AJMER SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Lord Mayo, Viceroy of India, was murdered by Sherali Pathan in Port Blair Why? Not because of his hatred-ness towards the Britishers or that he did OD as a revolutionary or freedom fighter, but because of his anger and anguish for not being set free even after completion of his awarded sentence. He had completed 15 years' sentence of transportation but was not sent back to his family. His requests has been turned down and it was his revolt against high-handedness of the authorities which prevented him to be back with his kith and kin that he did so. Port Blair incident led many criminologist and social psychologist to give a new look towards the jail reforms and also led enactment of several legislation's in various stages regarding shortening of sentences and premature releases. The incident of Lord Mayo on top of Mount Harriet during a cocktail dance party has always to be remembered by all those who have to deal with the cases of grant of parole and premature releases of the prisoners. LET NOT LORD MAYO BE RE-MURDERED State Government and the Advisory Board therefore, while, considering the cases of the prisoners for premature release under the provisions of law, are required to have objective consideration with precessional examination of the record coupled with humanitarian consideration and the consideration that a prisoner who is in process of re- habilitation once again is not compelled to return to the society of criminals. It has to be borne in mind that no man in a born criminal and if he becomes criminal in the latter age he should not be hated. Mahatma Gandhi has said, 'hate the crime not the criminal' Justice Krishna Iyer has also cautioned against ill-treatment with the. criminals and recommended even teaching of transcendental meditation to them. Circumstances in each case lead to commission of crime by an inmate in jail and it is also not necessary that every person who is punished and sent to jail must have necessarily committed a crime. It is the evidence collected by the investigating agency and the witnesses examined in the court which persuade the Judicial to convict the man and send him to prison. He is unaware of the truth or the reality. It is this man who, while suffering imprisonment when successfully attains the period for consideration of his premature release, he has a right of objective consideration not based on whimsical or personal bias against the criminals as a whole. For consideration of the case guidelines have been provided for shortening of sentences. The Rajasthan Prisons (Shortening of Sentences) Rules, 1958, Advisory Board have been constituted which is required to consider the report of the jail Authorities, the District Magistrates and the District Superintendent of Police for a man who has remained in jail for more than a decade or for 14 years. The best person to report about his conduct is the Superintendent of Jail. His report also has to be considered in light of the records maintained in the jail. Many a time prisoner egos of the jail authorities or the psychoneuroses, illusory imagination of jail guards makes the record bad. I happened , come across a case where the police guard permitted a prisoner to go to the water-hut at Railway Station, Jaipur for drinking water. Before the prisoner could return to his coach the train steamed of with prisoner left behind and the police going ahead. When the train stopped at Phulera they lodged a report of the accused absconding. The case was registered and alarm was sent at various police stations, but the prisoner had borrowed some money from some friend and reached Ajmer by Bus and reported at jail gate and narrated the incident to the Superintendent Jail. The police station Phulera without considering this conduct filed the charge-sheet which was quashed as it was found to the frivolous. Similarly, the prisoners kept in open jail if do not keep their guard or the in-charge pleased by various methods which are more to be understood then narrated, they get adverse entries in their records. Hence entire record has to be carefully perused before the record is placed before Advisory Board, the police officers of the area who are required to keep eye on the accused when he comes on parole or a report from the officers of the intelligence services about the past conduct of the accused and the reaction of the people, if any, on his premature release are carefully looked into. Similarly the Probation Officer of the area is supposed to keep surveillance whenever he goes on parole and thus the District Superintendent of police and the District Probation Officer are two best authorities who can opine objectively about the premature release. District Magistrate when reports he is expected to assign the reasons. In case he gives an adverse report and would also oblige to disclose the source of his information so that the Advisory Board can apply its mind properly. The Advisory Board when gives its reasoning it is essential that it must look into the reasons assigned by each of the authority and then advise to the State Government accordingly. The recommendation of the Advisory Board, this court has already said in various cases, has to be given due consideration by the State Government. In fact the State Government is duty bound to act on the advice of the Advisory Board unless for the reasons of the security of the State it is essential to differ from it. Rule 12 of the Rules has limited the jurisdiction left in the State and if one has to differ from the advice of the Advisory Board a reasoned order is required to be passed by some senior officer. It has been noticed that a Sec. Officer/Superintendent or a Dy. Secretary makes a note and it is approved by the Secretary and the Minister mechanically. When the Advisory Board is headed by a Commissioner of the Division and it's members are the Sessions Judge, Superintendent of Central Jail as principal Secretary and other non-official advisers, it is unfortunate and regrettable that collective wisdom of five responsible officers is negatived by an office superintendent or the Dy. Secretary and by mechanical non-application of mind by the. Secretary or the Minister concerned. Therefore, while discharging the duty high sense of devotion and dedication is required. It is pious duty which is to be performed as it relates to rehabilitation of a person. They are dealing with a person who unfortunately is lifelong handicapped and is always a Marked Men in the society. Howsoever genuine the reformation of his good behaviour would be permitted there may be traditional prejudices and dis-trust of certain people which may haunt him. The duty cast upon the members of the Advisory Board of the State Authorities is to develop self confidence in that man, to teach him by their conduct that it is only self esteem on which he has to rely in shaping his own future. There may be even cases where the person released in community life may still find him handicapped or stigmatized, the plight of the discharged prisoner therefore in regaining his status requires bettered or improve when long period of more than 14 years has elapsed, the prisoner sees a ray of hope for re-building his career and makes several dreams which ultimately may come true or not. But always remember these dreams alone are his treasures while he is behind the Bar. If his genuine dreaming is sought to be disturbed or the process of his release is delayed adverse thoughts would start coming and before this happens let fair and proper consideration be given to their cases, else alas Sherali Pathan's story may be repeated.

(2.) The case of the present petitioner has to be considered in the aforesaid circumstances. He filed this writ petition through his friend Satyadeo Bhardwaj challenging the order, dated 23rd Feb., 1991, Annexure 2, by which the recommendation of his release has been refused by the State despite his case being recommended by the Advisory Board. The petitioner Ajmer Singh was arrested in 1967 on a charge of murder on one Gupta Fakeer. After trial he was acquitted but the acquittal was reversed by the High Court in an appeal by the State in 1973. The petitioner remained in judicial custody with effect from 29.11.1968 to 23.6.1970, i.e., for one year, six months and 26 days. He served the sentence from 8.11.75 to 5.2.1979, i.e., three years, two months and twenty nine days and then from 23.12.85 to 31.8.1993 after dismissal of his appeal from the Supreme Court, i.e., for a period of 7 years, 8 months and 9 days. He earned jail remissions for about 3 years and for 11 years he got straight remission, as such for the purpose of consideration for pre-mature release as per rule 8(iii) of the Rajasthan Prisons (Shortening of Sentences) Rules, 1958 (hereinafter referred to as "the Rules of 1958"). He has almost undergone 151 years sentence. Admittedly he was released on 20 days parole from 1.12.90 to 20.12.90. He returned in time. He has also crossed the age of 65 years. Being entitled for the release under the rules of 1958 his case was placed before the Advisory Board constituted under the Rules on 9.1.1990. The Advisory Board after considering the facts and circumstances of the case of the petitioner and perusing the material placed before the Advisory Board recommended the case of premature release of the petitioner which advised the Government that the petitioner may be released on furnishing personal bond in the sum of Rs. 10,000.00 with one surety in the like amount. The State Government did not agree with the recommendation of the Advisory Board and rejected his case because the Medical Board constituted estimated his age between 55 to 60 years, while the jail record showed it about 70 years. There being variation the State Government refused to accept the advice and the writ petition filed by the petitioner was dismissed. The petitioner filed a D.B. Habeas Corpus Petition No. 87/92 with a prayer to release the petitioner. Since the court was of the opinion that Habeas Corpus petition would not allow the petitioner withdrew the same with liberty to file an appropriate writ petition for challenging the order of the Government by a separate writ. Subsequent recommendation of the Advisory Board has again been turned down by the State vide order, dated 23.2.1991. The petitioner's case was again listed on 24.8.93 wherein the case of the petitioner has been deferred for hearing. The petitioner therefore, submits in this writ petition that he is being detained mala fide despite the fact that his case has always been recommended both, by the officers of the Social Welfare Department as well as the District Superintendent of Police and also by the jail authorities. The contention of the petitioner is that the orders of the Government thrice rejecting the advice of the Advisory Board is mala fide exercise of the power. It is submitted that all safe-guards have been placed by the Legislature for the Advisory Board and then it is high power body, recommendation of which should be held to be binding on the Government and no discretion is left with the officers of the State Govt. to reject the advice of the Advisory Board. That submission is that if the procedure prescribed under Rule 10 of the Rules of 1958, has been followed then no further discretion is left under Rule 12 to the State Government to refuse the recommendation except on the ground that there is information with the State that if the prisoner is released he may be danger to the society. The order of the Government therefore, rejecting the recommendation of the Advisory Board is patently illegal.

(3.) The contention of the State Government is that the State Government has ample power to refuse the recommendation of the Advisory Board it it is not in consonance to the Rules and in this case it is submitted that the reports of the Superintendent of police and the jail authorities were not favourable to the petitioner.