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Rajasthan High Court has held that the failure of a prisoner to surrender to prison authorities on completion of parole period would amount to escape from the lawful custody of the State. Finding the judgment delivered by a division bench of the High Court to be incorrect law in the matter, the court further held that ordinarily such a prisoner would not be entitled to be transferred to an Open Air Camp as per the Rajasthan Prisoners Open Air Camp Rules, 1972.

A question in this regard was referred to the full bench of Justice Vinit Kumar Mathur, Justice Pushpendra Singh Bhati, and Justice Vijay Bishnoi by the Chief Justice in view of two contradictory and opposing rulings by two different division benches of the High Court.

The 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 ?"

Division Benches’ rulings

Last year, the division bench comprising Chief Justice Indrajit Mahanty and Justice Dinesh Mehta had, in Yogesh Kumar Devangan vs. State and Ors. 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 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.

Whereas, another division bench of the court took a diverging view of the matter and opined that if a prisoner released on parole does not surrender before the Jail Authorities on completion of parole period, it would amount to escaping from the lawful custody and thus, ordinarily he/ she would not be eligible to be transferred to Open Air Camps on account of the inhibition contained in Rule 3 (c) of the Rules of 1972.

The legal provision in question

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.

The decision of the Court

Reiterating the the authoritative pronouncement of a Constitutional Bench of Hon’ble Supreme Court in Sunil Fulchand Shah vs. Union of India (UOI) and Ors., (2000), the court observed that it is settled law that a prisoner released on parole, remains in legal custody of the state and under the control of its agent. 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 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,

“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.” Court added.

Case title: Gajja Ram vs. State and others