Kasubhai Bhalabhai Hathila vs State Of Gujarat on 8 May, 2018

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Gujarat High Court

Kasubhai Bhalabhai Hathila vs State Of Gujarat on 8 May, 2018

Bench: S.G. Shah

       R/SCR.A/3755/2018                                        ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CRIMINAL APPLICATION NO. 3755 of 2018

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                      KASUBHAI BHALABHAI HATHILA
                                Versus
                          STATE OF GUJARAT
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Appearance:
THROUGH JAIL(50) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2,3
MR LR PUJARI, APP (2) for the RESPONDENT(s) No. 1
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 CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
                    Date : 08/05/2018
                      ORAL ORDER

1. Rule. Learned APP waives service of notice of rule for the respondent - State.

2. Heard learned APP for the respondent - State. Perused the record.

3. The petitioner is convicted under Section 460 etc. of the Indian Penal Code for life imprisonment and he is in jail since for more than 18 years. It is contended by the petitioner that since he has preferred application for remission and since such application is pending for adjudication and not decided till date, he be released on long parole leave in connection with the judgment and order dated 05.05.2006 in Sessions Case No.18 of 2006, Criminal Appeal No.1037 of 2006 is dismissed on 27.09.2012 It is further contended that petitioner is aged about 53 years and therefore, he should be Page 1 of 4 R/SCR.A/3755/2018 ORDER released on long parole.

4. It is undisputed fact that such parole application is filed under the provisions of The Prisons (Bombay Furlough and Parole) Rules, 1959. It is also undisputed fact that such rules specifically provides for rules regulating grant of parole. Rules 18 to 28 under above rules are regarding the grant of parole, which provides that which authority/ies is competent to sanction parole, when a prisoner may be released on parole, parole is not to be counted as remission of sentence, conditions subject to which prisoners may be granted parole, extension of period of parole and procedural provision for filing an application for parole. Therefore, parole cannot be granted on any other grounds than the ground for which parole is permissible under such rules. Rule 19 provides for reasons of parole, confirming that there are two types of parole i.e. emergency parole and regular parole. In emergency parole, certain reasons are assigned for which prisoners may be released on parole considering such emergency on the ground of death, illness and marriage of particular relative/s as prescribed under such rules. But, such parole cannot be granted for more than seven days at a time and cannot be extended. Whereas, regular parole may be granted on completion of certain period of imprisonment, wherein Rule 19(2)(C) provides for parole when prisoner is sentenced to life and whose average sentence exceeds 14 years. However, under such rule also, there is no provision for allowing parole as prayed for by the petitioner, but sub Page 2 of 4 R/SCR.A/3755/2018 ORDER clause (iii) of above provision makes it clear that prisoner shall be eligible for maximum of 45 days of parole in a year, which can be extended upto 60 days once in three years, only under exceptional circumstances.

5. In view of above clarity, when there is no provision to release any convict on parole, which is preferred as long parole by the petitioners only because of pendency of their other litigation regarding remission, there is no substance in the petition.

6. However, petitioner is relying upon an order dated 20.11.2012 in Special Criminal Application No.3305 of 2012, wherein at the relevant time, single Judge of this court has granted long parole only because of pendency of substantive petition for remission under Section 433A of Criminal Procedure Code. However, if we peruse such order, it becomes clear that such order is conditional and based upon some understanding that learned advocate appearing in the substantive petition against remission shall extend full co operation and shall not seek adjournment in the matter and in absence of such cooperation, learned APP may request for cancellation of parole.

7. With due respect, there is no reason to rely upon such order, since it not based upon the statutory provision and by all means when substantive petition with reference to remission of the petitioners is pending, it cannot be said that till Page 3 of 4 R/SCR.A/3755/2018 ORDER pendency of such petition, petitioners are entitled to long parole because Rule 19(2)(C)(iii) makes it clear that prisoners are eligible for maximum of 45 days of parole in a year and it can be extended only upto 60 days once in three years, only under exceptional circumstances.

8. Therefore, only because of one order dated 20.11.2012 relied upon by the petitioner, petitioner is not entitled to long parole when it is not permissible under law.

9. Moreover, it cannot be ignored that issue of remission has been recently considered at length by coordinate Bench in Special Criminal Application No.9089 of 2017 wherein by detailed judgment dated 8.3.2018, the court has in paragraph 78 enumerated all details on the issue under reference, but it is made clear that "The imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code means the imprisonment for the rest of the life of the convict. To put it in other words, till the convict breathes his last."

10. In view of above facts and circumstances, I do not see any reason to extend long parole beyond the provisions of the rules and hence, the present petition stands dismissed. Rule is discharged.

(S.G. SHAH, J) VATSAL S. KOTECHA Page 4 of 4

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