Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(Mad) 3917

2011 (5) CTC 353, 2011 (2) LW(Crl) 257
High Court of Judicature at Madras
K.N.BASHA, and T. SUDANTHIRAM & S. NAGAMUTHU
The State represented by The Home Secretary, The Government of Tamil Nadu & Others
Versus
Yesu @ Velaiyan & Others
W.A.(MD) No.206 of 2010 & M.P.(MD) No.2 of 2010 & W.P.(MD) No.13781 of 2010 & M.P.(MD) No.1 of 2010
Decided On : 14-09-2011

Advocates Appeared:
For the Appellants:I. Subramaniam, Public Prosecutor assisted by D. Gandhi Raj, Special Government Pleader, M.S. Velusamy, S. Durairaj Advocates. For the Respondents:V. Kathirvel, Senior Counsel for K. Prabhu, Advocate. Amicus Curiae:P.N. Prakash, Advocate.

Ratios
a. The period spent on parole by a prisoner has to be counted as sentence period undergone unless the rules, instructions or permission regulating the parole prescribes otherwise.
b. The period of emergency leave or ordinary leave granted to the prisoners by the prison authorities shall not be counted as the sentence of imprisonment undergone by the prisoner.
c. Outside the scope of the statutory rules framed by the State regarding the leave, parole or suspension of sentence of the prisoners, the authorities could not grant any leave, parole or suspension of sentence to the prisoners.
d. Parole and suspension of sentence are of different connotations operating in different manners.
e. Parole is a temporary release of a prisoner from prison which is an administrative action.

Headnote:(A)Code of Criminal Procedure, 1973(2 of 1974)-Sec.432-Constitution of India-Art.161-Sentence-Execution-Computation-Suspension-Parole-Leave-State-Authority-While the respondent was undergoing a sentence of imprisonment, on his application, he was released on parole-When the prison officials refused to count the said parole period in the period of sentence undergone by him, the respondent challenged it-While the single judge concluded that the period of parole had to be treated as the period of sentence undergone, State preferred appeal-When the division bench entertained doubt on the correctness of the judgments relied on by the respondent, the matter was referred to a full bench-While the State contended that in the absence of specific rule to treat the period on parole as the period of sentence undergone, the prisoner could not call the prison administration to treat the said periods as sentence actually undergone which plea was resisted by the respondent-Held, period of leave granted to the prisoner differs from that of parole-Period of suspension of sentence shall not be counted as the period of sentence undergone-In the absence of enabling statutory provision or regulation enabling the officials to grant parole, the prison authorities were not empowered to release the prisoner on parole-Period of parole to a prisoner has to be counted as period of sentence undergone-As there was no specific rule available in the State of Tamil Nadu for the enlargement of a prisoner on parole, the State was not competent to release the prisoners on parole-Reference was answered accordingly.
       (B)Code of Criminal Procedure, 1973(2 of 1974)-Sec.432-Sentence-Execution-Computation-Parole-The period spent on parole by a prisoner has to be counted as sentence period undergone unless the rules, instructions or permission regulating the parole prescribes otherwise.
       A close reading of the above judgment of the Constitution Bench of the Hon’ble Supreme Court would make it undoubtedly clear that any release on parole does not interrupt the period of detention and therefore the said period spent on parole has to be counted as sentence period unless the rules, instructions or permission granted on parole prescribes otherwise. Para 10
       (C)Code of Criminal Procedure, 1973(2 of 1974)-Sec.432-Constitution of India-Art.161-Sentence-Execution-Computation-Suspension-Leave-The period of emergency leave or ordinary leave granted to the prisoners by the prison authorities shall not be counted as the sentence of imprisonment undergone by the prisoner.
       Therefore, as held by the Hon’ble Supreme Court in Maru Ram’s Case and in C.A.Pious’s Case, in view of the express provision in the form of Rule 36 of the Tamil Nadu Suspension of Sentence Rules, there can be no manner of doubt that any period spent on either emergency leave or ordinary leave, shall not be counted as sentence period. It is essentially because, on such leave being granted, the period of sentence undergone by the prisoner is disrupted. Para 23
       (D)Code of Criminal Procedure, 1973(2 of 1974)-Sec.432-Constitution of India-Art.161-Sentence-Execution-Suspension-Parole-Leave-State-Authority-Outside the scope of the statutory rules framed by the State regarding the leave, parole or suspension of sentence of the prisoners, the authorities could not grant any leave, parole or suspension of sentence to the prisoners.
       In view of the said settled position of law, so far as the State of Tamil Nadu is concerned, since there is a statutory Rule in the form of the Tamil Nadu Suspension of Sentence Rules, occupying the field of suspension of sentence by grant of either emergency leave or ordinary leave, the Executive power of the State under Article 162 of the Constitution cannot be exercised by the State in derogation of the said Rules. To put it otherwise, outside the scope of the said Rules, the Government or any other Authority of the government shall not grant any suspension of sentence to a prisoner. Para 27
       (E)Code of Criminal Procedure, 1973(2 of 1974)-Sec.432- Sentence-Execution-Computation-Suspension-Parole-Leave-Parole and suspension of sentence are of different connotations operating in different manners-Parole is a temporary release of a prisoner from prison which is an administrative action.
       Thus it is crystal clear that what is granted in exercise of power under Section 432 of the Code of Criminal Procedure is suspension of sentence and there is no provision in the Code of Criminal Procedure enabling any authority to grant parole. Parole is undoubtedly a temporary release which is an administrative action. Thus, parole and suspension of sentence are of different connotations operating in different manners. The former does not disrupt the sentence undergone by the prisoner, whereas, the later disrupt the sentence undergone for a temporary period. It is because of the reason that the sentence is not disrupted by the release on parole, the Hon’ble Supreme Court has been consistently holding that parole period shall be counted as sentence period. Para 30

Judgment :-

S. NAGAMUTHU,J.

1. "Human dignity, emphasised in the preamble, compassion, implicit in the prescription of fair procedure in Article 21, and the irrationality of arbitrary incarceratory brutality violative of Article 14 invest the demand for a reformatory component in jail regimen with the status of a constitutional requirement." This is what Hon'ble Mr.Justice V.R.Krishna Iyer, speaking for the majority in Maru Ram Vs. Union of India (1981 1 SCC 107), put it very aptly about the objective of sentencing.

2. In the jail context, "Parole" is a common language often spoken to in the jails and off the jails by the inmates and their kith and kin. What do we really mean by the term

"parole" in the legal sense of it and whether the same amounts to suspension of sentence is the doubt which is the basis for the Division Bench for referring the following question to this Full Bench to answer:

"Whether the period spent on parole by a convict shall be counted as sentence period or not ?"

3. The respondent in W.A.(MD).No.206 of 2010 is a life convict undergoing sentence in the Central Prison, Palayamkottai. According to him, he had spent around 480 days on parole. But the appellants herein did not count the period spent on parole as the period of sentence spent by him. Therefore, he filed W.P.(MD).No.4231 of 2009 before the Madurai Bench of this Court for a Mandamus to direct the appellants herein to count the parole period as part of the period of sentence spent by him. A learned Single Judge of this Court, while sitting in Madurai Bench by an order dated 07.10.2009, allowed the said writ petition and issued Mandamus as prayed for. As against the same, the State filed the present appeal in W.A.(MD).No.206 of 2010.

4. This appeal came up for hearing before the Madurai Bench on 23.09.2010, before a Division Bench presided over by Hon'ble Mr.Justice P.Jyothimani to which one of us (S.Nagamuthu,J.) was a party. Before the Division Bench, it was argued by the learned Additional Public Prosecutor that as per the Tamil Nadu Prison Manual and as per Rule 36 of the Tamil Nadu Suspension of Sentence Rules, 1982, the period spent on parole shall not be counted as sentence period and thus the order of the learned Single Judge is contrary to the above specific provision. The learned Additional Public Prosecutor placed reliance on the Division Bench Judgments of this Court in Gladys L.Paulsamy Vs. DIG of Prison, Chennai Range, reported in 2009 (1) MLJ (Crl) 531 wherein, the Division Bench held that the parole period shall not be counted as sentence period. Another Division Bench in N.Padmini Vs. DIG of Prison, Chennai Range, reported in 2009 (1) MLJ (Crl) 528, while dealing with a Habeas Corpus Petition under Article 226 of the Constitution of India, took a different view and held that parole period shall be counted as sentence period. However, later on, the same Division Bench, reviewed the said order by order dated 27.01.2009, thereby holding that the period of parole shall not be counted as sentence period. Placing reliance on these two decisions, the learned Additional Public Prosecutor contended that the order of the learned Single Judge under appeal is not therefore sustainable in law.

5. But, the learned counsel appearing for the respondent placed reliance on the judgments of the Hon'ble Supreme Court in Avtar Singh Vs. State of Haryana and another reported in 2002 2 SCC (Crl) 504 and another Constitution Bench Judgment of the Hon'ble Supreme Court in Sunil Fulchand Shah Vs. Union of India reported in (2000) 3 SCC 409 wherein the Hon'ble Supreme Court has held;

"The action for grant of parole, generally speaking is an administrative action and parole is a form of temporary release from custody, which does not suspend the sentence of the period of detention, but provides conditional release from the custody and changes the mode of undergoing the sentence."

6. It was contended before the Division Bench that essentially suspension of sentence

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2011 Supreme(Mad) 3917

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