JUDGMENT 1. - Several petitions under Article 226 of the Constitution of India, as well as, under section-482. Cr. P.C. have been listed before this court seeking release of the prisoners on parole on different grounds e.g. for appearing in the examination, for attending the marriage of sister/daughter/brother etc. 2. The Addl. Advocate General has seriously opposed the jurisdiction of this court to grant parole either in exercise of powers under Article 226 of the Constitution of India or under Section 482 Cr. P.C. and there is no judgment of this Court deciding this controversy. 3. I have heard at length the learned members of the Bar and the learned Addl. Advocate General and the learned Addl. Government Advocate on this preliminary objection. The preliminary objection is decided as under. 4. Historically, 'Parole' is a concept which was known in military law and it indicated the release of a prisoner of war on promise to return. Previously instances of release of prisoners on parole in criminal justice were literally unknown. However, with the evolution of changing attitude of the Society towards crime and criminals, parole has become an integral part of criminal justice. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen.It is no doubt true that parole is an act of grace and not a matter if right. It is also true that it is an executive function based on humanitarian considerations'.In the field of penology, modern trend is to reform, re-educate and provide rehabilitation to a convict rather to hate him socially. No person is born as a criminal. Crimes are always rooted in criminal tendencies and their origin may lie in psychological factors induced by hunger, want and poverty. Crimes are also committed on account of environmental influences, ignorance and want of education. It is in the interest of Society that a person who strays into the path of crime, to be treated as being socially sick as even during the jail life he remains a human being. Young prisoners may make efforts to be good citizens by educating themselves even while under-going imprisonment. In the recent years, order for release of prisoners on parole have been made by the High Courts, as well as, by Apex Court of the country on 'humanitarian considerations'. 5. Ours is a welfare State. Young prisoners may make efforts to be good citizens by educating themselves even while under-going imprisonment. In the recent years, order for release of prisoners on parole have been made by the High Courts, as well as, by Apex Court of the country on 'humanitarian considerations'. 5. Ours is a welfare State. The State Government, as well as, the Central Government have made rules, not only for better jail conditions, but also to provide all sort of facilities to the prisoners, including for their education. Part-X of the Rajasthan Prisons Rules, 1951 under the head 'Employment, Instruction and Control of Convicts' deals with those activities, including education of convicts in public institutions. Rule-26A under this part deals with education of convicts in public institutions. Under the said rules, Juvenile of youthful prisoners are provided facilities/permission to continue their education at any school/college/polytechnic on any other educational institutions. Similarly, the State Government has also made rules known as 'Rajasthan Prisoners Welfare Fund Rules, 1964'. By these rules, the examination fees of the prisoners appearing in various examinations conducted by the Rajasthan University, Board of Secondary Education and other Institutions are remitted by the State Government and expenditure of books and other stationary articles required by the prisoners for various examinations are also incurred by the State Government. The entire object behind these beneficial provisions/ rules is to provide an opportunity to a Juvenile or Youthful prisoner to improve his fate and future life by making studies and even higher studies. This is all in consonance to the modern trend to provide measures for reformation and rehabilitation to prisoners, who stand condemned from the Society. 6. In this very background, Rajasthan Prisoners Release on Parole Rules, 1958 have been made by the State Government in exercise of the powers conferred by Sub-section(6) of Section-401 of the Code of Criminal Procedure, 1898 (now Section 432 of the Code of Criminal Procedure 1973). These rules provide the procedure and the manner of release of a prisoner undergoing imprisonment on parole. 7. While substantiating the preliminary objection, Mr.Khan, the learned Addl. Advocate General has made the following submissions: (i) That a parole cannot be claimed by a prisoner as a matter of right. It is an act of grace and is essentially an executive function. 7. While substantiating the preliminary objection, Mr.Khan, the learned Addl. Advocate General has made the following submissions: (i) That a parole cannot be claimed by a prisoner as a matter of right. It is an act of grace and is essentially an executive function. Hence, no order of parole can be granted by this Court in exercise of powers under Article 226 of the Constitution of India or under Section 482 Cr. P.C. (ii) That a complete procedure and machinery have been provided under the rules for grant of parole. If an application for grant of parole is made by a prisoner, the same is examined thoroughly by the concerned authority/Advisory committee, as such the matter should be left to their examination and discretion. (iii) That a parole is a special remission which is sanctioned by the Government under section-401 of the Code of Criminal Procedure 1898 (section 432 of the new Code of 1973) and it is an occasion to encourage good conduct and good behaviour by a prisoner. Hence, parole should not be granted by this Court in a routine manner, without an enquiry about the good behaviour of the prisoner. (iv) That in any case such petition under Article 226 of the Constitution of India or under Section 482 Cr. P.C. should not be entertained by this Court unless the prisoner applies for parole before the concerned authority and till his case is examined by it. According to him, such petitions which are filed at the last moment when the examinations are going to commence should not be entertained, especially when no such application has been made earlier to the concerned authority. (v) That a request of parole for appearing in the examination is not covered under the rules, in as much as the emergent cases involving humanitarian considerations have been specified in rule-10A of the Rules. According to Mr.Khan, the cases enumerated in the said rule are exhaustive, as such, parole can be granted on a ground which is not covered by the said rule. 8. I have given my careful consideration to the arguments made by Mr. Khan. Rajasthan Prisoners Release on Parole Rules, 1958 (hereinafter to be referred as 'the Rules of 1958') have come into force w.e.f. July 23, 1959 when these rules have been published in the Rajasthan Gazette. 8. I have given my careful consideration to the arguments made by Mr. Khan. Rajasthan Prisoners Release on Parole Rules, 1958 (hereinafter to be referred as 'the Rules of 1958') have come into force w.e.f. July 23, 1959 when these rules have been published in the Rajasthan Gazette. These rules provide the constitution of District Parole Advisory Committee, as well as, the Prisoners Parole Advisory Committee. The Prisoners Parole Advisory Committee make recommendation to the Government for the release of those prisoners on parole whose cases do not fall within the purview of the District Parole Advisory Committee and other like matters provided under the rules. This committee consists of Inspector General of Prisoners, Rajasthan as the Chairman, Dy. Secretary to Government Home (Jails) Department, Dy. Inspector General of Prisons (Correctional Programme), Prison Psychologist and Chief Probation Officer as its members. Similarly, District Parole Advisory Committee consists of the District Magistrate as the Chairman, Superintendent of Police,Superintendent/Dy. Superintendent, Jail and the Probation Officer as its members.Section-3 of the rules provides that a prisoner sentenced to imprisonment for not less than one year may, subject to exceptionally good behaviour, be allowed by the Superintendent Jail, in which he is confined, to submit application for parole in triplicate in Form I. The said application is forwarded by the Supdt. of Jail to the concerned District Magistrate as per Rule- 4.Then, Rule -5 provides that the District Magistrate concerned will give his remarks, whether the convict in question should be released on parole or not after consulting the Probation Officer, where appointed and if felt necessary the Superintendent of Police. In case, the District Magistrate raised no objection to let off the prisoner on parole, he would send all the papers in original to the State Government or District Committee, as the case may be, for orders stating the conditions on which the prisoner may be released on parole.Rule-6 provides the conditions of release of the prisoner on parole.Rule-8 provides for journey expenses on parole and Rule-9 provides period. As per this Rule, 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 second parole provided his behaviour has been good during the first parole and for 40 days on third parole provided his behaviour has been good during the second parole. It also provides for permanent release on parole on such conditions and circumstances mentioned in the said rule.Rule-9A has been introduced in the year 1966 and Rule 10A has been introduced in the year 1970. For the sake of convenience, these rules may be reproduced as under:-Rule-9A "In emergent cases the Superintendent of Jail shall grant parole upto a period of 7 days only subject to confirmation by the Inspector General of Prisons, and for a period of not more than 15 days by the Inspector General of Prisons". Rule-10A "(i) Notwithstanding the provisions of rules (3,4,5)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. (4) Marriage of a Prisoner, his/her son or daughter or his/her brothers/sisters in case his/her parents are not alive). A prisoner may be released on parole for a period not exceeding 7 days by the Superintendent of the Jail and for a period not exceeding 15 days by the Inspector General of Prisons (District Magistrate) on such terms and conditions as they may, consider necessary to impose for the security of the prisoner including 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. (ii) 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".) ("In case the next higher authority does not approve the grant of parole, he may ask the authority granting the parole to revoke the same who shall act accordingly". Rule-11 provides supervision of Probation Officer when a prisoner is on parole. Rule-11 provides supervision of Probation Officer when a prisoner is on parole. Rule-12 provides that the period of parole may be regarded as special remission sanctioned by the Government under section-401 A of the Code of Criminal Procedure. Rule-13 provides that the grant of parole should be regarded to encourage good conduct and it shall not be claimed by prisoners as a matter of right. (emphasis provided). Rule-14 enumerates the categories of prisoners who are not eligible for release on parole. Rule-15 provides the methods of computation of the period of sentence of imprisonment. Rule-16 provides the provision for revocation of the parole period if any condition of parole is violated by the prisoner and if it is considered that the prisoner is unfit to be allowed to remain at large under parole. Rule-17 also provides power of cancellation of parole with the State Government or District Committee. Then, Rule-18 provides punishment for breach of conditions of parole. 9. The parole rules, as discussed above, provides a complete procedure and machinery for grant of parole to the prisoners. It is also provided in these rules that the grant of parole is a concession and it cannot be claimed as a matter of right by a prisoner.A study of these rules further makes it clear that two types of parole are provided, namely, regular parole and parole in emergent cases. A prisoner becomes entitled to regular parole only after undergoing one fourth of his sentence and subject to the good conduct in the jail. The regular parole may be provided second and third time also after the expiry of a certain period and subject to good conduct in jail.In emergent cases, the Superintendent of jail has been empowered to grant parole upto a period of 7 days only subject to the confirmation by the Inspector General of Prisons, and for a period of not more than 15 days by the Inspector General of Prisons.Rule-I0A illustrate emergent cases involving humanitarian considerations.Rule-21 provides for the prompt disposal of the application regarding release of prisoners on the parole on the grounds of serious illness or death of their near relations (Father, Mother, Daughter, Son, Husband or Wife). The District Magistrate deals with such application expeditiously, cause immediate enquiry to be made and communicate his recommendation to the State Government/ District Committee within four days of the date of receipt of the application for parole. The District Magistrate deals with such application expeditiously, cause immediate enquiry to be made and communicate his recommendation to the State Government/ District Committee within four days of the date of receipt of the application for parole. 10. I would also like to deal with the argument of Mr. Khan that the cases enumerated in aforesaid Rule -10A, providing grant of parole in emergent cases on humanitarian considerations, are exhaustive. According to him, grant of parole for appearing in the examination is not provided in this rule as a emergent case, as such, parole cannot be granted either by concerned authorities or by this court to a prisoner for appearing in the examination.Rule-10A has been inserted by Notification dated May 29, 1970. It appears that this rule has been inserted to clarify that a parole in emergent cases, involving humanitarian considerations, can be granted. Rule-9A, which existed earlier, already provided a provision to grant parole in emergent cases, but it did not define emergent cases. By inserting Rule-10A, the legislature has clarified as to what cases should be considered as emergent cases. By this provision, it has been made clear that in cases involving, humanitarian considerations and if. are of emergent nature, parole can be granted. It is no doubt true that some emergent cases have been enumerated in this rule, but in my view, those cases have been mentioned as illustrative cases of emergent nature involving humanitarian considerations. The words "humanitarian considerations" have to be given widest and beneficial interpretation keeping in view the object behind the grant of parole to a prisoner, i.e., reformation and rehabilitation. Which considering, as to whether a particular ground for release on parole is based on humanitarian considerations or not, the beneficial impact on the prisoner and the Society by such release has to be kept in mind. After the words humanitarian considerations", the word 'viz' is there. This word has been defined in the Concise Oxford Dictionary 7th Edition as 'that is to say' 'in other words', 'namely'. The word 'viz.' itself is indicative of this fact that the cases enumerated in this rule are only illustrative and not exhaustive. After the words humanitarian considerations", the word 'viz' is there. This word has been defined in the Concise Oxford Dictionary 7th Edition as 'that is to say' 'in other words', 'namely'. The word 'viz.' itself is indicative of this fact that the cases enumerated in this rule are only illustrative and not exhaustive. Therefore, I hale no hesitation to hold that if the release on parole is sought on the ground of appearing in the examination, the same is based on humanitarian considerations and in the given case a prisoner may be-released on parole for this purpose. This interpretation shall be in consonance to various orders of release on parole passed by this Court, as well as, by the Apex Court of the country. Hon'ble Supreme Court in Convict Naresh Kumar Shukla v. The Chief Secretary and Others, Writ Petition (Criminal) No. 789 of 1990 , released the petitioner on interim bail for enabling him to sit for the M.A. Examination vide order dated May 2, 1990. In Gulab Chand Meena v. State of Rajasthan, D.B. Civil Writ Petition No. 927 of 1987 , a Division Bench of this Court, on the basis of an order of the Supreme Court in writ Petition No. 212/86, under Article 226 of the Constitution of India released the petitioner on parole to appear in the examination vide order dated April 10, 1987.The Hon'ble Supreme Court had granted parole to Gulab Chand Meena in Gulab Chand Meena v. State of Rajasthan, Writ Petition (Criminal) No. 25/89 , to appear in the examination vide order dated May 5,1989.Mr. Khan, on the other hand, drew my attention to an order passed by Hon'ble Supreme Court in Naresh Kumar Shukla v. State of Rajasthan and Others, Writ Pettion No. 669/1991 , in which the Supreme Court rejected the prayer to grant parole, but a direction was given to the authorities concerned to take all necessary steps so that the petitioner may sit at the ensuing examination and may get proper facilities in his preparation for the examination. 11. The next argument of Mr. Khan is that the parole Rules provided a complete machinery and procedure for grant of parole and no direct application/petition should be entertained by this Court either under Article 226 of the Constitution of India or under Section 482 Cr. 11. The next argument of Mr. Khan is that the parole Rules provided a complete machinery and procedure for grant of parole and no direct application/petition should be entertained by this Court either under Article 226 of the Constitution of India or under Section 482 Cr. P.C. unless the petitioner first approaches to the concerned authorities and applies in time for grant of parole.As already stated earlier, the grant of parole is an act of grace and a prisoner cannot claim it as a matter of right. If the rules are framed for grant of parole, then, the applicant should approach to the concerned authorities for grant of parole in a normal course. Therefore, if the applicant has sufficient time to approach to the concerned authorities for grant of parole in emergent cases also, he should first approach there and seek an order. If the application for grant of parole is rejected by the concerned authorities then only he should be allowed to approach to this Court. This Court may grant parole even if the prisoner approaches directly, but such cases should be rare and exceptional. There is also one more reason behind it. The conduct of the prisoner is of great importance in granting or rejecting the prayer for parole. The concerned authorities are in a better position to examine the conduct of the prisoner if he approaches there for grant of parole. 12. After the above discussions and taking into consideration the legislative intention, the preliminary objections raised by Mr. Khan may be answered as under for the guidance to all: (i) Parole basically is an executive act of grace and it cannot be claimed as matter of right; (ii) The Rajasthan Prisoners Release on Parole Rules, 1958 provide a complete procedure and machinery to consider the cases of release on parole. Hence, a prisoner must first approach to the concerned authorities for grant of parole, which may be a regular parole or one in a emergency case; (iii) Normally, no petition either under Article 226 of the Constitution of India or under Section 482 Cr. P.C. should be entertained for grant of parole unless the prisoner/ petitioner first approach to the concerned authorities and his prayer is rejected by it. P.C. should be entertained for grant of parole unless the prisoner/ petitioner first approach to the concerned authorities and his prayer is rejected by it. Only in very exceptional and rare cases direct petition should be entertained by this Court; (iv) The decision of the concerned authority granting or refusing parole should not be interfered by this court unless the same is contrary to the Parole Rules or suffers from the vice of arbitrariness or malafide: (v) Rule- 10-A of the Rules should be given a wide and beneficial interpretation so as to include other cases of urgency also which are based on humanitarian considerations, but have not been mentioned in the cases enumerated by way of illustration in this Rule. Prayer for grant of parole for preparation in the examination or to sit in the examination is based on humanitarian ground and in a suitable case it may be granted, provided the prisoner discloses such facts which necessitate the release. Normally, in such cases the Jail authority should take steps to provide necessary facilities to the prisoner for preparation and appearance in the examination. Having discussed the preliminary objection I shall examine each case on its merits separately.Preliminary objection decided. *******