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IN THE HIGH COURT OF BOMBAY
S. Sant Singh
VERSUS
Secretary, Home Department, Govt. of Maharashtra
Decided no: DECEMBER 22, 2005
Prisons (Bombay Furlough and Parole) Rules, 1959 - Rule 19 - Criminal procedure Code (2 of 1974), Section 432 - Parole does not amount to suspension of sentence or remission of sentence and is not covered by Section 432 of the Criminal Procedure Code, 1973 - However, Government or competent authority can grant parole to convicts under Rules framed under the Prisons Act. - "Parole" is a form of "temporary release’’ from custody, which does not suspend the sentence or period of detention. Parole does not amount to suspension of sentence. Parole clearly does not fall under remission of sentence. Remission means reducing the period of sentence without changing its character e.g., two years rigorous imprisonment to one year rigorous imprisonment. Thus, as parole does not fall under either of the two categories i.e., suspension or remission, it would not be covered by Section 432 of Criminal Procedure Code. Section 432, Criminal Procedure Code deals with Government’s powers to remit or suspend sentence. As parole does not amount to remission or suspension of sentence parole would not be covered under Section 432 of Criminal Procedure Code. From this, it follows that the Government has no powers to grant parole under Section 432 of Criminal Procedure Code. However, Government or Competent Authority can grant parole to convicts under the Rules framed under the Prisons Act. 1986 Cri LJ 1298 : 1986 (1) BCR 311, Not agreed with. 2000 SCC (Cri) 659 - Referred.
Prisons (Bombay Furlough and Parole) Rules, 1959 - Rules 19 and 25 (as amended in 1989) - Bombay Prison Rules, Rules 18 to 28 - Criminal Procedure Code, 1973, Section 432 - Sentence under Section 302, IPC - Parole application - Appeal pending - Operation of wife - Not sufficient ground to grant parole - Competent authority having power to entertain application under Prison Act, no matter if appeal is still pending with clear directions to file application afresh. - The authorities have the power to entertain and grant an application for grant of parole even though the appeal of the petitioner is pending before the appellate Court. In the present case, the appeal of the petitioner for grant of parole came to be rejected. As mentioned earlier, the application for parole was made on the ground of ill-health of his wife. Now more than a year has elapsed since then. In this view of the matter if at present the health of wife of the petitioner is serious, the petitioner would be at liberty to make a fresh application for parole annexing recent medical certificates in support of his claim that she is serious. If any such application is preferred by the petitioner, the respondents shall dispose of the same expeditiously.
Prisons (Bombay Furlough and Parole) Rules, 1959 - Rules 19 and 25 (as amended in 1989) - Criminal Procedure Code, 1973, Sections 432 and 389 - Parole - Application rejected due to pendency of appeal - State Government’s power to grant parole not obstructed because of pending appeal - Power exercised under Section 389/432 of Cr PC not in conflict with Government’s power to grant parole.
Prisons (Bombay Furlough and Parole) Rules, 1959 - Rules 25 and 19 (as amended in 1989) - Criminal Procedure Code, 1973, Section 432 - Grant of parole - Government/Competent authority to decide it - Merely because convict prefers an appeal before appellate Court would not divest Government of its powers under Prison Act to deal with management of convict.
Criminal Procedure Code, 1973 - Section 432 Power of Government to suspend or remit sentence Parole not amounting to remission or suspension of conviction It is not covered within frame work of Section 432, Cr PC.
Criminal Procedure Code, 1973 - Section 432 Prisons Act, 1894, Sections 59(5) and 28 Grant of parole Jurisdiction of competent authority Amendment of Bombay Prison Rules and Prisons Act View of Division Bench in decision (1986) 1 Bom CR 311, no mere a good decision depicting erroneous view.
Criminal Procedure Code, 1973 - Section 432 Prisons (Bombay Furlough and Parole) Rules, 1959, Rules 25 and 19 Judicial review Scope under Section 432, Cr PC Parole cannot be granted by Government under Section 432, Cr PC However, it can grant parole under Rules framed under Prisons Act Power of execution would not create any conflict with Court’s power to g rant bail or suspend sentence.
Criminal Procedure Code, 1973 - Section 432 Prisons (Bombay Furlough and Parole) Rules, 1959, Rules 25 and 19 Bail distinguishable from parole Bail granted Accused released from custody Court can certain constructive control through sureties Parole different from bail Parole is a temporary form of release to convict with conditional release while undergoing sentence.
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 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 veerappa Shetty and another Vs. The State of maharashtra and others, reported in 1986 Cri. L. J. 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 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 Shettys 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.
( 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 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 vs. The State of Maharashtra and 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 suspension of s
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