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2013 Supreme(Raj) 158
RAJASTHAN HIGH COURT
Ramesh Kumar Vs. State of Raj. & Ors. (Maheshwari, J.)
HON'BLE DINESH MAHESHWARI, HON'BLE R.S. CHAUHAN, HON'BLE SANDEEP MEHTA, JJ.
Ramesh Kumar
Versus
State of Rajasthan & Ors.
Larger Bench Civil Reference No.1 of 2013, decided on 16.04.2013
Mahesh Bora, Senior Advocate with Nishant Bora, Kalu Ram Bhati, Ashok Chhangani, Sunil Purohit, D.N. Yadav and Sushil Bishnoi;
G.R. Punia, Senior Advocate & Addl. Advocate General with Mahendra Choudhary & Mr. Praduman Singh, Assistants to AAG, K.R. Bishnoi, Govt. Counsel, B.K. Mehar, Govt. Counsel, Ashok Soni and Brijesh Purohit
Headnote:Rajasthan Prisoners Release on Parole Rules, 1958, Rule 15 & 19 — Powers of State Government to grant Parole — Whether the right of an accused/prisoner/convict to be released on parole can be considered by State Government under the provisions of the Rules of 1958 during the pendency of any appeal against his/her conviction? — Held — Cannot be considered by the State Government under the provisions of Rules of 1958 during the pendency of any appeal filed by him/her against his/her conviction. (Para 69)
Reference answered in negative.
jktLFkku isjksy ij cUnh fueqZfDr fu;e] 1958] fu;e 15 o 19 & isjksy eatwj djus dh jkT; ljdkj dh 'kfDr & D;k fdlh vfHk;qDr@cUnh@nks"kfl) dh nks"kflf) ds fo:) vihy ds yfEcr jgus ds nkSjku isjksy ij fueqZDr djus ds muds vf/kdkj ij 1958 ds fu;eksa ds izko/kkuksa ds rgr jkT; ljdkj }kjk fopkj fd;k tk ldrk gS\& vfHkfu/kkZfjr & viuh nks"kflf) ds fo:) mlds }kjk nk;j fdlh vihy ds yfEcr jgus ds nkSjku 1958 ds fu;eksa ds izko/kkuksa ds rgr jkT; ljdkj }kjk fopkj ugha fd;k tk ldrkA
jsQjsal dk izR;qRRkj udkjkRed esa fn;kA ¼in la- 69½
Based on the provided legal document, here are the key points regarding the reference question:
- The Larger Bench was constituted to resolve conflicting views from different Division Benches on whether a convict's right to parole can be considered under the Rajasthan Prisoners Release on Parole Rules, 1958 during the pendency of an appeal against conviction. (!)
- The specific question referred for adjudication is: "Whether the right of an accused/prisoner/convict to be released on parole can be considered by the State Govt. under the provisions of the Rajasthan Prisoners Release on Parole Rules, 1958 during the pendency of any appeal filed by him/her against his/her conviction." (!)
- The matter originated from a letter petition by convict Ramesh Kumar, who was serving a life sentence and had a special leave to appeal pending before the Supreme Court, claiming he was ineligible for parole solely because of the pending appeal. (!) (!)
- There were divergent views in previous Division Bench decisions: one line of view (e.g., Bhanwar Lal Godara and Gani Khan) held that parole could be granted after conviction even if an appeal was pending, while another line of view (Umesh Kumar Singh) held that the State Government could not exercise parole powers while an appeal was pending and the appellate court was in seisin of the case. (!)
- The core legal principle relied upon is the Constitution Bench decision in K.M. Nanavati vs. State of Bombay, which established that so long as the judiciary has the power to pass an order in a pending case (specifically under Section 426 of Cr.P.C. 1898/Section 389 of Cr.P.C. 1973 regarding suspension of sentence pending appeal), the power of the Executive is limited. (!) (!) (!)
- The Supreme Court in Nanavati harmonized Section 401 (1898)/Section 432 (1973) (powers of the Executive) with Section 426 (1898)/Section 389 (1973) (powers of the Appellate Court), ruling that the Executive's power does not cover the period when an appeal is pending and the Court is seized of the matter. (!) (!) (!)
- Since the Rajasthan Prisoners Release on Parole Rules, 1958 were framed under Section 401(6) of the Code of Criminal Procedure, 1898 (equivalent to Section 432 of the Code of 1973), the Supreme Court's dictum in Nanavati applies directly, rendering the Rules inoperative during the pendency of an appeal. (!) (!)
- The Larger Bench concluded that granting parole during the pendency of an appeal would lead to a conflict of jurisdiction between the Judiciary and the Executive, which the Constitution makers did not intend. (!)
- The Bench respectfully concurred with the observations in Umesh Kumar Singh and held that the decision in Bhanwar Lal Godara was not in conformity with the Constitution Bench decision in K.M. Nanavati. (!)
- The answer to the referred question of law is in the negative: the right to be released on parole cannot be considered by the State Government during the pendency of an appeal against conviction. (!) (!)
Preliminary
This Larger Bench has been constituted under the orders of Hon’ble the Chief Justice for resolution of apparently divergent, and rather conflicting, views expressed by different Division Benches of this Court on the issue of the right of an accused/prisoner/convict to be released on parole by the State Government under the provisions of the Rajasthan Prisoners Release on Parole Rules, 1958 during the pendency of an appeal filed by him/her against conviction. The question referred for resolution and adjudication is as under: -
“Whether the right of an accused/prisoner/convict to be released on parole can be considered by the State Govt. under the provisions of the Rajasthan Prisoners Release on Parole Rules, 1958 during the pendency of any appeal filed by him/her against his/her conviction.”
Relevant Background Aspects
2. The matter wherefrom this Larger Bench Reference has been made, is a Letter Petition sent by the convict-prisoner Ramesh Kumar S/o Dashrath Kumar Khatri from Central Jail, Bikaner stating the grievance that his case for grant of permanent parole was not being considered despite being eligible therefor. A notice to show cause was issued in the matter on 22.08.2012. The respondents have stated in their reply, inter alia, the facts that the prisoner concerned was convicted by the judgment and order dated 31.01.2002 passed by the Additional Sessions Judge, Barmer in Sessions Case No.28/1998 for the offences under Sections 302,364 and 120B IPC; and was awarded varying sentences, including life imprisonment for the offence under Section 302 IPC.
3. The respondents have further pointed out that against the judgment and order aforesaid, the prisoner filed an appeal, being D.B. Cr. Jail Appeal No.154/2002 that was dismissed by this Court by the judgment dated 02.03.2006. However, a Petition for Special Leave to Appeal against the said judgment is pending consideration before the Hon'ble Supreme Court.
4. The respondents have also pointed out that the petitioner had been transferred to Open Air Camp, Bichhwal, Bikaner and is serving the sentence thereat since 10.02.2008. It has also been pointed out that when the matter of the petitioner was sent for consideration of permanent parole, it was sent back to the jail authorities by the Director General (Prisons) on 24.07.2012, on the ground that pending his appeal before the Hon'ble Supreme Court, the prisoner was not entitled to be released on permanent parole.
5. The respondents have referred to the provisions of the Rajasthan Prisoners Release on Parole Rules, 1958 (‘the Parole Rules’/‘the Rules of 1958’ hereafter) but then, have averred that a Division Bench of this Court in the case of Umesh Kumar Singh @ Munna Singh vs. The State of Rajasthan & Ors : D.B. Civil Writ Petition (Parole) No.2138/2011, by the order dated 15.06.2012, has concluded that during the pendency of appeal before the Appellate Court, a prisoner is not entitled to be released on parole. It has been pointed out that pursuant to the order in Umesh Kumar Singh (supra), the State Government has issued a circular dated 26.07.2012 to the effect that the prisoners, whose appeals are pending consideration, are not entitled to be released on parole.
6. On the matter being taken up for consideration on 11.01.2013 before a Division Bench of this Court, the learned counsel appearing for the petitioner referred to the two earlier Division Bench decisions: one in the case of Bhanwar Lal Godara & Ors. vs. State of Rajasthan & Ors : 2005(1) WLC (Raj.) 93 = RLW 2005(2) Raj. 879; and another in D.B. Cr. Appeal No.343/2002 : Gani Khan vs. State of Rajasthan. It was submitted that outcome of both these cases has been that though during the pendency of trial, an accused is not entitled for parole under the Rules of 1958 but, after conviction he may be released on parole; and even in the matters pending in appeal and even after rejection of the application for suspension of execution of sentenc
