Partly allowed

S. Sant Singh @ Pitti Singh Ajit Singh Kalyani v. the Secretary, Home Dept. and Ors.

Bombay HC22 Dec 2005WP/345/2005

Case brief

AI extract

What is this about?

A three-judge Bench distinguished Jayant Veerappa Shetty and held that the earlier view that Parole Rules do not apply during pending appeal is wrong. Since parole is not suspension under Cr.P.C. Section 432, competent authorities can grant parole under Prison Rules even while an appeal is pending before the High Court.

What did the court decide?

Authorities have the power to entertain parole applications even if appeal is pending; petition disposed as no further cause of action exists.

S. Sant Singh @ Pitti Singh Ajit Singh… — Constitutional and Fundamental Rights | Bombay HC (2005)

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 THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL WRIT PETITION NO.345 OF 2005

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 S.Sant Singh @ Pilli Singh ]
 Ajit Singh Kalyani, ]
 aged years, residing ]
 permanently at Shikakani ]
 Vashi, Survey No.110, ]
 Romm Tekdi, Hadapsar, Pune ]
 and at present lodged at ]
 Yerwada Central Prison, ]
 Prisoner No.C/12822, ]
 Pune-411006. ]..Petitioner.

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 Versus

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 1. The Secretary, ]
 Home Department, ]
 Govt. of Maharashtra ]
 Mantralaya, Mumbai ]..Respondent No.1
 ]
 2. The Dy.Inspector ]
 General of Prison ]..Respondent No.2
 ]
 3. The Superintendent ]
 of Police, ]
 Yerwada Central Prison ]..Respondent No.3
 ]
 4. The State of ]
 Maharashtra ]
 (at the instance of ]
 Wanwadi Police St. ]
 Pune, vide CR No.166 ]
 of 1999. ]..Respondent No.4

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 ....
 Mrs. Harjeet Kaur with A.S.Anand for Petitioner

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 Mr.S.R.Borulkar Public Prosecutor with
 Mr.Mhaispurkar and Smt.P.H.Kantharia APP for
 Respondents

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CORAM: V.G.PALSHIKAR,Acg.C.J.,
D.B.BHOSALE AND SMT.
 V.K. TAHILRAMANI,JJ.

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 DATED : 22ND DECEMBER, 2005

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ORAL JUDGMENT [PER SMT.V.K.TAHILRAMANI,J]:

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 1. Heard the learned advocate for the petitioner
 and the learned Public Prosecutor for Respondents.
 Rule. Rule made returnable forthwith. Respondents
 waive service, By consent matter is heard finally.

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 2. By his judgment and order dated 30.4.2002 the
 learned Sessions Judge convicted the petitioner
 under Section 302 of IPC. The said judgment and
 order was challenged by the petitioner in an appeal
 which is pending before this Court. During the
 pendency of the appeal, the petitioner preferred
 application for parole on the ground that his wife
 was required to be operated. The said application
 came to be rejected. Against the said order of
 rejection, the petitioner preferred writ petition
 before this Court. The said writ petition came to
 be rejected as the petitioner had remedy of

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 preferring appeal against the order of rejection of
 parole. Thereafter, the petitioner preferred an
 appeal to the State Government which came to be
 rejected. Being aggrieved by the said order of the
 State Government rejecting his application for
 parole leave, the present petition has been
 preferred by the petitioner.

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 3. The application for parole came to be rejected
 on two grounds. The first ground was that there
 are other relatives to take care of his ailing wife
 and hence the presence of the petitioner was not
 required. The second ground was that the
 authorities did not have the jurisdiction to
 entertain grant of parole leave during the pendency
 of his appeal before this Court.

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 4. The matter came up before the Division Bench of
 this Court. At that time, the learned Additional
 Public Prosecutor submitted that in view of the
 decision of this Court in the case of Jayant

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Veerappa Shetty and another Vs. The State of
Maharashtra and others, reported in 1986 Cri. L.J.
1298 = 1986 (1) Bom.C.R.311, the authorities have
 no jurisdiction to entertain an application for
 parole and grant parole leave during the pendency

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 of his appeal before this Court. Hence, the
 petitioner cannot raise any grievance against the
 orders passed by the authorities rejecting his
 application for grant of parole.

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 5. The Division Bench of this Court in the case of
 Jayant Veerappa Shetty (supra), has held that the
 Prisons (Bombay Furlough and Parole) Rules, 1959
 (hereinafter referred to as ‘Prison Rules’) would
 not apply to the grant of parole to a convicted
 person whose appeal is pending before the appellate
 Court and when the appellate Court is in seisin of
 the matter and it is empowered under Section 389 of
 the Code of Criminal Procedure, 1973 to pass
 appropriate orders.

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 6. In the present matter, the Division Bench vide
 its order dated 13.4.2005 was of the opinion that
 "the view taken by the earlier Division Bench in
Jayant Veerappa Shetty’s case that the rules
 regarding furlough and parole leave would not apply
 to the convicted person whose appeal is pending
 before the Appellate Court" appears to have been
 taken without considering the provisions of Section
 432 of Cr.P.C.before arriving at the said
 conclusion.

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 7. In the present case, the Division Bench, was
 not in agreement with the view of the earlier
 Division Bench in the case of Jayant Veerappa
Shetty and by its order dated 13.4.2005, directed
 the Registrar to place the case before The
 Honourable the Chief Justice for reference to a
 Full Bench to resolve the controversy as to whether
 the provisions of the Prisons (Bombay Furlough and
 Parole) Rules, 1959 would stand suspended in cases
 of the convicts who prefer appeal and once the
 appellate authority is in seisin of the matter and
 till the disposal of the appeal.

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 8. The issues which we formulate for decision so
 as to resolve the controversy, are as under:

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 1) Whether the Division Bench in the case
 of Jayant Veerappa Shetty and Another
Vs. The State of Maharashtra and
others, did not refer to or consider
 the provisions of Section 432 of Code
 of Criminal Procedure ?

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 2) Whether the grant of parole amounts to

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 suspension of sentence within the
 meaning of Section 432 of Code of

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 Criminal Procedure ?

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 3) Whether the view taken by this Court
 in Jayant Shetty’s case that the
 Prison Rules would not apply to the
 grant of parole to a convicted person
 whose appeal is pending before the
 Appellate Court when it is empowered
 to pass appropriate orders under

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 Section 389 of Code of Criminal
 Procedure, requires to be

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 reconsidered?

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 4) Whether the competent authorities have
 the power to entertain an application
 for parole when the appeal preferred

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 by the petitioner-convict is pending

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 before this Court ?

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 9. We have heard the learned advocate Ms.Kaur for
 the petitioner as well as the learned Public
 Prosecutor Mr.Borulkar on the above law points.

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 10. On behalf of the Respondent-State, an

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 affidavit has been filed by Shri.P.R.Harchande,
 Desk Officer, Home Department (Jail) Government of
 Maharashtra. Two fold contentions have been raised
 in the said affidavit. The first is that the
 sister, mother and other relatives of the
 petitioner are available to take care of his ailing
 wife and therefore the presence of the petitioner
 is not necessary. The second contention is that
 the petitioner’s appeal challenging the order of
 conviction is pending before this Court and in view
 of the pendency of the appeal, the petitioner
 cannot be released on parole in view of the
 Government Circular bearing reference
 No.PAR/4584/3(712)-PRS-3 dated 17.9.1985 issued by
 the Home Department, Government of Maharashtra,
 Mumbai. The said circular is based on the decision
 of this Court in the case of Jayant Shetty.

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 11. Ms.Kaur the learned advocate for the
 petitioner has submitted that in view of Section
 432 of Code of Criminal Procedure even though the
 appeal against the conviction of the petitioner is
 pending before this Court, still the authorities
 have jurisdiction to entertain the application for
 parole of the petitioner-convict Under Section 432
 of Cr.P.C.

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 12. Mr.Borulkar, the learned Public Prosecutor
 inspite of the stand taken in the affidavit, has
 supported the stand taken by Ms.Kaur and stated
 that though the appeal preferred by the petitioner
 against his conviction is pending before this
 Court, the authorities still have jurisdiction to
 entertain the application for parole. He submitted
 that in view of the provisions of Section 432 of
 the Code of Criminal Procedure, the State
 Government can grant parole to a convict prisoner
 even though his appeal is pending before this
 Court. However, he did not substantiate this
 submission.

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 13. Before we advert to the controversy before us,
 we may indicate in short, the scheme in respect of
 parole leave granted to convicted persons. In
 exercise of powers conferred by clauses (5) and
 (28) of Section 59 of the Prisons Act, 1894 (IX of
 1894), in its application to the State of then
 Bombay, the Government of then Bombay framed the
 Prison Rules. Rules 18 to 28 which deal with
 parole are as under:

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 . 18. Authorities competent to sanction
parole.-- The authority competent to
 sanction release of a convicted
 prisoner on parole (hereafter referred
 to as "the Competent Authority") shall
 be :--
 . (i) the State Government in the
 following cases:-
 . (a) prisoners convicted by Courts
 situated outside the State of
 Maharashtra,

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 . (aa) prisoners convicted by courts
 situated within the State of
 Maharashtra, but confined in prisons
 situated outside the State,
 . (b) prisoners convicted by political
 offences,

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 . (c) any other case or class of cases
 wherein the State Government has
 directed that the case or specified
 class of cases wherein the State
 Government has directed that the case
 or specified class of cases be
 referred to it for orders,

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 . (ii) The Commissioner of the Division,
 in all other cases in a Division, in
 which the convicted prisoner is
 confined, or when the Divisional
 Commissioner is out of headquarters,
 the Additional Divisional
 Commissioner:

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 . Provided that if an application for
 release on parole or for an extension
 of the period of parole is refused by
 the Divisional Commissioner or the
 Additional Divisional Commissioner, as
 the case may be, an appeal shall lie
 to the State Government, whose
 decision thereon shall be final.

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 . (2) Notwithstanding anything contained
 in sub-rule (1), the Superintendent of
 Prison shall also be the Competent
 Authority to release a convicted

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 prisoner on parole for a period not
 exceeding fifteen days, in case of
 death of his close relation i.e.
 father, mother, brother, sister,
 spouse or child of the prisoner.

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 . 19. When a prisoner may be released
on parole -- A prisoner may be
 released on parole for such period not
 exceeding thirty days at a time as
 the Competent Authority referred to in
 rule 18, in its discretion may order,
 in cases of serious illness, or death
 of nearest relative such as mother,
 father, sister, brother, children,
 spouse of the prisoner, or in case of
 natural calamity such as house
 collapse, floods, fire. No such
 parole or extension of parole shall be
 granted without obtaining a police
 report in all cases except in the case
 of death of his nearest relatives
 mentioned above.

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 . 20. Parole not to be counted as
remission of sentence.-- The period
 spent on parole shall not count as
 remission of the sentence.

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 . 21. Application for grant of parole--
 A prisoner may be granted parole
 either on his own application or on an
 application made by his relatives or
 friends, or legal adviser.

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 . 22. Applications for parole how to be
dealt with.--(1) Any prisoner desiring
 to be released on parole shall
 ordinarily submit his application (in
 triplicate) in Form D appended to
 these rules to the Superintendent of
 Prison who shall endorse his remarks
 thereon and submit one copy direct to
 the Competent Authority along with the
 nominal roll of the prisoner and the
 other to the District Superintendent
 of Police of the district in which the
 prisoner proposes to spend his parole
 period and to the Commissioner of
 Police if such place is in Greater
 Bombay.

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 . Note.-- Prisoners who apply for parole
 on false grounds or who, abuse the
 concession or commit breach of any of
 the conditions of parole are liable to
 be punished under Section 51-B of the
 Prisons Act, 1894, as applicable to
 the State of Bombay.

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 . (2) The District Superintendent of
 Police concerned or the Commissioner
 of Police, Bombay, as the case may be,
 shall immediately make enquiries to
 ascertain whether the ground or
 grounds on which parole is applied for
 is or are genuine and submit
 immediately his report to the
 Competent Authority mentioning inter
 alia whether it recommends the grant
 of parole and also whether there is a
 likelihood of breach of peace if the
 prisoner is released on parole.

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 . 23. Enquiries may be made on receipt
of application.-- On receipt of an
 application for parole, the Competent
 Authority may make such enquiries as
 it considers necessary, and pass such
 orders as it considers fit. If the
 Competent Authority considers that
 there is no objection to release the
 prisoner concerned on parole it shall
 make an order for his release on
 parole.

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 . 24. Conditions subject to which
prisoners may be granted parole.-- The
 Competent Authority may grant parole
 to a prisoner subject to his executing
 a surety bond and a personal bond in
 Forms A and B respectively to observe
 all or any of the conditions mentioned
 therein and also subject to such other
 conditions, if any, as may be
 specified by the Competent Authority:

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 . Provided that when prisoners convicted
 of serious offences are released on
 parole, a condition shall be included
 in the parole order directing or
 requiring the prisoner to report at

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 the Police Station nearest to the
 place where he intends to spend his
 parole initially on his reaching such
 place and thereafter once or twice a
 week at such intervals as may be
 considered expedient:

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 . Provided further that when a prisoner
 applies for parole for the purpose of
 appearing at an examination he will
 not be eligible to be released on
 parole unless the Inspector - General
 of Prisons has passed an order
 permitting him to appear at such
 examination:

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 . 25. Extension of the period of
parole.--The Competent Authority may,
 on the application made by the
 prisoner or by his relatives or
 friends or legal adviser, one week in
 advance, before the expiry of the
 period of parole granted by an order
 in writing, extend the period of
 parole for such further period or
 periods as may be specified in such
 order, on the same grounds, and on the
 same conditions on which the prisoner
 was originally granted parole, or on
 such other conditions as the Competent
 Authority may determine:

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 . Provided that the total period of
 parole so extended shall not exceed
 ninety days."

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 . 26. Parole order ineffective on
prisoner’s surrender,--- As soon as a
 prisoner released on parole surrenders
 to the Prison Authority, his original
 order of release will be inoperative.
 Where, therefore, a prisoner who is
 released on parole has applied for the
 extension of the period of parole and
 before his application has been
 sanctioned surrenders himself to the
 Prison authority, he shall not be
 released after such surrender without
 obtaining a fresh release order passed
 by the Competent Authority.

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 . 27. Intimation of release and of
non-surrender of a prisoner.-- (1)
 Whenever any prisoner is released on
 parole, an intimation of his release
 on parole shall forthwith be given by
 the Superintendent of Prison to the
 authority which granted him parole and
 copies thereof shall also be sent--

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 . (i) to the Inspector-General of
 Prisons,

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 . (ii) to the District Magistrate and
 the District Superintendent of Police
 of the District in which the prisoner
 intends to spend his parole and if the
 prisoner intends to spend his parole
 in Greater Bombay, to the Commissioner
 of Police.

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 . (2) Where a prisoner does not
 surrender himself to the prison
 authorities after the expiry of the
 period of parole, the Competent
 Authority may, if it is satisfied that
 any of the conditions on which the
 parole was granted has not been
 fulfilled cancel its order granting
 such parole. An intimation regarding
 such cancellation shall forthwith be
 given by the Superintendent of Prison
 to the officers specified in clause
 (ii) of sub-rule (1). Upon such
 intimation, the police authorities may
 arrest the prisoner, if at large, and
 remand him to undergo the unexpired
 portion of his sentence.

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 . 28. Application of certain rules to
parole cases,-- The provisions of
 rules 8(5), 10,11 and 12 shall mutatis
 mutandis apply in the case of release
 of prisoners on parole.

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 14. It would also be useful at this stage to
 reproduce the provisions of Sections 389(1) and
 432 of the Code of Criminal Procedure.

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 . "389 Suspension of sentence pending
the appeal; release of appellant on
bail,--

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 . (1) Pending any appeal by a convicted
 person, the Appellate Court may, for
 reasons to be recorded by it in
 writing, order that the execution of
 the sentence or order appealed against
 be suspended and, also, if he is in
 confinement, that he be released on
 bail, or on his own bond.

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 . 432. Power to suspend or remit
sentences,--

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 . (1) 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.

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 . (2) Whenever an application is made to
 the appropriate Government for the
 suspension or remission of a sentence,
 the appropriate Government may require
 the presiding Judge of the Court
 before or by which the conviction was,
 had confirmed, to state his opinion as
 to whether the application should be
 granted or refused, together with his
 reasons for such opinion and also to
 forward with the statement of such
 opinion a certified copy of the record
 of the trial or of such record thereof
 as exists.

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 . (3) If any condition on which a
 sentence has been suspended or
 remitted is, in the opinion of the
 appropriate Government, not fulfilled,
 the appropriate Government may cancel
 the suspension or remission, and
 thereupon the person in whose favour

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 the sentence has been suspended or
 remitted may, if at large, be arrested
 by any police officer, without warrant
 and remanded to undergo the unexpired
 portion of the sentence.

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 . (4) The condition on which a sentence
 is suspended or remitted under this
 section may be one to be fulfilled by
 the person in whose favour the
 sentence is suspended or remitted, or
 one independent of his will.

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 . (5) The appropriate Government may, by
 general rules or special orders, give
 directions as to the suspension of
 sentences and the conditions on which
 petitions should be presented and
 dealt with:

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 . Provided that in the case of any
 sentence (other than a sentence of
 fine) passed on male person above the
 age of eighteen years, no such
 petition by the person sentenced or by
 any other person on his behalf shall
 be entertained, unless the person
 sentenced is in jail, and,--

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 . (a) where such petition is made by the
 person sentenced, it is presented
 through the officer in charge of the
 jail; or

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 . (b) where such petition is made by any
 other person, it contains a
 declaration that the person sentenced
 is in jail.

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 . (6) The provisions of the above
 sub-sections shall also apply to any
 order passed by a Criminal Court under
 any section of this Code or of any
 other law which restricts the liberty
 of any person or imposes any liability
 upon him or his property.

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 . (7) In this section and in section
 433, the expression ‘‘appropriate
 Government" means,--

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 . (a) In cases where the sentence is for
 an offence against, or the order
 referred to in sub-section (6) is
 passed under, any law relating to a
 matter to which the executive power of
 the Union extends, the Central
 Government;

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 . (b) In other cases the Government of
 the State within which the offender is
 sentenced or the said order is
 passed."

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 15. Thus Rules regarding parole are set out from
 Rules 18 to 28. Rule 18 prescribes the competent
 authority for grant of parole over which there is
 no dispute before us. Rules 19 and 25 have been
 amended in 1989 by the Prisons (Bombay Furlough
 and Parole) (Amendment) Rules, 1989 by
 Notification in the Official gazette dated
 21.11.1989 issued by the Home Department,
 Mantralaya, Mumbai. Earlier Rules 19 and 25 read
 as under:

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 . 19. When a prisoner may be released
on parole -- A prisoner may be
 released on parole for such period as
 the Competent Authority referred to in
 rule 18 in its discretion may order,
 in cases of serious illness, or death
 of any member of the prisoner’s family
 or of his nearest relatives or for any
 other sufficient cause.

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 . 25. Extension of the period of
parole.-- The Competent Authority may,
 on the application of the prisoner or
 otherwise, by an order in writing,

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 extend the period of parole for such
 further period or periods as may be
 specified in such order on the same
 conditions on which the prisoner was
 originally granted parole or on such
 other condition as the Competent
 Authority may determine."

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 The amended Rule 19 has added three very important
 provisions i.e.

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 (i) it sets out the specific cases
 in which parole can be granted;

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 (ii) it provides for police report;
 and

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 (iii) it states the period for which
 parole can be granted.

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 Rule 19 states that parole cannot be granted for
 more than thirty days at a time. Rule 25 provides
 the maximum period for which parole can be
 extended. These provisions were not there in the
 earlier Rules.

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 16. In the Indian Judicial System, normally a
 person would be a prisoner in the following cases:

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 (a) If he is a detenu;

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 (b) If he is a pre-trial prisoner;

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 (c) after conviction;

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 The last category can be further

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 divided into three parts:

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(i) Prisoners whose appeals are pending;

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(ii) Prisoners whose bail applications have been rejected by the High Court;

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 (iii)Prisoners whose convictions have been
 confirmed by the High Court;

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 Rule 18 of the Prison Rules makes it very clear
 that the competent authority can grant parole only
 to a convict.

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 17. Rules 1 to 17 of the Prison Rules deal with

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 furlough. The question whether Furlough can be
 granted when the appeal of a prisoner is pending
 came up for consideration before the Division

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 Bench of this Court in the case of Sharad Bhiku

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Marchande Vs. State of Maharashtra reported in

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1991 Cri.L.J. 2109. After considering the
 decision in the case of Jayant Shetty (supra) it
 was held in the case of Sharad Marchande that an
 application for furlough cannot be rejected on the
 ground that a prisoners appeal is pending before
 the Court. We are in respectful agreement with
 the view taken by the Division Bench in the case
 of Sharad Marchande (supra) that as furlough is
 granted as of right, the Government cannot refuse

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 to grant furlough to a convict whose appeal is
 pending and this position in law has been well
 recognised by this Court. Thus, we have to now
 only consider whether Parole can be granted to a
 prisoner during the period that his appeal is
 pending.

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 18. ‘Furlough’ and ‘parole’ are two distinct
 terms now being used in the Jail Manuals or laws
 relating to temporary release of prisoners. These
 two terms have acquired different meanings in the
 statute with varied results. Dictionary meanings,
 therefore, are not quite helpful.

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 19. ‘Parole’ is defined in Black’s Law Dictionary
 as "a conditional release of a prisoner, generally
 under supervision of a parole officer, who has
 served part of the term for which he was sentenced
 to prison". Parole relates to executive action.
 Historically ‘parole’ is a concept known to
 military law and denotes release of a prisoner of
 war on promise to return. Parole has become an
 integral part of the English and American systems
 of criminal justice intertwined with the evolution
 of changing attitudes of the society towards crime
 and criminals. As a consequence of the

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 introduction of parole into their penal system,
 all fixed-term sentences of imprisonment of above
 18 months are subject to release on licence, that
 is, parole is granted after a third of the period
 of sentence has been served. In those countries,
 parole is taken as an act of grace and not as a
 matter of right and the convict prisoner may be
 released on condition that he abides by the
 promise. It is a provisional release from
 confinement but is deemed to be a part of the
 imprisonment. Release on parole is a wing of the
 reformative process and is expected to provide
 opportunity to the prisoner to transform himself
 into a useful citizen. Parole is thus a grant of
 partial liberty or lessening of restrictions on a
 convict prisoner, but release on parole does not
 change the status of the prisoner.

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 20. However, the concept of parole under the
 English law, the American law and the Indian law
 is quite different. Under the English Law, parole
 is granted to a convict who has undergone major
 part of his sentence. It is a reformative process
 on account of the changing attitude towards crime
 and criminals. Parole under those systems is a
 provisional release from jail but it is deemed to

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 be part of the imprisonment. A convict is
 supposed to maintain good behaviour during this
 period and not abuse the liberty granted to him in
 any manner, otherwise he would be called back to
 serve out the remaining part of his imprisonment.
 However, under the Indian system a convict can be
 released on Parole only in case of the contingen-
 cies mentioned in Rule 19. It is a temporary
 release granted on account of contingency and
 after the period of parole is over the convict has
 to report back to prison to undergo the remaining
 part of his sentence. Thus, though the concept of
 Parole differs under the Indian system and other
 systems, one similarity is that Parole does not
 amount to suspension of sentence and the person is
 deemed to be undergoing imprisonment during the
 period that he is on parole.

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 21. Bail and parole have different connotation in
 law. Bail is well understood in Criminal
 Jurisprudence and Chapter XXXIII of Cr.P.C.
 contains elaborate provisions relating to grant of
 bail. Bail is granted to a person who has been
 arrested in a non-bailable offence or has been
 convicted of an offence after the trial. Bail is
 granted by the officer in charge of a police

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 station or by the court when a person is arrested.
 The Court grants bail when a person apprehends
 arrest in a case of a non-bailable offence. When
 a person is convicted of an offence he can be
 released on bail by the appellate court till his
 appeal is decided. If he is acquitted his bail
 bonds are discharged and if his appeal is
 dismissed he is taken into custody. Bail can be
 granted subject to conditions. After granting of
 bail, if the accused is released from custody,
 still the Court would retain constructive control
 over him through the sureties. In case, the
 accused is released on his own bond such
 constructive control would still be exercised
 through the conditions of the bond secured from
 him. Parole, however, has a different connotation
 from bail even though the substantial legal effect
 of both bail and parole may be the release of a
 person from detention or custody. "Parole" is a
 form of "temporary release" of a convict from
 custody which provides conditional release from
 custody and changes the mode of undergoing
 sentence.

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 22. It is seen that ‘bail’ and ‘parole’ operate
 in distinct fields although, the ultimate end is

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¶138

 the release of the prisoner on certain terms and
 conditions. There is clear distinction between
 ‘parole’ and ‘bail’. ‘Parole’ has nothing to do
 with the actual merits of the matter i.e. the
 evidence which has been led against the convicted
 prisoner but ‘parole’ is granted in cases of
 emergency like death, illness of near relative or
 in cases of natural calamity such as house
 collapse, fire or flood. It is pertinent to note
 that in case of death of near relative, the
 Superintendent of Prison shall also be competent
 to release the convict on parole for a period not
 exceeding 15 days. Parole is resorted to in cases
 of contingency. Looking to this fact it would not
 be expedient for the convict to approach the
 Courts and pray for temporary release especially
 in cases of death. The Prison Rules take care of
 such emergencies.

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 23. Thus, Bail and Parole operate in different
 spheres and in different situations. In India,
 there are no statutory provisions dealing with the
 question of grant of parole. The Code of Criminal
 Procedure does not contain any provision for grant
 of parole. By an administrative instruction,
 however, rules have been framed in various States

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 regulating the grant of parole. Thus, the action
 of grant of parole is generally speaking an
 administrative action.

¶142

 24. Undoubtedly, Section 389 empowers the Court
 to suspend the sentence and even the conviction
 but if there is no such suspension, the Competent
 Authority or the Government’s powers under Section
 432 Cr.P.C. are not curtailed in any manner nor
 there is an embargo on its powers merely because
 the appeal against the conviction is pending. It
 is another story when the sentence is suspended
 and the convict is ordered to be released on bail.
 Certainly such an order could prevail over the
 powers of the Government but in the absence of
 such an order, the Government’s powers under
 Section 432 of Cr.P.C. are not curtailed.

¶143

 25. Section 432 of the Code of Criminal Procedure
 falls within Chapter XXXII, which contains
 provisions regarding "execution, suspension,
 remission and commutation of sentences".
 Sub-section (1) of Section 432 empowers the
 appropriate Government to "suspend" the execution
 of the sentence or "to remit" the punishment to
 which he has been sentenced. Thus Section 432

¶144

 -25-

¶145

 confers powers on the executive authority to
 suspend or remit the punishment conditionally or
 unconditionally. Suspension means a stay of the
 execution of the sentence. Remission means
 reducing the amount of sentence without changing
 its character e.g. two years rigorous
 imprisonment to one year rigorous imprisonment.
 Commutation means change of the punishment to a
 less severe one e.g. Death sentence to life
 imprisonment. The Supreme Court in a decision by
 the Constitution Bench in the case of Sunil
Fulchand Shah Vs. Union of India, reported in
2000 S.C.C. (Cri.) 659, has categorically
 observed that parole does not amount to suspension
 of sentence. From this it becomes clear that
 parole cannot be covered by Section 432 of Cr.P.C.

¶146

 26. The provisions of law clearly disclose that
 once a person is convicted and sentence is imposed
 by the Court, and such person is sent to jail as a
 prisoner the execution of the sentence imposed
 upon him is to be done by the appropriate
 Government in accordance with the rules framed in
 that regard. Once a person is in prison he would
 be governed by the Prisons Act, and the Rules
 framed thereunder. The Prison Rules clearly

¶147

 -26-

¶148

 provide for grant of parole. It is for the
 Competent Authority or the Government to decide as
 to whether any Parole for any particular period is
 to be granted to the convicts undergoing
 imprisonment period and on the conditions as may
 be fixed. It is, therefore, clear that merely
 because a convict prefers an appeal before the
 Appellate Court, that would not divest the
 Government of its powers under the Prison Act to
 deal with the management of the convict by
 following the rules framed under the said Act.

¶149

 27. From this, it is clear that the powers of the
 State to grant Parole are not fettered even if the
 appeal of the convict is pending before the Court.
 Thus, the Competent Authority or the Government
 would have the legal competence to entertain an
 application for parole by following the procedure
 set out under the Prison Rules to meet the
 contingencies stated therein. The exercise of
 such power would not be in any way be in conflict
 with the powers exercised under Section 389 and/or
 Section 432 Cr.P.C. It is also evident that the
 amendments carried out in this scheme of Rules 19
 and 25 in the year 1989 have provided for adequate
 safe guards so as to ensure that the benefit of

¶150

 -27-

¶151

 parole leave is not misused or abused so as to
 defeat or nullify the Court’s order passed under
 Section 389 Cr.P.C. as was noticed in Jayant
 Shetty’s case (supra).

¶152

 28. The judgment in the case of Jayant Shetty
 (supra) appears to have been influenced by the
 peculiar facts of that case and the legal position
 prevailing at that time. In the said case,
 ‘Parole’ was granted to dreaded criminals, who
 were gang leaders. The bail granted to them was
 cancelled by the High Court. Parole was granted
 even before seeking the views of the police in
 respect of grant of parole. The grant of parole
 was opposed by the Commissioner of Police and the
 Commissioner of Police stated that parole which
 was granted, should be cancelled. Inspite of
 this, extension of parole of one month was
 granted. In the said case, parole and extension
 was granted on entirely frivolous grounds i.e. on
 recommendations of MLAs whose recommendations did
 not bear out the true state of facts. At the time
 when the decision in the case of Jayant Shetty,
 was rendered, it is seen that there were no checks
 in respect of grant of parole by the Competent
 Authority. Earlier Rules did not provide for the

¶153

 -28-

¶154

 maximum period for which parole could be granted.
 The earlier Rule 19 was rather vague in the sense
 that it provided that parole could be granted "for
 any other sufficient cause". Thus, it was left to
 the Competent Authority’s discretion to grant
 parole in any case and thus, there was danger of
 misusing the said power. The amended Rule 19
 clearly provides that parole can be granted only
 in case of death or serious illness of near
 relatives or in case of natural calamity. The
 near relatives have been specifically set out in
 the Rules. The most important check is that the
 amended Rules provide that except in case of
 death, parole cannot be granted without obtaining
 a police report. The provision of the obtaining a
 police report was not there in the earlier Rules.
 The provision of obtaining police report would
 ensure that police would point out the antecedents
 of the person, whether any bail if granted to the
 person has been cancelled. The police would also
 point out any other reason in view of which it
 would not be expedient to grant parole. Thus,
 amended rule 19 provides for three checks viz.;-
 (1) it sets out the specific cases in which the
 parole can be granted; (2) it provides for a
 specific period for which parole can be granted

¶155

 -29-

¶156

 and (3) it specifically states that no parole
 shall be granted except in cases of death without
 obtaining a police report. These three safeguards
 to our mind, are sufficient. These safeguards
 were not in existence when the decision in the
 case of Jayant Shetty was rendered and hence, it
 appears that decision in the case of Jayant
Shetty, was rendered in view of the prevailing
 legal position at that time and the peculiar facts
 of that case.

¶157

 29. One other fact which appears to have weighed
 while rendering the decision in Jayant Shetty’s
 case is the decision of the Apex Court in the case
 of K.M.Nanavati Vs. State of Bombay, reported in

¶158

A.I.R. 1961 SC 112. A specific reference has
 been made to the decision in the case of K.M.
 Nanavati. In the said case, the provisions of
 Section 432 of Cr.P.C. i.e. old Section 401 and
 present Section 389 of Cr.P.C. i.e. old Section
 426 of Cr.P.C. fell for consideration. After
 considering the said decision, the Division Bench
 in the case of Jayant Shetty reproduced the
 following para from K.N.Nanavati’s case:-

¶159

 -30-

¶160

 . " Section 426, therefore, deals
 specifically with a situation in
 which an appeal is pending and the
 Appellate Court has seisin of the
 case and is thus, entitled to pass
 such orders as it thinks fit and
 proper to suspend a sentence. It
 will thus be seen that whereas
 Chapter XXIX in which Section 401
 occurs, deals with a situation in
 which pendency of an appeal is not
 envisaged, Section 426 deals with a
 situation in which pendency of an
 appeal is postulated. In other
 words, Chapter XXIX deals with
 persons sentenced to punishment for
 an offence simplicitor in general
 term whereas Section 426 deals with a
 special case and therefore, must be
 out of the operation of Section 401.
 But it has been vehemently argued by
 the learned Advocate General that the
 words "at any time" indicate that the
 power conferred by Section 401 may be
 exercised without any limitation of
 time. In the context of Section 401
 "any time" can only mean after
 conviction, because there cannot be
 any sentence before conviction. The
 question then is: "Does it cover the
 entire period after the order of
 conviction and sentence even when an
 appeal is pending in the Appellate
 Court and Section 389 can be availed
 of by the appellant?".

¶161

 . . It will be seen that Section 426
 is as unfettered by other provisions
 of the Code as Section 401 with this
 difference that powers under Section
 426 can only be exercised by an
 appellate court pending an appeal.
 When both the provisions are thus
 unfettered, they have to be
 harmonised so that there may be no
 conflict between them. They can be
 harmonised without any difficulty, if
 Section 426 is held to deal with a
 special case restricted to the period
 while the appeal is pending before an

¶162

 -31-

¶163

 appellate Court while Section 401
 deals with the remainder of the
 period after conviction. We see no
 difficulty in adopting this
 interpretation nor is there any
 diminution of powers conferred on the
 executive by Section 401 by this
 interpretation. The words "at any
time" emphasise that the power under
Section 401 can be exercised without
limit of time but they do not
necessarily lead to the inference
that this power can also be exercised
while the court is seized of the same
matter under Section 389".

¶164

 [Emphasis supplied]

¶165

 . The Division Bench in Jayant Shetty’s case in
 fact relied on the last sentence underlined above
 to come to the conclusion that powers under
 Section 432 Cr.P.C. cannot be exercised by the
 Government when the Court is seized of the matter
 under Section 389 of Cr.P.C. It is to be noted
 that the Supreme Court in the case of K.M.Nanavati

¶166

(supra), was not considering the power of
 Competent Authority or the Government to grant
 parole, but it was considering the powers of the
 Governor to suspend/remit the sentence. Thus, the
 decision in the case of K.M.Nanavati (supra),
 would not be applicable to any case of grant of
 parole by the Government irrespective of the fact
 whether the appeal is pending or not. As stated
 earlier, parole does not amount to suspension of

¶167

 -32-

¶168

 sentence. It has been so held by the Constitution
 Bench of the Supreme Court in the case of Sunil

¶169

Fulchand Shah (supra). Thus, the Court in the
 case of Jayant Shetty, has erred in placing
 reliance on the decision of the K.M.Nanavati,
 while considering whether the Government can grant
 parole in a case where the appeal is pending. In
 our view, this reasoning is totally incorrect
 because Section 432 Cr.P.C. deals with the powers
 of the Government to remit or suspend the sentence
 of a convict. Parole does not amount to
 suspension or remission and hence, it would not
 fall under Section 432 of Cr.P.C.

¶170

 30. In respect of parole the Constitution Bench
 of the Supreme Court in the case of Sunil Fulchand

¶171

Shah Vs. Union of India, reported in 2000 S.C.C.
 (Cri.) 659 has categorically observed that
 "parole" is a form of "temporary release" from
 custody, which does not suspend the sentence or
 period of detention. From this it is clear that
 parole does not amount to suspension of sentence.
 Parole clearly does not fall under remission of
 sentence. Remission means reducing the period of
 sentence without changing its character e.g. two
 years rigorous imprisonment to one year rigorous

¶172

 -33-

¶173

 imprisonment. Thus, as parole does not fall under
 either of the two categories i.e. suspension or
 remission, it would not be covered by Section 432
 of Cr.P.C.

¶174

 31. Section 432 Cr.P.C. deals with Government’s
 powers to remit or suspend sentence. As parole
 does not amount to remission or suspension of
 sentence parole would not be covered under Section
 432 of Cr.P.C. From this, it follows that the
 Government has no powers to grant parole under
 Section 432 of Cr.P.C. However, Government or
 Competent Authority can grant parole to convicts
 under the Rules framed under the Prisons Act. The
 power of the executive to grant parole under the
 Prisons Act and Rules would not create any
 conflict with the power of the Court to grant bail
 or suspend the sentence or conviction under
 Section 389 of Cr.P.C. In any case there is
 always the remedy of Judicial review.

¶175

 32. In the premises and with great respect, we do
 not find ourselves in agreement with the view
 recorded by the Division Bench in Jayant Shetty’s
 case (supra).

¶176

 -34-

¶177

 33. As far as Question No.1 is concerned, i.e.

¶178

 the observation that the decision was taken by the
 Division Bench in Jayant Shetty’s case without
 considering the provisions of Section 432 of
 Cr.P.C. as recorded in the reference order dated
 13.04.2005 made by the subsequent Division Bench
 in the instant petition are in our humble view
 incorrect.

¶179

 34. In conclusion, the issues framed by us are
 answered as under:

¶180

 1. The decision in Jayant Shetty’s case
 had considered the scheme of Section
 432 and 389 Cr.P.C. i.e. old

¶181

 Sections 401 and 426 Cr.P.C.

¶182

 2. The grant of parole does not amount to
 suspension of sentence as contemplated
 by 432 Cr.P.C.

¶183

 3. The view taken in Jayant Shetty’s case

¶184

 is no more a good law.

¶185

 -35-

¶186

 4. The Competent Authority has the power

¶187

 to grant parole under the Prison Rules

¶188

 framed under the Prisons Act.

¶189

 35. In view of the above discussion, we answer
 question No.4 in the affirmative i.e. the
 authorities have the power to entertain and grant
 an application for grant of parole even though the
 appeal of the petitioner is pending before the
 appellate Court.

¶190

 36. In the present case, the appeal of the
 petitioner for grant of parole came to be rejected
 on 30.9.2004. As mentioned earlier, the
 application for parole was made on the ground of
 ill health of his wife. Now more than a year has
 elapsed since then. In this view of the matter if
 at present the health of wife of the petitioner is
 serious, the petitioner would be at liberty to
 make a fresh application for parole annexing
 recent medical certificates in support of his
 claim that she is serious. If any such
 application is preferred by the petitioner, the

¶191

 -36-

¶192

 respondents shall dispose of the same

¶193

 expeditiously.

¶194

 37. In this view of the matter, instead of
 sending the petition back to the Division Bench,
 we dispose of the same as nothing further survives
 in this petition.

¶195

 38. Rule is decided in terms of our findings.
 Petition is disposed of with the above directions.

¶196

 *****

S. Sant Singh @ Pitti Singh Ajit Singh Kalyani v. the Secretary, Home Dept. and Ors.

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S. Sant Singh @ Pitti Singh Ajit Singh Kalyani v. the Secretary, Home Dept. and Ors.

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