Headnote
PRISONERS - PAROLE - RULES - VALIDITY - Rajasthan Prisoners Release on Parole Rules, 1958 - Whether a prisoner, whose appeal against order of his conviction is pending, would be entitled to benefit of parole under the Rules of 1959?
Fact of the Case:
Petitioner, serving life imprisonment for murder, sought release on parole under the Rajasthan Prisoners Release on Parole Rules, 1958 (Rules of 1958). The District Parole Advisory Committee denied parole on flimsy grounds. Petitioner challenged the denial, arguing that the Rules of 1958 applied to prisoners with pending appeals and that a Division Bench judgment denying parole to such prisoners was incorrect.
Finding of the Court:
The court held that the Rules of 1958 were validly promulgated under the Prisons Act, 1894, and that the Division Bench judgment denying parole to prisoners with pending appeals was incorrect. The court referred the question of whether prisoners with pending appeals are entitled to parole to a Larger Bench for authoritative pronouncement.
Issues: 1. Whether the Rules of 1958 were validly promulgated. 2. Whether the Division Bench judgment denying parole to prisoners with pending appeals was correct.
Ratio Decidendi: 1. The court held that the Rules of 1958 were validly promulgated under the Prisons Act, 1894, because: - The Rules were made in exercise of the powers conferred on the State Government under Section 59(1)(29) of the Prisons Act, 1894. - The mere mention of Section 432 of the Code of Criminal Procedure, 1973, as the source of power in the caption of the Rules did not invalidate the Rules. - The State Government had the power to make the Rules under Section 59(1)(29) of the Prisons Act, 1894, even if the Rules were inconsistent with Section 432 of the Code of Criminal Procedure, 1973. 2. The court held that the Division Bench judgment denying parole to prisoners with pending appeals was incorrect because: - The judgment was based on a misinterpretation of the Supreme Court judgment in K.M. Nanavati v. State of Bombay, which dealt with the power of the Governor to suspend sentence during the pendency of an appeal. - The power to grant parole is an executive function that is not available to any court, including the High Court. - A prisoner is entitled to approach the High Court to challenge the denial of parole, but the High Court can only examine the validity of the denial, not grant parole itself.
Final Decision: The court referred the question of whether prisoners with pending appeals are entitled to parole to a Larger Bench for authoritative pronouncement.
JUDGMENT
1. 1. This writ petition under Article 226 of the Constitution of India has been filed by Sanjay Jain @ Nawab, who, following his conviction under Section 302 of the I.P.C., is serving sentence of life imprisonment awarded by learned Special Judge (Sati Niwaran) & Additional Sessions Judge, Jaipur City, Jaipur, vide judgment dated 16.03.2012 in Sessions Case No.17/2006. Appeal filed by him against aforesaid judgment of conviction and sentence, being Criminal Appeal No.313/2012, is pending before this Court for decision.
2. On the last date of hearing, learned Advocate General was called upon to address the court on the question whether the Rajasthan Prisoners Release on Parole Rules, 1958 would be applicable to prisoners serving their sentence, whose appeals against conviction are pending before this court?
3. Shri B.R. Choudhary, learned counsel for petitioner argued that petitioner is in jail ever since his initial arrest because during trial also he was not on bail. He continues to be in jail even after his conviction. He has thus served as many as six years of sentence. His conduct inside the jail and behaviour with the inmates has been exemplary and unblemished. No complaint about his conduct has been received by the jail authorities. He is, therefore, entitled to be released on first regular parole of twenty days in accordance with Rule 9 of the Rajasthan Prisoner Release on Parole Rules, 1958 (for short, 'the Rules of 1958').
4. Petitioner applied for his release on first parole under the Rules of 1958 to the District Parole Advisory Committee, Jaipur, which, however, vide its resolution dated 16.07.2012, decided not to grant parole to petitioner on flimsy and mechanical ground of adverse report sent by the police.
5. Learned counsel for petitioner submitted that respondents in reply to writ petition have relied on Division Bench judgment of this court in Umesh Kumar Singh @ Munna Singh v. The State of Rajasthan - 2012 (3) WLC (Raj.) 739 to argue that those convicts, whose appeals against conviction are still pending before this court, are not entitled to be released on parole. Accordingly, the Director General (Prisons) has issued a Circular No.18324-60 dated 26.07.2012 and the Additional chief Secretary (Home) also issued a Circular No.Pa.8(1)/Home-12/Pri./2007 dated 30.08.2012 inconformity with aforesaid Division Bench judgment of this court in Umesh Kumar Singh.
6. Shri B.R. Choudhary, learned counsel for petitioner, further submitted that aforesaid Division Bench judgment of this court does not law down correct law inasmuch as it has not followed previous two Division Bench judgments of this Court in Bhanwar Lal Godara and Others v. State of Rajasthan and Others - 2005 (1) WLC (Raj.) 93 and Gani Khan v. State of Rajasthan - 2010 (1) Cr.L.R. (Raj.) 378 , whereby two different Division Benches respectively at the principle seat at Jodhpur and bench at Jaipur, held that even when appeal filed by a convict prisoner against his conviction is pending and his application for suspension of sentence has been rejected, he can still be granted parole provided he has completed 1/4th of his sentence with remission.
7. Shri B.R. Choudhary, learned counsel for petitioner next argued that aforesaid Division Bench judgment in Umesh Kumar is also contrary to Constitution Bench judgment of the Supreme Court in Sunil Fulchand Shah v. Union of India and Others - (2000) 3 SCC 409. The Division Bench in Umesh Kumar has not correctly appreciated the concept of parole in its true perspective which is entirely different than suspension or remission of sentence. In this connection, learned counsel for petitioner has also relied on Full Bench judgment of the Bombay High Court in S. Sant Singh v. Secretary, Home Department, Government of Maharashtra and Others, (2006 Cr.L.J. 1515).
8. Shri G.S. Bapna, learned Advocate General appearing on behalf of respondents State, has argued that there can be no distinction between cases of those
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