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IN THE HIGH COURT OF JUDICATURE AT PATNA
Rajeev Ranjan Prasad, J.
Rajeeta Patel @ Rajita Patel Wife Of Vikki Anand - Appellant
Versus
State of Bihar - Respondent
Criminal Writ Jurisdiction Case No. 1868 of 2019
Decided On : 12-10-2020
Prisoners Act, 1900 – Section 31-C – Bihar Prisoner's (Parole) Rules, 1973 – Rules 5 and 6 – Constitution of India – Article 21 – Petitioner is seeking to enforce fundamental rights as envisaged under Article 21 of Constitution of India for her prisoner husband – Submission of petitioner is that even though her husband is a life convict still his fundamental right granted under Article 21 of Constitution of India may be enforced and he would be entitled to get a leave of about 90 days for purpose of conjugal visits and to take care of infertility problem by providing medical treatment of petitioner so that she may beget a child – Her husband shall also make arrangements for her livelihood – There are provisions for release of prisoners on Parole on recommendation of District Parole Board for any period not exceeding thirty days at a time and also for release of prisoners for a special reason by State Government for a period not exceeding 15 days – Till now, however, there is no statute or Rule Book recognising directly conjugal visit as a reason for granting Parole to a prisoner – Conjugal visits for procreation does not specifically find place in category 'special reasons' under sub-Rule (2) of Rule 6 of Parole Rules 1973 for temporary release of prisoner – However, in Hindu families child is given a very important place – Right to life and personal liberty guaranteed in Article 21 of Constitution of India would include rights of convict or jail inmates for conjugal visits or artificial Insemination (in alternative) – Petitioner is looking for medical check ups and treatment for infertility and also for arrangement of her livelihood – Prayer of petitioner that her husband is entitled for leave cannot be rejected at outset – Need of a prisoner to maintain family and social ties and then other competing public interest which are to be kept in mind while deciding as to whether in a particular case parole or furlough be granted or not – Petition cannot be dismissed only on the ground that appellant is a convict in a serious and heinous crime. (Paras 30, 42, 47 and 48)
Bihar Prisoner's (Parole) Rules 1973 – Rules 5 and 6 – Prisoners Act 1900 – Section 31-C – Constitution of India – Article 21 – Right of prisoner for release for conjugal visits – Right to have a conjugal visit or artificial insemination in alternative is included under Article 21 of Constitution of India, subject to regulatory procedure as may be provided by law – Medical check-ups and treatment of petitioner for infertility is an essential part of this right and without allowing husband of petitioner to get his wife treated for such purpose concept of this right under Article 21 of Constitution of India shall remain only a hollow and shallow concept – Until State of Bihar addresses issues of conjugal visits or artificial insemination effectively by way of an appropriate legislation, cases such as that of present petitioner who is seeking to treat her medical conditions of infertility and is looking for a conjugal visit of her husband is to be taken not only covered under sub-Rule 2 ([k) of Rule 6 of Parole Rules, 1973 but is also a sufficient cause in broad categories laid down by Supreme Court which qualify as a ground to consider case of husband of petitioner for grant of Parole or 'Furlough – Problem of infertility which petitioner is facing and for which she needs medical attention as also arrangement of her livelihood are certainly family related problems of petitioner – Case of husband of petitioner requires consideration for purpose of his temporary release on parole or furlough' subject to such conditions as may be imposed by competent authority keeping in view Act of 1900 read with Parole Rules 1973 and judicial pronouncement of Apex Court in case of Asfaq ((2017) 15 SCC 55) – State of Bihar and its' authorities directed to consider representation of petitioner for grant of parole or furlough as the case may be, in light of this judgment. (Paras 49 and 50)
JUDGMENT
Rajeev Ranjan Prasad, J. - Heard Mr. Bajarangi Lal, learned counsel representing the petitioner and Mr. Sheo Shankar Prasad, learned SC 8 on behalf of the respondents.
2. This writ application has been preferred for a direction to the State of Bihar and its authorities who are respondent nos. 1 to 9 to grant a leave of 90 days to the husband of the petitioner who is in jail after being convicted and sentenced for life by a judgment and order dated 21.06.2016 and 22.06.2016 respectively for the offence under Section 302 of the Indian Penal Code in Session Trial No. 307 of 2013 arising out of Bihar P.S Case No. 263 of 2012.
Submissions of the Petitioner
3. It is the case of the petitioner that she is legally wedded wife of the convict Mr. Vicky Anand. Her marriage was solemnized on 25.04.2012, immediately after about 5 months of the marriage, the husband of the petitioner was made an accused in Bihar P.S. Case No. 263 of 2012 dated 27.09.2012 instituted for the offence under Section 341, 342, 307, 120B/34 of the Indian Penal Code. After 16 days of the hospitalization the victim of the crime died, therefore, Section 302/34 IPC was also added. A charge-sheet was filed against the husband of the petitioner and other accused, After trial, the husband of the petitioner has been convicted and sentenced to undergo rigorous imprisonment for life. It is further stated that a criminal appeal bearing No. 746 of 2016 has been filed against the said judgment of conviction and the appeal has been admitted by the Hon''ble Division Bench of this Court. The prayer for bail of the husband of the petitioner has, however, been rejected.
4. In the aforementioned circumstance it is the submission of the petitioner that her husband is in custody for seven years (at the time of filing of the writ application), the petitioner is aged about 25 years and because of this separation between the petitioner and her husband, since the petitioner and her husband are not living together, they are not blessed with a child. The petitioner is looking for her treatment for infertility and arrangements for livelihood.
5. The submission of the petitioner is that even though her husband is a life convict still his fundamental right granted under Article 21 of the Constitution of India may be enforced and he would be entitled to get a leave of about 90 days for purpose of conjugal visits and to take care of the infertility problem by providing medical treatment of the petitioner so that she may beget a child. Her husband shall also make arrangements for her livelihood. It is lastly submitted that the petitioner has submitted the representation in this regard vide Annexure ''3'' series, copies of the representation together with proof of dispatch by speed post have been placed on the record.
6. In order to strengthen his submission, learned counsel for the petitioner has relied upon a Hon''ble Division Bench judgment of Madras High Court in Habeas Corpus Petition No. 1837 of 2017 and a judgment of the Hon''ble Punjab and Haryana High Court in the case of Jasvir Singh and Ors. vs. State of Punjab& Ors., (2015) CriLJ 2282 .
Submissions of the State
7. On the other hand, Mr. Sheo Shanker Prasad, learned SC 8 has contested the writ application. His main contention is that under the Bihar Prison Manual 2012 there is no provision for release of the prisoner for medical treatment of infertility or for procreation purposes. It is submitted that in special circumstance there is a provision of 15 days parole by the State under Rule 793(V) of Bihar Prison Manual 2012. In this regard he has brought on record the relevant provision by way of Annexure ''A'' to the counter affidavit.
8. Rule 2 of the Bihar Prison Manual,2012 has enlisted the statutes including amendments thereafter and corresponding rules which shall have a bearing on the establishment and management of Prisons. Bihar Prisoners (Parole) Rules, 1973 is one of them.
9. Learned SC 8 has also attempted to distingui
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