MADAN , J. - (1.) THE case of the petitioner in short is that petitioner's husband Shri Radhey Shyam was convicted by the learned Sessions Judge, Jaipur for offence punishable under Section 302 IPC and was sentenced to undergo imprisonment for life vide the order/judgment dated 11. 10. 1994. He is presently ser-ving his sentence in Central Jail, Jaipur. THE petitioner has sought the premature release of her husband on the grounds inter-alia that he has served more than six & half years of his actual sentence in jail and, therefore, he was recommended earlier by the jail authorities for his premature release as he fulfills all the requisite requirements for his premature release. THE petitioner's further case is that the Advisory Board which was constituted earlier by the State Government had without application of mind rejected the case of the convict without assigning any reason. In order to appreciate the contentions of the learned counsel for the petitioner, it is appropriate to refer to the Rules 9,10 and 12 of the Rajasthan Prisoners Release on Parole Rules, 1958 for short "the Rules of 1958" which reads 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 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 not likely to relapse into crime, his case may be recommended to the Go-vernment through the 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. " "10. 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. 10a (1) Notwithstanding the provisions of rules 9 and 10, in emergent cases, involving humanitarian considerations, viz. (1) critical condition on account of illness of any close relations i. e. father, mother, wife, husband, children, brother or unmarried sister; (2) death of any such close relation, and (3) serious damage to life or property from any natural calamity, a prisoners other than those falling in any one or more may of the clauses mentioned in Rule 14; could be released on parole for a period not exceeding 7 days by the Superintendent of the Jail and for a period exceeding 15 days by the Inspector General of Prisons, on such terms and conditions as they may, consider necessary to impose for the security of the prisoner in-cluding a guarantee for his return to the Jail, acceptance or execution whereof would be a condition precedent to the release of such a prisoner on parole. (2) A copy of the order for release of prisoners on parole shall be endorsed to the next higher authority giving full circumstances under which the parole has been allowed. " "12 Parole period regarded as special remission period of parole may be regarded as special remission sanctioned by the Government under section 401 of the Act. "
(2.) ON consideration of the above rules, what emerges for our consideration is that the convict who applies for his premature release does not have an absolute vested right to claim the same. It is upto the discretion of Advisory Board to recommend or not to recommend the premature release of a convict since the same is subject to fulfillment of the conditions stipulated under the rules. What is required of the Advisory Board is to carefully scrutinise and consider the material placed before it, and also to examine objectively the reports of the law enforcing agency particularly, the conduct and character of the convict who is recommended for premature release before arriving at the decision which would be dependent upon over all assessment of the matter by the Advisory Board. ON consideration in accordance with rules, the Advisory Board may in appropriate cases recommend the release of a convict prematurely, subject to imposition of any condition or stipulation as it may deem just and proper to impose upon facts and circumstances of each particular case. It is nevertheless obligatory on the State Government as per Rule 10 & 10a (supra) to consider the recommendations of the Advisory Board before directing premature release of a convict and further under Rule 12, the appropriate Authority shall order release of the prisoner having regard to all the facts and circumstances of the case on the basis of over all assessment of the matter and recommend his premature release if he is entitled to be so released on the basis of his having earned any special remission sanctioned by the appropriate Authority under Sec-tion 401 of the Act. The respondents on being noticed by this Court have stated in their reply that the petitioner had earlier prayed for premature release of her husband vide D. B. Civil Writ Petition No. 2936/98 which was dismissed as withdrawn. Thereafter, the petitioner has again moved this Court by way of instant writ petition on the same grounds by contending inter-alia that the Advisory Board which was constituted earlier had not taken all aspects of the matter into consideration. During the course of hearing, learned counsel for the respondents has placed for perusal of the court a copy of the report dated 20. 7. 1998 of the Advisory Board from the perusal of which, it is apparent that Division Bench of this Court in D. B. Criminal Appeal No. 515/94 vide its order dated 21. 1. 1998 converted the conviction of accused-Radhey Shyam from Section 302 IPC to Section 304 Part-I IPC and was sentenced to undergo 10 years rigorous imprisonment and fine of Rs. 2000/-and in default 6 months further R. I. The period of detention actually undergone by the accused so far including the period of remission earned by way of his good conduct in jail amounts to 6 years, 5 months and 28 days as on 20. 7. 1998. From the perusal of the said report, it is further apparent that nothing adverse has been reported by the detaining authority against the convict-Radhey Shyam. Similar controversy had arisen in the matter of Amar Chand Goyal Vs. State of Rajasthan & Ors. (1) in D. B. Civil Writ Petition No. 2505/98 decided on 16. 7. 1998. The Division Bench of this Court while disposing of the writ petition was of the view that if the petitioner is entitled to the benefit of the provisions of amended Notification dated 15. 10. 1990 on the basis of which he is entitled to claim reduction as against his actual term of sentence served by him in jail, the vires of the said notification are not open to challenge as being arbitrary or un-constitutional. It was further observed that if the case of the petitioner for his premature release falls within the ambit of Rules of 1958, then he is at liberty to apply to the appropriate authorities subject to the fulfillment of conditions stipulated in Rules 9 & 10 of the Rules of 1958 and if the petitioner is entitled to be released on permanent parole, his case may be so considered by the State Government.
(3.) AS a result of the above discussion, we are of the view that it is not open to the petitioner to challenge the detention of her husband Radhey Shyam on any of the grounds as so stated in this petition. We are informed by the learned counsel for respondents that since the case of the petitioner's husband has already been recommended to the Advisory Board and the matter is yet to be heard and finally decided on merits by the Board, it will be wholly unjust and inappropriate for us to make any observation which may cause any prejudice to his case which is awaiting consideration by the Board and we leave it for the Advisory Board to consider the premature release of the convict Radhey Shyam after taking over all assessment of the matter objectively in accordance with law. With the above observations, the writ petition stands disposed of. .;