expiry of term of his sentence and he cannot claim any compensation for non-releasing of such prisoner on parole because of his own fault or because of the lapses on the part of the jail administration, if it is there. So far as permanent release on parole is concerned, it cannot depend upon the prisoner's availing or non-availing the benefit of first, second and third parole and the prisoner can show his behaviour while serving sentence in prison to be of standard on the basis of which, the prisoner can be released on permanent parole which may be of such standard as it would have been of the standards if prisoner would have been released on parole and lived outside the prison where he may have shown while on parole. In such cases the prisoner's character and conduct within jail will be relevant. In case, he because of his ignorance or because of lapse on the part of jail authorities of bringing in the knowledge of the prisoner about his right under Rule 9, missed the opportunity to avail the benefits of first, second and third or any of the above parole but because of his fault then such person can be denied the benefit under the Rules of 1958. The prisoner whose case has been considered for release on parole and if is found eligible for grant of parole, his case stands on different footing. It is true that as per Rule 3, application is required from the Petitioner for his release on parole and Rule 3 is very relevant and is required to be quoted here. Rule 3 of the Rules of 1958 is as under: "3. Application for release on parole.- A prisoner sentenced to imprisonment for less than one year may, subject to exceptionally good behaviour, be allowed by the Superintendent of Jail, in which he is confined, to submit application for parole in triplicate in Form 1." 21. Rule 3 of the Rules of 1958 says that application for release on parole is required from the prisoner who has been sentenced to imprisonment for less than one year. But Rule 9 is required to be given effect to by the jail authorities by keeping in mind that the prisoner is in disability and is under the care of the said authorities. The aim and object behind framing the Rules of 1958 are very important because of simple reason that after the life, the liberty is most important right of a person and if one is entitled to or can be given liberty even for short period, then such liberty cannot depend upon procedural formalities of moving application and seeking liberty, particularly when liberty has been taken away of such person (though, in accordance with law) or is under control of some authority who has lawful right to restrict the liberty of a person as in the case, after conviction of a person. It is more important because of the reason that in spite of the fact that persons are lodged in prison because they committed crime and some of the crimes may be of very heinous nature and the law framers were conscious of the fact that some offenders may be lightly released on parole, yet they made provision in the Rules of 1958 by enacting Rule 14 by using liberal language for release of offenders who have committed heinous crimes and provided that the classes of prisoners mentioned in Sub-clauses (a) to (d) ordinarily will be eligible for release on parole. The law framers have prescribed total ban on the release on parole of prisoners who have committed heinous offences referred under Clauses (a) to (d) under Rule 14. This also suggests towards the intention of the law framers that even the penal law should be reformative in nature so as to reform the person and to achieve the object of law to punish the offender with clear aim and object to reform the offender so that he can adjust and settle in the society again and may be given more opportunities to interact with his family members and society." 2. 5 Learned counsel for the petitioner submits that permanent parole in accordance with the aforesaid precedent law cannot be rejected only on the ground that the petitioner has availed the third parole.
(3.) 1 Learned counsel for the respondents has, however, relied upon Rules 9 and 10 of the Rajasthan Prisoners Release on Parole Rules, 1958, which read as under : "9. 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 Ist 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 Ist 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 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 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, 1973 into one of life imprisonment shall 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. 10. Once in eleven months. - No second and subsequent release on parole shall be made unless eleven months have elapsed from the date of the expiry of the period of release on parole immediately preceding." 3. 2 Learned counsel for the respondents submit that Rule 9 requires that a prisoner, who has completed one-fourth of his sentence, he becomes entitled to Ist parole for 20 days, 2nd parole for 30 days and third parole for 40 days. If the prisoner has behaved well in each of the paroles and his character has been exceedingly well, his case may be recommended to the Government through the State Committee for permanent release on parole. Learned counsel for the respondents, however, submits that since the petitioner has been granted third parole under Rule 9, he is entitled to be considered for permanent parole.;