Prisoner's Failure To Surrender On Completion Of Parole Amounts To Escape From State's Lawful Custody: Rajasthan High Court

The three-judge bench comprising Justice Vinit Kumar Mathur, Justice Pushpendra Singh Bhati, and Justice Vijay Bishnoi was dealing with a question referred to it by the Chief Justice in view of two contradictory and opposing rulings by two different division benches of the High Court.

The question and the rulings of the Division benches

The Larger Bench had been constituted under the orders of Hon'ble The Chief Justice for answering the following question: -

"Whether non-surrendering of a prisoner to the prison authorities after expiry of the period of parole would amount to escape from lawful custody and therefore, ordinarily, such prisoner would not be entitled to be transferred to Open Air Camp, on account of inhibition contained in Rule 3(c) of the Rules of 1972 ?"

The Division Bench comprising Chief Justice Indrajit Mahanty and Justice Dinesh Mehta had, last year, in Yogesh Kumar Devangan vs. State and Ors. (DBCr.WP No.541/2019) held that the act of the prisoner in not reporting to the Jail Authorities on completion of his parole can't be equated with the case of the prisoners, who have escaped from the jails or have attempted to do so and also held that the Rule 3(c) of the Rules of 1972 cannot be taken up as an absolute bar and it is upon the Advisory Committee to consider the application after due application of mind on merits.

However, another Division Bench of the Court was not agreeable to this view and therefore, the instant three-bench had been constituted.

What does Rajasthan Prisoners Open Air Camp Rules, 1972 say?

As per rule 3 (c), persons who have escaped from the jails or who have attempted to escape from lawful custody are ineligible for admission to open-air camp.

Also, rule 4 is related to Eligibility for admission to Open Camps and it says that a prisoner shall be eligible for admission to an Open-Air Camp, if he does not fall within any of the categories specified in rule 3.

Now, a conjoint reading of both the rules would make it obvious that in case a prisoner escapes the lawful custody, he/she shall not be eligible for admission to open-air camp.

Against this backdrop, the Court had to decide if a person who doesn't return/surrender to the prison authorities on the completion of his parole period, can it be said that he/she had escaped the lawful custody of the state.

Court's observations

At the outset, the Court observed that if a prisoner, who is out of prison or jail premises on parole, is held to be in lawful custody of State then he/she would become ineligible for admission to open air camp (if he/she jumps parole) in the light of Rule 3(c) of the Rules of 1972.

However, if he/she can't be said to be under state's lawful custody while out on parole, the Court added, the inhibition contained in Rule 3(c) of Rules of 1972 will not affect the entitlement of a prisoner for his admission in Open Air Camp, even he/she jumps parole.

Against this backdrop, the Court referred to Apex Court's ruling in the case of Sunil Fulchand Shah vs. Union of India (UOI) and Ors AIR 2000 SC 1023, wherein it was held that a prisoner released on parole, remains in legal custody of the State.

"Even while on parole, the prisoner continues to serve the sentence or undergo the period of detention in a different manner than from being in jail. He cannot be termed as a free person," the Court noted referring to Sunil Fulchand (supra).

Importantly, the Court also referred to Sections 418 & 419 of CrPC, Form No.34 appended to the Second Schedule of CrPC and Section 55 of the Prisons Act, 1894 to conclude thus:

"A prisoner while out of prison or jail premises on parole will remain in the lawful custody of the State… So even if a prisoner is outside the jail or prison on parole, by virtue of Section 55 of the Act of 1894 he shall be deemed to be in prison and subjected to all the same incidents as applicable to a prisoner detained in a jail or prison. Needless to say, a prisoner detained in jail or prison is always in lawful custody of State until proved otherwise."

Accordingly, the court answered the question of law referred for adjudication in the following manner:

• The answer to the question of law referred for adjudication is in the affirmative. The view expressed by Division Bench of this Court in Yogesh Kumar Devangan vs. State and Ors. (supra) is not the correct law.
• Failure of a prisoner to surrender to the prison authorities on completion of parole period would amount to escape from the lawful custody of the State and ordinarily such prisoner would not be entitled to be transferred to Open Air Camp as per Rule 3(c) of the Rules of 1972.