-1- THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.345 OF 2005 S.Sant Singh @ Pilli Singh ] Ajit Singh Kalyani, ] aged years, residing ] permanently at Shikakani ] Vashi, Survey No.110, ] Romm Tekdi, Hadapsar, Pune ] and at present lodged at ] Yerwada Central Prison, ] Prisoner No.C/12822, ] Pune-411006. ]..Petitioner. Versus 1. The Secretary, ] Home Department, ] Govt. of Maharashtra ] Mantralaya, Mumbai ]..Respondent No.1 ] 2. The Dy.Inspector ] General of Prison ]..Respondent No.2 ] 3. The Superintendent ] of Police, ] Yerwada Central Prison ]..Respondent No.3 ] 4. The State of ] Maharashtra ] (at the instance of ] Wanwadi Police St. ] Pune, vide CR No.166 ] of 1999. ]..Respondent No.4 .... Mrs. Harjeet Kaur with A.S.Anand for Petitioner Mr.S.R.Borulkar Public Prosecutor with Mr.Mhaispurkar and Smt.P.H.Kantharia APP for Respondents .... -2- CORAM: V.G.PALSHIKAR,Acg.C.J., CORAM: V.G.PALSHIKAR,Acg.C.J., CORAM: V.G.PALSHIKAR,Acg.C.J., D.B.BHOSALE AND SMT. D.B.BHOSALE AND SMT. D.B.BHOSALE AND SMT. V.K. TAHILRAMANI,JJ. V.K. TAHILRAMANI,JJ. V.K. TAHILRAMANI,JJ. DATED : 22ND DECEMBER, 2005 DATED : 22ND DECEMBER, 2005 DATED : 22ND DECEMBER, 2005 ORAL JUDGMENT [PER SMT.V.K.TAHILRAMANI,J]: ORAL JUDGMENT [PER SMT.V.K.TAHILRAMANI,J]: ORAL JUDGMENT [PER SMT.V.K.TAHILRAMANI,J]: 1. Heard the learned advocate for the petitioner and the learned Public Prosecutor for Respondents. Rule. Rule made returnable forthwith. Respondents waive service, By consent matter is heard finally. 2. By his judgment and order dated 30.4.2002 the learned Sessions Judge convicted the petitioner under Section 302 of IPC. The said judgment and order was challenged by the petitioner in an appeal which is pending before this Court. During the pendency of the appeal, the petitioner preferred application for parole on the ground that his wife was required to be operated. The said application came to be rejected. Against the said order of rejection, the petitioner preferred writ petition before this Court. The said writ petition came to be rejected as the petitioner had remedy of -3- preferring appeal against the order of rejection of parole. Thereafter, the petitioner preferred an appeal to the State Government which came to be rejected. Being aggrieved by the said order of the State Government rejecting his application for parole leave, the present petition has been preferred by the petitioner. 3. The application for parole came to be rejected on two grounds. The first ground was that there are other relatives to take care of his ailing wife and hence the presence of the petitioner was not required. The second ground was that the authorities did not have the jurisdiction to entertain grant of parole leave during the pendency of his appeal before this Court. 4. The matter came up before the Division Bench of this Court. At that time, the learned Additional Public Prosecutor submitted that in view of the decision of this Court in the case of Jayant Jayant Jayant Veerappa Shetty and another Vs. The State of Veerappa Shetty and another Vs. The State of Veerappa Shetty and another Vs. The State of Maharashtra and others, reported in 1986 Cri. L.J. Maharashtra and others, reported in 1986 Cri. L.J. Maharashtra and others, reported in 1986 Cri. L.J. 1298 = 1986 (1) Bom.C.R.311 1298 = 1986 (1) Bom.C.R.311 1298 = 1986 (1) Bom.C.R.311, the authorities have no jurisdiction to entertain an application for parole and grant parole leave during the pendency -4- of his appeal before this Court. Hence, the petitioner cannot raise any grievance against the orders passed by the authorities rejecting his application for grant of parole. 5. The Division Bench of this Court in the case of Jayant Veerappa Shetty (supra), has held that the Prisons (Bombay Furlough and Parole) Rules, 1959 (hereinafter referred to as ‘Prison Rules’) would not apply to the grant of parole to a convicted person whose appeal is pending before the appellate Court and when the appellate Court is in seisin of the matter and it is empowered under Section 389 of the Code of Criminal Procedure, 1973 to pass appropriate orders. 6. In the present matter, the Division Bench vide its order dated 13.4.2005 was of the opinion that "the view taken by the earlier Division Bench in Jayant Veerappa Shetty’s Jayant Veerappa Shetty’s Jayant Veerappa Shetty’s case that the rules regarding furlough and parole leave would not apply to the convicted person whose appeal is pending before the Appellate Court" appears to have been taken without considering the provisions of Section 432 of Cr.P.C.before arriving at the said conclusion. -5- 7. In the present case, the Division Bench, was not in agreement with the view of the earlier Division Bench in the case of Jayant Veerappa Jayant Veerappa Jayant Veerappa Shetty Shetty Shetty and by its order dated 13.4.2005, directed the Registrar to place the case before The Honourable the Chief Justice for reference to a Full Bench to resolve the controversy as to whether the provisions of the Prisons (Bombay Furlough and Parole) Rules, 1959 would stand suspended in cases of the convicts who prefer appeal and once the appellate authority is in seisin of the matter and till the disposal of the appeal. 8. The issues which we formulate for decision so as to resolve the controversy, are as under: 1) Whether the Division Bench in the case of Jayant Veerappa Shetty and Another Jayant Veerappa Shetty and Another Jayant Veerappa Shetty and Another Vs. The State of Maharashtra and Vs. The State of Maharashtra and Vs. The State of Maharashtra and others, others, others, did not refer to or consider the provisions of Section 432 of Code of Criminal Procedure ? 2) Whether the grant of parole amounts to -6- suspension of sentence within the meaning of Section 432 of Code of Criminal Procedure ? 3) Whether the view taken by this Court in Jayant Shetty’s Jayant Shetty’s Jayant Shetty’s case that the Prison Rules would not apply to the grant of parole to a convicted person whose appeal is pending before the Appellate Court when it is empowered to pass appropriate orders under Section 389 of Code of Criminal Procedure, requires to be reconsidered? 4) Whether the competent authorities have the power to entertain an application for parole when the appeal preferred by the petitioner-convict is pending before this Court ? 9. We have heard the learned advocate Ms.Kaur for the petitioner as well as the learned Public Prosecutor Mr.Borulkar on the above law points. 10. On behalf of the Respondent-State, an -7- affidavit has been filed by Shri.P.R.Harchande, Desk Officer, Home Department (Jail) Government of Maharashtra. Two fold contentions have been raised in the said affidavit. The first is that the sister, mother and other relatives of the petitioner are available to take care of his ailing wife and therefore the presence of the petitioner is not necessary. The second contention is that the petitioner’s appeal challenging the order of conviction is pending before this Court and in view of the pendency of the appeal, the petitioner cannot be released on parole in view of the Government Circular bearing reference No.PAR/4584/3(712)-PRS-3 dated 17.9.1985 issued by the Home Department, Government of Maharashtra, Mumbai. The said circular is based on the decision of this Court in the case of Jayant Shetty. 11. Ms.Kaur the learned advocate for the petitioner has submitted that in view of Section 432 of Code of Criminal Procedure even though the appeal against the conviction of the petitioner is pending before this Court, still the authorities have jurisdiction to entertain the application for parole of the petitioner-convict Under Section 432 of Cr.P.C. -8- 12. Mr.Borulkar, the learned Public Prosecutor inspite of the stand taken in the affidavit, has supported the stand taken by Ms.Kaur and stated that though the appeal preferred by the petitioner against his conviction is pending before this Court, the authorities still have jurisdiction to entertain the application for parole. He submitted that in view of the provisions of Section 432 of the Code of Criminal Procedure, the State Government can grant parole to a convict prisoner even though his appeal is pending before this Court. However, he did not substantiate this submission. 13. Before we advert to the controversy before us, we may indicate in short, the scheme in respect of parole leave granted to convicted persons. In exercise of powers conferred by clauses (5) and (28) of Section 59 of the Prisons Act, 1894 (IX of 1894), in its application to the State of then Bombay, the Government of then Bombay framed the Prison Rules. Rules 18 to 28 which deal with parole are as under: -9- . 18. Authorities competent to sanction 18. Authorities competent to sanction 18. Authorities competent to sanction parole.-- parole.-- parole.-- The authority competent to sanction release of a convicted prisoner on parole (hereafter referred to as "the Competent Authority") shall be :-- . (i) the State Government in the following cases:- . (a) prisoners convicted by Courts situated outside the State of Maharashtra, . (aa) prisoners convicted by courts situated within the State of Maharashtra, but confined in prisons situated outside the State, . (b) prisoners convicted by political offences, . (c) any other case or class of cases wherein the State Government has directed that the case or specified class of cases wherein the State Government has directed that the case or specified class of cases be referred to it for orders, . (ii) The Commissioner of the Division, in all other cases in a Division, in which the convicted prisoner is confined, or when the Divisional Commissioner is out of headquarters, the Additional Divisional Commissioner: . Provided that if an application for release on parole or for an extension of the period of parole is refused by the Divisional Commissioner or the Additional Divisional Commissioner, as the case may be, an appeal shall lie to the State Government, whose decision thereon shall be final. . (2) Notwithstanding anything contained in sub-rule (1), the Superintendent of Prison shall also be the Competent Authority to release a convicted -10- prisoner on parole for a period not exceeding fifteen days, in case of death of his close relation i.e. father, mother, brother, sister, spouse or child of the prisoner. . 19. When a prisoner may be released 19. When a prisoner may be released 19. When a prisoner may be released on parole -- on parole -- on parole -- A prisoner may be released on parole for such period not exceeding thirty days at a time as the Competent Authority referred to in rule 18, in its discretion may order, in cases of serious illness, or death of nearest relative such as mother, father, sister, brother, children, spouse of the prisoner, or in case of natural calamity such as house collapse, floods, fire. No such parole or extension of parole shall be granted without obtaining a police report in all cases except in the case of death of his nearest relatives mentioned above. . 20. Parole not to be counted as 20. Parole not to be counted as 20. Parole not to be counted as remission of sentence.-- remission of sentence.-- remission of sentence.-- The period spent on parole shall not count as remission of the sentence. . 21. Application for grant of parole-- 21. Application for grant of parole-- 21. Application for grant of parole-- A prisoner may be granted parole either on his own application or on an application made by his relatives or friends, or legal adviser. . 22. Applications for parole how to be 22. Applications for parole how to be 22. Applications for parole how to be dealt with.-- dealt with.-- dealt with.--(1) Any prisoner desiring to be released on parole shall ordinarily submit his application (in triplicate) in Form D appended to these rules to the Superintendent of Prison who shall endorse his remarks thereon and submit one copy direct to the Competent Authority along with the nominal roll of the prisoner and the other to the District Superintendent of Police of the district in which the prisoner proposes to spend his parole period and to the Commissioner of Police if such place is in Greater Bombay. -11- . Note.-- Prisoners who apply for parole on false grounds or who, abuse the concession or commit breach of any of the conditions of parole are liable to be punished under Section 51-B of the Prisons Act, 1894, as applicable to the State of Bombay. . (2) The District Superintendent of Police concerned or the Commissioner of Police, Bombay, as the case may be, shall immediately make enquiries to ascertain whether the ground or grounds on which parole is applied for is or are genuine and submit immediately his report to the Competent Authority mentioning inter alia whether it recommends the grant of parole and also whether there is a likelihood of breach of peace if the prisoner is released on parole. . 23. Enquiries may be made on receipt 23. Enquiries may be made on receipt 23. Enquiries may be made on receipt of application.-- of application.-- of application.-- On receipt of an application for parole, the Competent Authority may make such enquiries as it considers necessary, and pass such orders as it considers fit. If the Competent Authority considers that there is no objection to release the prisoner concerned on parole it shall make an order for his release on parole. . 24. Conditions subject to which 24. Conditions subject to which 24. Conditions subject to which prisoners may be granted parole.-- prisoners may be granted parole.-- prisoners may be granted parole.-- The Competent Authority may grant parole to a prisoner subject to his executing a surety bond and a personal bond in Forms A and B respectively to observe all or any of the conditions mentioned therein and also subject to such other conditions, if any, as may be specified by the Competent Authority: . Provided that when prisoners convicted of serious offences are released on parole, a condition shall be included in the parole order directing or requiring the prisoner to report at -12- the Police Station nearest to the place where he intends to spend his parole initially on his reaching such place and thereafter once or twice a week at such intervals as may be considered expedient: . Provided further that when a prisoner applies for parole for the purpose of appearing at an examination he will not be eligible to be released on parole unless the Inspector - General of Prisons has passed an order permitting him to appear at such examination: . 25. Extension of the period of 25. Extension of the period of 25. Extension of the period of parole.-- parole.-- parole.--The Competent Authority may, on the application made by the prisoner or by his relatives or friends or legal adviser, one week in advance, before the expiry of the period of parole granted by an order in writing, extend the period of parole for such further period or periods as may be specified in such order, on the same grounds, and on the same conditions on which the prisoner was originally granted parole, or on such other conditions as the Competent Authority may determine: . Provided that the total period of parole so extended shall not exceed ninety days." . 26. Parole order ineffective on 26. Parole order ineffective on 26. Parole order ineffective on prisoner’s surrender,--- prisoner’s surrender,--- prisoner’s surrender,--- As soon as a prisoner released on parole surrenders to the Prison Authority, his original order of release will be inoperative. Where, therefore, a prisoner who is released on parole has applied for the extension of the period of parole and before his application has been sanctioned surrenders himself to the Prison authority, he shall not be released after such surrender without obtaining a fresh release order passed by the Competent Authority. -13- . 27. Intimation of release and of 27. Intimation of release and of 27. Intimation of release and of non-surrender of a prisoner.-- non-surrender of a prisoner.-- non-surrender of a prisoner.-- (1) Whenever any prisoner is released on parole, an intimation of his release on parole shall forthwith be given by the Superintendent of Prison to the authority which granted him parole and copies thereof shall also be sent-- . (i) to the Inspector-General of Prisons, . (ii) to the District Magistrate and the District Superintendent of Police of the District in which the prisoner intends to spend his parole and if the prisoner intends to spend his parole in Greater Bombay, to the Commissioner of Police. . (2) Where a prisoner does not surrender himself to the prison authorities after the expiry of the period of parole, the Competent Authority may, if it is satisfied that any of the conditions on which the parole was granted has not been fulfilled cancel its order granting such parole. An intimation regarding such cancellation shall forthwith be given by the Superintendent of Prison to the officers specified in clause (ii) of sub-rule (1). Upon such intimation, the police authorities may arrest the prisoner, if at large, and remand him to undergo the unexpired portion of his sentence. . 28. Application of certain rules to 28. Application of certain rules to 28. Application of certain rules to parole cases,-- parole cases,-- parole cases,-- The provisions of rules 8(5), 10,11 and 12 shall mutatis mutandis apply in the case of release of prisoners on parole. 14. It would also be useful at this stage to reproduce the provisions of Sections 389(1) and 432 of the Code of Criminal Procedure. -14- . "389 Suspension of sentence pending 389 Suspension of sentence pending 389 Suspension of sentence pending the appeal; release of appellant on the appeal; release of appellant on the appeal; release of appellant on bail,-- bail,-- bail,-- . (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. . 432. Power to suspend or remit 432. Power to suspend or remit 432. Power to suspend or remit sentences,-- sentences,-- sentences,-- . (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. . (2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was, had confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists. . (3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour -15- the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence. . (4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will. . (5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with: . Provided that in the case of any sentence (other than a sentence of fine) passed on male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and,-- . (a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or . (b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail. . (6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property. . (7) In this section and in section 433, the expression ‘‘appropriate Government" means,-- -16- . (a) In cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; . (b) In other cases the Government of the State within which the offender is sentenced or the said order is passed." 15. Thus Rules regarding parole are set out from Rules 18 to 28. Rule 18 prescribes the competent authority for grant of parole over which there is no dispute before us. Rules 19 and 25 have been amended in 1989 by the Prisons (Bombay Furlough and Parole) (Amendment) Rules, 1989 by Notification in the Official gazette dated 21.11.1989 issued by the Home Department, Mantralaya, Mumbai. Earlier Rules 19 and 25 read as under: . 19. When a prisoner may be released 19. When a prisoner may be released 19. When a prisoner may be released on parole -- on parole -- on parole -- A prisoner may be released on parole for such period as the Competent Authority referred to in rule 18 in its discretion may order, in cases of serious illness, or death of any member of the prisoner’s family or of his nearest relatives or for any other sufficient cause. . 25. Extension of the period of 25. Extension of the period of 25. Extension of the period of parole.-- parole.-- parole.-- The Competent Authority may, on the application of the prisoner or otherwise, by an order in writing, -17- extend the period of parole for such further period or periods as may be specified in such order on the same conditions on which the prisoner was originally granted parole or on such other condition as the Competent Authority may determine." The amended Rule 19 has added three very important provisions i.e. (i) it sets out the specific cases in which parole can be granted; (ii) it provides for police report; and (iii) it states the period for which parole can be granted. Rule 19 states that parole cannot be granted for more than thirty days at a time. Rule 25 provides the maximum period for which parole can be extended. These provisions were not there in the earlier Rules. 16. In the Indian Judicial System, normally a person would be a prisoner in the following cases: (a) If he is a detenu; (b) If he is a pre-trial prisoner; (c) after conviction; The last category can be further -18- divided into three parts: (i) Prisoners whose appeals are pending; (ii) Prisoners whose bail applications have been rejected by the High Court; (iii)Prisoners whose convictions have been confirmed by the High Court; Rule 18 of the Prison Rules makes it very clear that the competent authority can grant parole only to a convict. 17. Rules 1 to 17 of the Prison Rules deal with furlough. The question whether Furlough can be granted when the appeal of a prisoner is pending came up for consideration before the Division Bench of this Court in the case of Sharad Bhiku Sharad Bhiku Sharad Bhiku Marchande Vs. State of Maharashtra reported in Marchande Vs. State of Maharashtra reported in Marchande Vs. State of Maharashtra reported in 1991