MISHRARAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(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:-

(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) 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:-