The power of the State to grant parole during the pendency of an appeal before the Supreme Court is limited, and once the appeal is pending, the State would not entertain the petition for parole.

JUDGMENT

Yogesh Khanna, J. - This petition is filed under Article 226 of the Constitution of India to assail an order dated 31.01.2020 rejecting the petitioner''s representation for grant of parole and to seek a direction in the nature of mandamus to the competent authority to release him on parole.

2. The core issue agitated in this petition is whether this Court can grant a direction in nature of mandamus to the State to release the petitioner on parole in case the appeal of petitioner is pending before the Supreme Court.

3. The learned counsel for the petitioner has referred to Rule 1209 of the Delhi Prison Rules, 2018 which interalia notes:-

"1209. Under-trial prisoners are not eligible for regular parole and furlough, however, may be released on custody Parole, that too by the order of the concerned trial court. It is clarified that where an appeal of a convict against conviction is pending before the High Court, regular parole will not be granted since the convict can seek appropriate orders from the High Court."

4. The learned counsel for the petitioner says since the Rule does not specify if the State can grant parole to the petitioner when his appeal is pending before the Supreme Court, hence this Court can assume the jurisdiction. It is argued parole and suspension of sentence stand on different footing as has been held by the Supreme Court in Dadu @ Tulsidas vs State of Maharashtra Writ Petition (Crl) Nos.169/1999 and 243/1999 decided on 12.10.2000 and it held as under:-

"Bail and parole have different connotation in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a nonbailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word "bail" is surety. In Halsbury''s Laws of England, 4th Edn., Vol.11, Para 166, the following observation succinctly brings out the effect of bail:

The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned.

"Parole", however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody."

5. Hence, it is argued since the parole and bail are two different things, the parole can be granted by the State even whilst the matter is subjudiced before the Supreme Court and hence if an illegal order is passed by the State, this Court can very well assume jurisdiction to correct it.

6. The learned counsel for petitioner argues in K.M.Nanavati vs The State of Bombay, (1961) AIR SC 112 the Supreme Court had essentially decided qua power of suspension of sentence if it can be exercised by State whilst the appeal is pending before the Supreme Court. It was argued this decision does not speak about grant of parole and does not elaborate about the power of the State to grant parole during the pendency of the appeal before the Supreme Court.

7. I have heard the arguments. The submission made by the learned counsel for petitioner is without merit.

8. The Supreme Court in Dadu @ Tulsidas (supra) was dealing with a situation where Section 32A of the NDPS Act was in challenge and essentially an issue before the court. The Court therein held such Article is constitutionally v