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1998 DIGILAW 764 (RAJ)

Amar Chand Goyal v. State of Rajasthan

1998-07-16

ARUN MADAN, M.A.A.KHAN

body1998
Honble MADAN, J.–Briefly stated the case of the petitioner is that he was put to trial for commission of an offence punishable under Section 302 IPC and was sentenced to undergo imprisonment for life by the Sessions Judge, Kota on 24.4.1985. Against his conviction, he preferred an appeal before this Court vide D.B. Criminal Appeal No. 251/85 which was dismissed vide its order dated 20.9.1987. Thereafter, the petitioner has been undergoing the sentence in Central Jail, Jaipur and subsequently he has been shifted to Sanganer Open Jail, Jaipur w.e.f. 26.6.1995. (2). The contentions formulated by the learned counsel for the petitioner during the course of hearing are to the following effect - (1) The provisions of Section 433(A) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) are violative of petitioners constitutional rights under Articles 14 & 21 of the Constitution of India since it is an independent provision which cannot override the Rajasthan Prisoners (Release on Parole) Rules, 1958 (hereinafter referred to as the Rules of 1958) and the petitioner is entitled to the benefit of the said rules for his case being considered for premature release by the Advisory Board on being referred to the said board by the State Government in accordance with Rule 9 of the Rules of 1958. (2) As per Notification dated 15.10.1990 issued by the Government of Rajasthan amending the existing clause (d) of Rule 2 of the Rules of 1958 the parole means conditional enlargement of a prisoner from the jail under those rules. Relying upon this proposition, learned counsel for the petitioner has contended that conditional enlargement of a prisoner should not be construed for the expression sentence suspended as per Rules of 1958 for the purposes of entitlement for premature release under the rules. Relying upon this proposition, learned counsel for the petitioner has contended that conditional enlargement of a prisoner should not be construed for the expression sentence suspended as per Rules of 1958 for the purposes of entitlement for premature release under the rules. (3) There is fine distinction between the conditions relating to grant of general parole and those governing the grant of parole in emergent cases under the rules and hence irrespective of the said conditions in case he is entitled to be considered for his premature release because he has already undergone 14 years, 4 months and 15 days to be reckoned from the date of his conviction i.e. 24.4.85 as actual sentence inclusive of period of 469 days which includes the period of benefit of parole which he had earned thrice as detailed in para 5 of the petition in the following manner - From 10.7.86 to 24.7.86 15 days Parole From 25.6.88 to 1.7.88 7 days interim bail From 30.9.87 to 14.10.87 15 days Emergency Parole From 29.3.88 to 5.4.88 8 days Emergency Parole From 9.11.88 to 15.11.88 7 days Emergency Parole From 2.4.90 to 9.6.90 49 days interim bail From 3.5.89 to 12.6.89 15 days Emergency Parole From 3.5.89 to 12.6.89 41 days interim ball From 27.2.91 to 13.2.91 15 days Emergency Parole From 21.6.91 to 17.8.91 58 days interim bail From 4.11.91 to 23.11.91 21 days First regular Parole From 20.2.92 to 5.3.92 15 days Emergency Parole From 25.10.92 to 8.11.92 15 days Emergency Parole From 6.3.93 to 4.4.93 30 days Second regular Parole From 8.2.94 to 24.2.94 17 days Emergency Parole From 13.4.94 to 15.5.94 33 days Emergency Parole From 21.5.94 to 18.7.94 59 days Emergency Parole From 5.10.94 to 12.10.94 8 days Emergency Parole From 11.1.96 to 19.2.96 40 days third Regular Parole 468 days (4) As per Rule 9 of the Rules of 1958 a convicted prisoner who has peacefully spent three paroles without relapsing into crime, becomes eligible for permanent parole. (3). We have examined the aforesaid contentions advanced by the learned counsel for the petitioner and also the relevant law on the subject. At the outset, we are of the opinion that it is not open to the petitioner to challenge the legality or propriety of Section 433A, Cr.P.C. which stipulates, as under- ``433A. (3). We have examined the aforesaid contentions advanced by the learned counsel for the petitioner and also the relevant law on the subject. At the outset, we are of the opinion that it is not open to the petitioner to challenge the legality or propriety of Section 433A, Cr.P.C. which stipulates, as under- ``433A. Restriction on powers of remission or commutation to certain cases.-Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. (4). The constitutional validity of the aforesaid provision has already been upheld by the Apex Court in several writ petitions preferred before it in the matters of Maru Ram and others vs. Union of India (1) wherein, their lordships of the Apex Court observed, as under- ``Section 433-A being such a specific law that will be the last word and will hold even against the special or local law. The remission rules are explicit, definite provision dealing with a particular situation or narrow class of cases, as distinguished from the general run of cases covered by S. 432, Cr.P.C. Section 433-A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particularised treatment. It follows that S. 433-A applies in preference to any special or local law because S. 5 expressly declares that specific provisions, if any, to the contrary will prevail over any special or local law. (5). Be that as it may, we are consequently of the view that it is not open to the petitioner to challenge the constitutional validity of Section 433-A in context of Rules of 1958 since the remission rules relating to the premature release of the convicts are governed by the specific rules which are explicit in their ambit and scope dealing with a particular situation and for which the petitioner already has a right to apply to the appropriate authority subject to the compliance of the conditions stipulated in the Rules 9 and 10 of the Rules of 1958. We are further of the view that Section 433-A of the Code is applicable in preference to any special or local law since the Rajasthan Prisoners (Shortening of Sentence) Rules, 1958 to which the convicts may be entitled are governed by the special or local rules and have to be read independently of the provisions of the Code more particularly, Section 433 is an enabling provision and cannot be invalidated and is not open to challenge as violative of Articles 14 & 21 of the Constitution of India. (6). As regards petitioners contention that he is entitled to premature release under the provisions of Rules of 1958, we are of the opinion that if the petitioner is entitled to the benefit of 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 again not open to challenge as being arbitrary or unconstitutional. For the existing Rule 12 of the said Rules, the following shall be substituted - ``12. Parole period regarded as imprisonment served-The period for which a prisoner stays on parole under rule 9, without violating the conditions laid down for the purpose, shall be treated as imprisonment served by him. All other kinds of parole shall be treated as sentence suspended." (7). As a result of above discussion, the writ petition is dismissed. Before parting with the case, we would like to observe 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 Govt.