IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.795 of 2009 CHANDRA BHUSHAN PANDIT SON OF LATE THAKUR PANDIT, RESIDENT OF VILLAGE MOAP KHURD, P.S. TARARI AT PRESENT IMADPUR, DISTRICT BHOJPUR Versus THE STATE OF BIHAR & ORS ----------- For the petitioner : Mr.Devendra Kumar Sinha, Sr.Advocate Mr.Bajrangi Lal, Advocate For the State : Mr. Prabhakar Tekriwal, G.A.I O r d e r 5 30.7.2010 The core issue is whether the total period of release of the petitioner on Parole; once by the State Government for 15 days in November, 2005 under section 31C of the Prisons Act, 1894 and the other by this court by order dated, 9.5.2007 passed in Cr. WJC No.214 of 2007, for a period of six months; would be counted towards total period of his sentence. 2. The case of the petitioner in short is that he was awarded R.I. for life under section 302/149 of the Penal Code vide order dated 14.2.1984, passed by the 4th Additional District & Sessions Judge, Bhojpur, in Sessions Trial No.103/83 and was further directed to under go two years R.I. under section 27 of the Arms Act. However, both the sentences were directed to run concurrently. The petitioner preferred Criminal Appeal No.195/86 in the High Court, which was dismissed by judgment and order dated 5.12.1997 and the same remained unaltered up to the Hon‟ble Apex Court. 3. The petitioner was earlier granted 15 days parole vide letter no.4712, dated 13.8.2005 of I.G. Prisons (Bihar) and he 2 availed the benefit of the same from 13.11.2005 to 29.11.2005. This court by order dated 9.5.2007, passed in Cr.W.J.C.No.214 of 2007, also granted six months parole. The petitioner was released from jail custody only on 16.2.2008 and he returned to imprisonment on 18.8.2008, in accordance with the order of this court. Being aggrieved by the order of grant of parole of six months by this court, the State preferred S.L.A.(Crl) no.7202/07 before the Hon‟ble Apex Court, which was dismissed by order dated 8.1.2008, as having become infructuous. However, the Hon‟ble Apex Court kept the issue of Law open. It would be apt to quote the order of the Hon‟ble Apex Court which runs as under: “The period of six months for which the respondent was allowed to be on Parole having been expired, this petition has become infructuous. The Special leave petition is dismissed as having become infructuous. However, the question of law shall remain open.” 4. It appears that it was not brought to the notice of the Hon‟ble Apex Court that the order dated 9.5.2007 passed by this court had not taken its effect, as the petitioner was released on parole, only on 8.2.2008, after filing of the contempt application. 5. It is relevant to state here that while granting Parole this court had not issued any direction whether the period of six months‟ parole would be counted towards total period of his sentence. 6. A counter affidavit has been filed on behalf of the State. 3 The State acknowledged that petitioner was twice released on Parole, once by the State and the other by this Court. In paragraph 5 of the counter affidavit filed on 14.5.2010, it has been stated that the petitioner has by now completed 13 years 4 months and 24 days of actual confinement, and 17 years 10 months 15 days with remissions. The State also admitted in paragraph 5 that the petitioner sustained paralytic stroke in jail and was admitted to Sadar Hospital, Buxar from where he was referred to P.M.C.H., Patna for treatment. It was also stated that the petitioner was released on parole for 15 days on 11.11.2005, who returned on 29.11.2005 in accordance with the direction contained in letter no.4712, dated 13.8.2005 of I.G. Prisons, Bihar. 7. The State contends that as the petitioner was released for 15 days on parole by the State Government under section 31-C of the Prisons Act (Bihar Amendment), the same would not be counted towards his total sentence, as it was not a release on parole under sub-section (3) of Section 31-B of Prisons Act (Bihar Amendment). In support of his submissions, learned counsel for State also relied upon Rule 484 of Bihar Jail Manual and Section 15(2) of the Bihar Prisons (Parole) Rule 1973. He contends that the period of six months of parole granted by this court would not also be counted towards the total sentence, as there was no such direction in the court‟s order to count such period towards sentence. 8. The term „parole‟ has not been defined either in I.P.C. or 4 Cr.P.C. It has a different connotation then bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. The meaning of the term „parole‟ and the issue whether release on parole in a case of preventive detention under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as „COFEPOSA‟) would be counted towards the period of detention, was one of the core issues before the Constitution Bench, in the case of Sunil Fulchand Shah Vs Union of India, reported in A.I.R. 2000 SC 1023. The Hon‟ble Apex Court after noticing various case laws, texts and dictionary meanings held that parole is a form of temporary release from custody, which does not suspend the sentence of the period of detention, but provides conditional release from custody and changes the mode of undergoing the sentence. The relevant extract of para 11 of the judgment is quoted herein below: “11. ……………According to Words and Phrases (Words and Phrases (Permanent Edition): Vol.31: Pp.164, 166, 167; West Publishing Co.) „Parole‟ ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. People ex.rel.Rainone v. Murphy, 135 NE 2nd 567, 571, 1 N.Y. 2d 367, 153 N.Y.S.2d 21.26”. „Parole‟ does not vacate sentence imposed, but is merely a conditional suspension of sentence. Wooden v. Goheen, Ky. 255 SW 2d 1000, 1002.” “A „parole‟ is not a „suspension of sentence, but is a 5 substitution, during continuance of parole, of lower grade of punishment by confinement in legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the Court. Jenkins v. Madigan, C.A.Ind. 211 F. 2d 904, 906. “A „parole‟ does not suspend or curtail the sentence originally imposed by the Court as contrasted with a „commutation of sentence‟ which actually modifies it”. 9. The position of parole was further clarified by the Apex Court in paragraph 16 which runs as under: “16. Since, release on parole is only a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and, thus, needs to be counted towards the total period of detention unless the rules, instructions or terms for grant of parole, prescribe otherwise………” “……….the period of detention would not stand automatically extended by any period of parole granted to the detenu unless the order of parole or rules or instructions specifically indicates as a term and condition of parole, to the contrary. The period during which the detenu is on parole, therefore, requires to be counted towards the total period of detention”. 10. In view of ratio laid down by the Hon‟ble Apex Court, the position in law is clear that release on parole would be counted towards the total period of sentence of a convict, unless the order of parole or rules or instructions prescribes otherwise. 6 11. In the backdrop of the aforesaid settled principle, I now proceed to examine whether release of the petitioner on parole for 15 days in the year 2005 and six months in the year 2007-08 would be counted towards his total sanction or not. 12. The Bihar Amendment in section 31 of the Prisons Act, 1894 substituted by Bihar Act 23 of 1956, regulates the terms and conditions of release of prisoner on parole. The amendment in section has been brought by inserting a new heading e.g. Part 6A after Part 6 of the Prisons Act. Section 31 A provides for constitution of District Parole Board. Section 31-B relates to release of a prisoner on parole. It states that the State Government or any authority or its delegate may on recommendation of the District Parole Board, may release a prisoner on parole for any period not exceeding 30 days at a time excluding the time required for journey and days of departure from and arrival at the prison. Section 31-B(d) provides that in case of second or subsequent release there should be a gap of not less than six months from the period of expiry of the previous release. The proviso to sub-clause (d) of Section 31-B puts the limitation on a number of times that a prisoner could be released on parole which has been limited to three releases. 13. Section 31-B also lays down eligibility conditions for release of the prisoner. Section 31-B(3) states that period of release of a prisoner under sub-section (1) shall count towards his total period of sentenced provided that he surrenders on due date and his conduct his satisfactory (The emphasis is mine). 7 Section 31-B is reproduced as under: ”31-B. Release of prisoners on parole- The State Government, or any authority to which the State Government may delegate its powers in this behalf, may, on recommendation of the District Parole Board, direct that a prisoner may be released, either without conditions or upon such conditions as may be specified in the direction, for any period not exceeding thirty days at a time, excluding the time required for journeys and days of departure from, and the arrival at, the prison: Provided that no prisoner shall be released under this sub-section, unless- (a) he has served a period of not less than one year excluding remission of his sentence; (b) his conduct in prison has been, in the opinion of the District Parole Board, uniformly good; (c) there is, in the opinion of the District Parole Board, reasonable probability, that during the period of his release he shall not commit any crime; and (d) in the case of a second or subsequent release, not less than six months have elapsed from the date of the expiry of his previous release: Provided further that no prisoner shall be released under this sub-section more than three times. (2) The provisions of sub-section (1) shall not apply to a prisoner- (i) who has been convicted of an offence specified in the schedule annexed to this part; or (ii) who has been classified as a habitual criminal under the rules made under the Prisons Act, 1894 (IX of 1894), and has had more than three previous 8 convictions. (3) The period of release of prisoner under sub- section(1) shall count towards the total period of his sentence, provided that he surrenders on the due date and his conduct has been satisfactory during the period he was outside the jail on parole”. 14. Under section 31-C, the State Government or its delegatee can release prisoner on parole or for a period not exceeding 15 days for special reason excluding the time required for journey and days of departure from, and arrival at the prison. It is relevant to state here that the section is silent whether release of prisoner under this provision would be counted towards his total period of sentence. Section 31-C is reproduced as under: “31-C. Power to release prisoners for special reasons- (1) Notwithstanding anything to the contrary contained in Section 31-B or any other law for the time being in force, the State Government, or any authority to which the State may delegate its powers on the behalf, may, for any special reasons, direct that prisoner may be released for a period not exceeding fifteen days (excluding the time required for journeys and the days of departure from, or arrival at, the prison), either without conditions or upon such conditions specified in the direction as the prisoner accepts, and may, at any time cancel his release. (2) The authority directing the release of any prisoner under sub-section (1) may require him to enter in bond with or without sureties for the due observance of the conditions specified in the direction. 9 (3) If any person released under sub-section (1) fails to fulfils any of the conditions imposed upon him under the said sub-section or in the bond entered into by him, the bond shall be liable to the penalty thereof: Provided that no prisoner shall, without special sanction of the State Government, be released under this section, unless- (i) he has served at least six months of his sentence including remissions; (ii) his conduct has been, in the opinion of the Superintendent of the Jail in which he is serving his sentence, uniformly good; (iii) he is not a habitual criminal under the rules made under the Prisons Act, 1894 (IX of 1894); and (iv) the offence for which he has been convicted, does not, in the opinion of the autority directing the release, involve gave moral turpitude or mental depravity”. 15. Section 31-D relates to surrender of a prisoner on the expiry of period of his temporary release under section 31B or 31C and the consequences following, if he or she does surrender in time. 16. Section 31-D would not be relevant in the instant case, as the petitioner has admittedly surrendered in time, and thus the provision is not quoted. 17. Rule 484 of the Bihar Jail Manual relied upon by the State would not be relevant in this case, as it does not concern release on parole but relates to method to be adopted in calculating the date of release of a convicted prisoner vis-à-vis 10 his being on bail or having escaped. 18. Rule 15 of the Bihar Jail Manual relied upon by the State relates to prisoner who have not surrendered in time as provided in section 31-D of the Prisons Act (Bihar Amendment). Thus, the vital provisions with which we would be concerned are section 31-B or section 31-C of the Prisons Act, 1900 (Bihar Amendment) inserted in part 6A of the Act. 19. It is an admitted case of the State that the petitioner was granted first parole of 15 days in the year 2005 from 11.11.2005 to 29.11.2005 adding the time of journey both ways. The issue is whether this period would be counted towards the total period of sentence or not. The stand of the State is that section 31-C does not state that the release on parole under this provision would be counted towards total period of sentence. It would be relevant to state here that the aforesaid provision also does not state otherwise that the period of parole under this provision would not be counted towards the total period of sentence. In such circumstances, the ratio laid down in case of Sunil Fulchand Shah (supra) would be fully applicable, that release of a prison on parole would be counted towards his total sentence unless the rules and instruction prescribes otherwise. The plea of State to the contrary would be in teeth of judgment of Hon‟ble Apex Court and is accordingly rejected. The inference that follow is that the period of release on parole by Government or its delegatee under section 31-C would be counted towards his total sentence, as the provision does not 11 prescribe any rule or instructions to the contrary. 20. Section 31-B of the Prisons Act (Bihar Amendment) states that on the recommendation of the Parole Board, the State Government or its delegatee can release the prisoner on parole for a maximum period of 30 days which shall be counted towards his total period of sentence. The main difference between the two provisions is that in section 31C the State Government or its delegate without waiting for the recommendation of the Prison Board can release the prisoner on parole for a period of 15 days in special circumstances. The object behind framing of Rule 31C is that no prisoner whose immediate release would be of utmost necessity should suffer on account of procedural niceties. This is the reason that period of such release has been shortened to 15 days to strike a balancing restrain in exercise of such extraordinary power vis-à- vis to meet the cause of immediate release in special circumstances. For instance, a prisoner who suffers a stroke or if his son or wife dies could be released immediately in appropriate case, to attend to the situation, which otherwise could consume some time in going through the procedural norms. In both sections 31-B and 31-C, the authorities releasing the prisoner on parole is the same and the condition or eligibility criteria requisite for release is almost equally stringent. The only limitation is that the release under section 31C could only be for a period of 15 days. It is thus obvious that release under section 31-C would be counted towards total sentence and this is the 12 reason the legislature has deliberately not used any expression to the contrary. 21. Thus in view of discussions made above, the release of the petitioner by the State Government in the year 2005 (from 13.11.2005 to 29.11.2005) for a period of 15 days would be counted towards his total period of sentence. 22. Now I come to the second issue whether release of the petitioner on parole for six months pursuant to the order of this court would be counted towards his total period of sentence or not. 23. The Apex Court in the case of Sunil Fulchand Shah (supra) has observed that if the authorities concerned have unjustifiably refused the release of a prisoner on parole, the High Court under its power under Article 226 of the Constitution can direct temporary release of such detenu in appropriate cases. 24. The Apex Court in the case of Avtar Singh Vs State of Haryana and another, reported in 2002 SC 1109 reiterated the earlier view that the parole is essentially an executive and administrative function and now it has become an integral part of Justice Delivery System. The Apex Court held that though the case of Sunil Fulchand Shah (supra) was a case of preventive detention, still the principles laid down in respect of grant of parole would also apply in the case of punitive detention, which is the case here. 25. It would be appear from the State affidavit that the petitioner had suffered paralytic stroke in the year 2005 and the 13 State Government itself released the petitioner on parole for a period of 15 days. This court noticing that the right part of the petitioner‟s body has become immobile on account of paralytic stroke, directed the release of the petitioner for a period of six months for his treatment at P.M.C.H. or any other Hospital, which the Doctors of P.M.C.H. advised. It is the case of the petitioner that as per conditions laid down in release order, he continuously underwent treatment and remained in Hospital throughout. 26. The main issue is whether the whole period of six months would be counted towards total period of his sentence or maximum of one month as provided in section 31-B(3). The aspect whether the prisoner could have been released beyond a period of one month at a time, is not an issue in this case. 27. Section 31-B states that the State Government or its delegatee can release a prisoner on parole subject to fulfilling certain conditions for a period up to maximum of 30 days. Section 31-B (3) states that such period would be counted towards the total period of sentence. 28. If parole of one month granted by the State Government can be counted towards the period of sentence, it is unconscionable to visualize that the release of the petitioner on parole by this court at least up to 30 days would not be counted towards the total period of sentence. The High Court exercises its supervisory and quasi judicial power when the State functionaries exercise these powers unjustly or in contravention 14 of the provisions of law. Thus, as against the total period of six months of parole granted by this court, in my view, one month of it, would be counted towards the total period of sentence in view of section 31-B(3) of the Prisons Act, 1894. 29. Thus in total, the period of 15 days earlier granted by the State Government in the year 2005 under section 31-C, and one month as against six months of parole granted by this Court would be counted towards his total period of sentence. 30. It is relevant to state herein that section 31B also provides that a prisoner during his entire tenure of imprisonment can be released on parole up to a maximum of three times, provided there is a gap of at least six months from the date of expiry of last release. 31. In the instant case, the petitioner has been granted only two paroles which is well within maximum number of three paroles that could be granted to a prisoner. Further more the second release of the petitioner on parole by this court was also beyond the period of six months from the date of expiry of the first period of release, as required under Section 31-B(d) of the Prisons Act. 32. In the aforesaid backdrop, this court directs the respondent State to count the period of 45 days of release of the petitioner on parole towards his total period of sentence, while considering the representation of the petitioner and also its own affidavit that he had already completed 13 years 4 months and 24 days of actual confinement and 17 years 10 months 15 days 15 KHAN A.F.R. with remissions. As per the petitioner, the State had made the aforesaid calculation of period of incarceration much prior to filing of its affidavit, dated 4.3.2010. The representation, if any on the record or if one is filed, must be disposed of expeditiously, preferably within two months from the date of receipt/production of a copy of this order. 33. With the aforesaid observations and directions, this application stands allowed to the extent indicated above. (Samarendra Pratap Singh,J)