Non Surrendering of a prisoner’s to the authorities after expiry of the period of parole would amount to escape from Lawful Custody

Gajja Ram Versus State of Rajasthan D.B. Crl. Ref. No. 1/2021 

Larger Bench of JUSTICE VIJAY BISHNOI;  DR. JUSTICE PUSHPENDRA SINGH BHATI; JUSTICE VINIT KUMAR MATHUR, Order dated 26/08/2021.

Question of Law “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 ?” 

Over ruled Judgement Yogesh Kumar Devangan vs. State and Ors. (DBCr.WP No.541/2019); Order dated 06.10.2020.

Arguments

• That the prisoners, who have failed to report back to the Jail Authorities on completion of their parole period are different from those prisoners, who absconded or escaped from the jail or attempted to do so and cases of such prisoners are not liable to be considered as per Rule 3(c) of the Rules of 1972 but can only be considered as per Rule 3(g) of the Rules of 1972. 
• The object of Open Air Camp is to bring the convict-prisoner into main stream of society and while considering the matter under adjudication, the aim and object of Open Air Camp must be taken into consideration.
• That provisions of Parole Rules prescribe punishment for such overstaying prisoners and it applies to them under the jail punishment category, therefore, denying admission to Open Air Camp in addition to such punishment would amount to double jeopardy, which is violative of Articles 14, 20 and 21 of the Constitution of India.
• That reformative approach should be taken for transfer of a prisoner to Open Air Camp and denial for the same would amount to violation of fundamental rights therefore, any rule, order or provision of law cannot debar a prisoner from his right to be reformed. He has further argued that there is difference between “custody parole” and “regular parole” and that the expression “lawful custody” cannot be replaced by “legal custody”. He went on to explain that, when the prisoner is on regular parole, he is not in the custody of the State in any manner. It is also submitted that Rule 3(c) of the Rules of 1972 is only about the ‘substance’ of custody (lawful or unlawful) but not about the ‘form’ of custody (physical or constructive).
• a prisoner is sentenced and warrant is issued, he/she remains in the lawful custody of the State till he/she serves the entire punishment and failure to surrender to the prison authorities after expiry of parole period amounts to escape from the lawful custody

Court View 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. Hence Yogesh Kumar Devangan vs. State and Ors. (supra) is not the correct law.

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