1. -By order dated 14.10.2009, following question was settled for determination:

"WHETHER the Parole Committee/District Magistrate or any other Authority other than the Courts are authorised to release the convicts on parole under the Rajasthan Parole Rules, when the trial or appeal is pending?"

2. While meeting with the question aforesaid, it is contended by Shri NA Naqvi, learned Additional Advocate General, that the issue as to whether the Parole Committee/District Magistrate or any other Authority other than the Courts are authorised to release the convicts on parole under the Rajasthan Parole Rules, when the appeal is pending, was considered by Division Bench of this Court in Bhanwar Lal Godara v. State of Rajasthan and Ors. reported in 2005 (1) Cr.L.R. (Raj.) 434 . The Division Bench in the case aforesaid held as under:

"10. It may thus be inferred that when a prisoner is released temporarily before the expiry of a sentence on the promise of return to jail, he is released on parole. To release a prisoner on parole is an executive function to be exercised within the limits. Release on parole does not change the status of prisoner. It is a provisional release from confinement but is deemed to be a part of the imprisonment. In Rajasthan a prisoner sentenced to imprisonment for not less than one year may, subject to exceptionally good behaviour, be allowed by the Superintendent Jail, to submit an application for parole, which has to be forwarded to the District Magistrate who may further forward it to the appropriate committee. If a prisoner who has completed with remission, one fourth of his sentence, subject to good conduct in Jail, may be released on first parole for 20 days. In emergent cases the Superintendent of Jail has right to grant parole upto a period of seven days.

11. So far as suspension of the sentence for the period when the appellate Court, is in seizin of the appeal is concerned it can be granted by the appellate Court itself Under Section 389 Cr.P.C. When the application of a prisoner seeking suspension of sentence is rejected and criminal appeal is pending, in that eventuality the prisoner, in our opinion still has a right to move an application for parole if he has completed with remission, one fourth of his sentence subject to his good conduct in jail. In emergent cases however application may be disposed of by the Superintendent of Jail as per parole rules.

12. Since orders granting parole are to be passed during the pendency of criminal appeals preferred by the prisoners, we issue following directions:

(i) It shall be the duty of Superintendent Jail to make an endorsement about the details of pendency of the criminal appeal, before forwarding the application to the District Magistrate.

(ii) If the District Magistrate takes decision to further forward the application to the Parole Committee, the information shall necessarily be sent forthwith to the Deputy Registrar (Judicial) of the High Court for enclosing the same with the pending appeal of the prisoner.

(iii) The decision taken by the Parole Committee shall also be forwarded to the High Court without any delay.

(iv) In the event of granting emergent parole it shall be the duty of Superintendent Jail to immediately transmit copy of the order to the Deputy Registrar (Judicial) of the High Court for appending the same in pending appeal."

3. We have considered the other issue regarding authority of the Parole Committee/District Magistrate or any other authority than the Courts for release of an accused during pendency of trial and we are of the view that such release is not permissible in eye of law.

4. As per Section 432 Cr.P.C., when any person has been sentenced to punishment for an offence, the appropriate Government, may at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. Sub-section (5) of Sec