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1985 Supreme(Bom) 233
IN THE HIGH COURT OF BOMBAY
C.S. Dharamadhikari V.V. Vaze, JJ.
Jayant Veerappa Shetty another .... Petitioners.
Versus
State of Maharashtra others .... Respondents.
Criminal Writ Petition No. 547 of 1984, decided on 5-9-1985.
Advocates appeared :
M.V. Paranjpe with Rajendra V. Paiand Mrs. Ranjana S. Desai, for petitioners.
R.S. More and J.A. Bardey, P.P., for respondent Nos. 1 to 5.
Adhik Shrirodkar and Ajit Sawant, for respondent No. 7.
The power to grant parole under the Prisons (Bombay Furlough and Parole) Rules, 1959, cannot be exercised while an appeal is pending and the Appellate Court is in seisin of the matter.
Headnote:
PRISONERS - PAROLE - GRANT - LEGALITY - PRISONS (BOMBAY FURLOUGH AND PAROLE) RULES, 1959 - RULE 18 - RULE 19 - CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 389 - INTERPRETATION - CONFLICT BETWEEN PAROLE RULES AND SECTION 389 - HARMONIOUS CONSTRUCTION - POWER OF STATE GOVERNMENT TO GRANT PAROLE - LIMITATIONS - JUDICIAL REVIEW - IMPROPER EXERCISE OF POWER - RELEVANT AND IRRELEVANT CONSIDERATIONS - MOTIVE - GRANT OF PAROLE TO PRISONER WHOSE BAIL WAS CANCELLED BY APPELLATE COURT - IMPROPRIETY - CONSIDERATION OF IRRELEVANT FACTORS - GRANT OF PAROLE TO PRISONER WHO COMMITTED MURDER WHILE ON BAIL - IMPROPRIETY - APPOINTMENT OF JAIL REFORM COMMITTEE BY GOVERNMENT OF INDIA - CONSIDERATION OF BRITISH EXPERIENCE IN ADMINISTRATION OF CRIMINAL JUSTICE ACT, 1967 - ESTABLISHMENT OF PAROLE BOARD - DESIRABILITY.
Fact of the Case:
Petitioners, restaurant owners, faced extortion and threats from notorious gangs led by respondents, who were convicted of murder and granted bail. Despite bail cancellation, respondents were released on parole by the Minister for Jails, raising concerns about the legality of the parole.
Finding of the Court:
The court held that the Prisons (Bombay Furlough and Parole) Rules, 1959, do not apply to the grant of parole to a convicted person whose appeal is pending before the Appellate Court, as section 389 of the Code of Criminal Procedure, 1973, empowers the Appellate Court to pass appropriate orders. The court found that the grant of parole to respondents, who committed murder while on bail, was an improper exercise of power, influenced by irrelevant considerations and motivated by gratitude for past services rendered by the prisoners.
Issues: 1. Whether the Prisons (Bombay Furlough and Parole) Rules, 1959, conflict with section 389 of the Code of Criminal Procedure, 1973? 2. Whether the grant of parole to a convicted person whose appeal is pending before the Appellate Court is legal? 3. Whether the grant of parole to respondents, who committed murder while on bail, was a proper exercise of power?
Ratio Decidendi: 1. The court held that the Parole Rules and section 389 of the Code of Criminal Procedure can co-exist, but the power to grant parole under the Parole Rules cannot be exercised while an appeal is pending and the Appellate Court is in seisin of the matter. 2. The court declared that the Prisons (Bombay Furlough and Parole) Rules, 1959, would not apply to the grant of parole to a convicted person whose appeal is pending before the Appellate Court. 3. The court found that the grant of parole to respondents was an improper exercise of power, as it was influenced by irrelevant considerations, such as gratitude for past services rendered by the prisoners, and motivated by a desire to demonstrate the strength of the Government.
Final Decision: The court partly allowed the petition, declaring that the Prisons (Bombay Furlough and Parole) Rules, 1959, would not apply to the grant of parole to a convicted person whose appeal is pending before the Appellate Court.
2. The respondent-State of Maharashtra has supported the grant of parole under the Prisons (Bombay Furlough and Parole) Rules, 1959 under which the State Government claims legal competence to grant parole to a convicted prisoner on grounds such as the conduct in and outside the jail ; the point of time of parole etc.
3. A perusal of the relevant file No. PAR-1684/18 (544) PRS-3 of the Home Department-which, it would be fair enough to say, was ungrudingly produced by the State-shows that Mrs. Ratnaprabha S. Naik filed an application before the Honourable Minister for Jails on 2-8-1984 requesting that her brother Ramakanth S. Naik who was interned in Thane Central Jail may be released on parole so that he could attend to her in the K.E.M. hospital where she was undergoing treatment. The Hon'ble Minister made an endorsement :
"Secretary (Jails)
Parole granted for one month.
Issue Orders."
Sd/- xxx
The order was forthwith issued by the Assistant Secretary to the Government of Maharashtra directing the Superintendent Thane Central Prison to release Ramakant S. Naik on parole for a period of 30 days. On 29-8-1984 the Commissioner of Police for Greater Bombay wrote to the Secretary to the Government of Maharashtra, Home Department that as per the orders of Government Ramakant S. Naik has been released on parole on furnishing the cash bond of Rs. 2000/- on 6-8-1984. On the same day i.e. 6-8-1984 a letter was received by the Additional Commissioner of Police from the Home Department requiring the latter to inform him as to whether police department recommends the release of the prisoner on parole. The Commissioner complained that the prisoner had been released before any report could be sent on these points. The Commissioner then referred to law and order situation in the city after the communal disturbance and the impending Ganpati and Bakri Id festivals. He apprehended that presence of Ramakant Naik in the city would encourage communal trouble; that he is likely to form a new gang; that his sister's sickness is not of any serious nature requiring his attention and
