IMPORTANT POINT
Clause 10 of Parole/Furlough guidelines providing for parole not to be granted when appeal of a convict was pending before High Court did not suffered constitutional invalidity.

JUDGMENT (ORAL)

A.K. Sikri, J. — In these writ petitions, the petitioners have challenged the vires of Clause-10 (under the heading “Regular Parole”) of the Parole/Furlough Guidelines, 2010.

2. Clause10 which is the bone of contention in these petitions, reads as under:

“It is clarified that where an appeal of a convict is pending before the High Court, parole will not be granted since the convict can seek appropriate orders from the High Court.”

Thus, once the appeal against conviction is pending in this Court. Government is disentitled from considering the application for Regular Parole.

3. The grounds on which the validity of the aforesaid Clause is questioned are two fold. It is argued that regular parole is denied during pendency of appeal before this Court for the reason of .the convict being able to seek appropriate orders from this Court; however the considerations which prevail in granting suspension of sentence or interim bail during pendency of appeal are entirely different from considerations for grant of regular parole viz. to maintain family and social ties, serious illness of a family member, critical, conditions in the family on account of accident or death of a family member, marriage of any member of the family of the convict, delivery of a child by the wife of the convict if there is no other family member to take care of the spouse at home and serious damage to life or property of the family of the convict including damage caused by natural calamities. The petitioners contend that the right to regular parole on aforesaid considerations is a valuable right and pendency of appeal is no ground to deny the same and the convicts whose appeals are pending before this Court are being discriminated against.

4. Other contention raised is that though pendency of appeal in the High Court disentitles the convict to regular parole but if the appeal is pending in the Supreme Court challenging the conviction order, no such embargo is laid down.

5. Learned counsel for the respondent, on the other hand, has drawn our attention to the provisions of Section 389 of the Code of Criminal Procedure, 1973 which deals with suspension of sentence pending the appeal and release of the convict on bail. It inter alia provides that the appellate Court may for the reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended if he is in confinement, that he be released on bail. On this basis, it is argued that when the matter is pending before the High Court, the High Court can deal with the situation and the convict is not rendered remediless, this is the genesis and the rationale behind Clause 10.

6. The Supreme Court in Sunil Fulchand Shah v. UOI1, though holding that parole has a different connotation than bail, yet observed that substantial legal effect of both, bail and parole is the release of a person from detention or custody. It was further observed that there are no statutory provisions dealing with the question of grant of parole and grant of parole generally speaking is an administrative action; parole does not suspend the sentence or the period of detention but provides conditional release from custody and changes the mode of undergoing sentence.

7. We are however of the opinion that even when application for interim suspension of sentence or bail is filed by a convict in a pending appeal, it is always open to the convict to seek suspension/bail from this Court. on the grounds as provided for regular parole and the High Court can always take those grounds in consideration while entertaining applications for suspension and/or interim suspension of the sentence. There is nothing in Section 389 or otherwise in law, barring the appellate Court from granting interim bail or suspending the sentence on considerations as for parole. Clause 10 very clearly stipulates that the convict can seek appropriate orders from the High Court which means that the convict can seek th