Gujarat High Court
Rafik Ishak Tarkbani vs State Of Gujarat on 28 March, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
R/SCR.A/4035/2023 ORDER DATED: 28/03/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4035 of 2023
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RAFIK ISHAK TARKBANI
Versus
STATE OF GUJARAT
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Appearance:
MR. HARDIK Y KOTHARI(6895) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 28/03/2023
ORAL ORDER
1. Heard learned Advocate Mr. Hardik Y. Kothari for the applicant and learned APP Mr. H. K. Patel for the respondent-State.
2. By way of this application, the applicant prays for releasing the applicant on parole leave, more particularly, till final disposal of Special Criminal Application No. 10104 of 2021 which the applicant has preferred for considering his case for remission.
3. Jail remarks would show that the applicant who is convicted for offences punishable under Sections 302, 147 and 148 of the Indian Penal Code and sentenced to life imprisonment, has undergone 16 years, 11 months and 14 days incarceration till now. Jail remarks would further Page 1 of 10 Downloaded on : Sun Sep 17 23:05:07 IST 2023 NEUTRAL CITATION R/SCR.A/4035/2023 ORDER DATED: 28/03/2023 undefined show that lastly the applicant had been released on furlough leave between 31.01.2023 to 13.02.2023 and on parole leave between 15.02.2023 to 01.03.2023.
4. Learned Advocate Mr. Kothari in support of his submission also relied upon decision of learned Co-ordinate Bench of this Court dated 20.11.2012 in Special Criminal Application No. 3305 of 2012 whereby the learned Co-ordinate Bench had released the applicant therein on parole leave till petition preferred by the applicant therein praying for remission was decided by this Court.
5. This application is vehemently opposed by learned APP Mr. Patel who would submit that the applicant had been very recently released on furlough leave as well as on parole leave and whereas, merely because a petition challenging an order rejecting an application for remission is pending before this Court, the same cannot be a ground for release on parole, more particularly, according to the learned APP, learned Co- ordinate Bench not having laid down any law whereby till an application for remission is considered by this Court, a convict is entitled to be released on parole. Learned APP Mr. Patel has also relied upon decision of Hon'ble Apex Court in case of Home Secretary(Prison) and Others Vs. H. Nilofer Nisha reported in (2020) 14 SCC 161 in support of his contentions.
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6. Heard learned Advocates for the respective parties who have not submitted anything else.
7. The question that has arisen for consideration of this Court being that whether a parole leave can be granted for an unlimited period, i.e. contingent on some other condition being fulfilled/completed. 7.1. At the outset, for considering the question, the extant Rules in this regard, i.e. "The Prison (Bombay Furlough and Parole) Rules, 1959 would have to be appreciated. Grant of parole leave to prisoner/convict is regulated under Rules 19 and Rule 20 of the said Rules which are relevant for the present purpose are being quoted herein below for benefit.
Rule 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: Page 3 of 10 Downloaded on : Sun Sep 17 23:05:07 IST 2023
NEUTRAL CITATION R/SCR.A/4035/2023 ORDER DATED: 28/03/2023 undefined Provided that a prisoner shall not be released on parole for one year after expiry of his last parole except in case of death of his nearest relatives mentioned above."
Rule 20: Parole not to be counted as remission of sentence-
"The period spent on parole shall not count as remission of the sentence."
8. Rule 19 inter alia states that a prisoner could be released by the competent authority in his discretion in case of certain exigencies as mentioned in the said section, more particularly, for a period not exceeding 30 days. Rule 20 states that the period spent on parole shall not count as remission of the sentence.
9. At this stage, it would be relevant to refer to decision of the Hon'ble Apex Court in case of State of Gujarat and Another Vs. Narayan @ Narayan Sai reported in 2021 SCC online SC 949 where the Hon'ble Apex Court has inter alia explained the principles governing release of prisoner on parole leave. Paragraph 24 being relevant for the present purpose is quoted herein below for benefit :-
"24.The principles may be formulated in broad, general terms bearing in mind the caveat that the governing rules for parole and furlough have to Page 4 of 10 Downloaded on : Sun Sep 17 23:05:07 IST 2023 NEUTRAL CITATION R/SCR.A/4035/2023 ORDER DATED: 28/03/2023 undefined be applied in each context. The principles are thus:-
(i) Furlough and parole envisage a short-term temporary release from custody;
(ii) While parole is granted for the prisoner to meet a specific exigency, furlough may be granted after a stipulated number of years have been served without any reason;
(iii) The grant of furlough is to break the monotony of imprisonment and to enable the convict to maintain continuity with family life and integration with society;(iv) Although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough;
(v) The grant of furlough must be balanced against the public interest and can be refused to certain categories of prisoners."
10. From the principles formulated by the Hon'ble Apex Court, it would be clearly discernible that parole envisages a short term temporary release from custody and whereas parole is granted for the prisoner to meet with a specific exigency.
10.1. As could be seen from the discussion with regard to Rule 19 of the Rules, while the same enumerates the specific exigencies and whereas the most important aspect as relevant for the present purpose as could be made out from a conjoint reading of the Rules and judgements quoted herein above being that parole leave could be granted for a short term and as specifically mentioned in Rule 19, it could not be granted for a period exceeding 30 days at a time.
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11. Furthermore, the above observations of the Hon'ble Apex Court and also co-relating the same with Section 19 of the rules, it would appear that parole could only be granted to a prisoner to meet a specific exigency. Though in the body of the Section certain exigencies have been mentioned and whereas, while it appears that the same are illustrative in nature, the underlying nature of all the instances given being that the parole leave could be granted to a prisoner in case of a specific exigency or a specific emergency. In the instant case, the applicant is seeking grant of parole leave till final decision of a petition preferred by the applicant, in the considered opinion of this Court, such general parole leave, which is open ended i.e. which does not have a specific date when the parole leave would come to an end could not be granted by this Court, more particularly, in the considered opinion of this Court, such open ended parole leaves not being envisaged as per Section 19 of the rules itself.
12. It is also required to be mentioned, at this stage, that every convict or prisoner till he is released upon completion of his sentence or upon the State considering his application for remission positively is under a legal obligation to remain in prison to complete his sentence. Section 20 as referred to herein above inter alia states that period spent on parole shall not count as remission of the sentence. Thus, granting the prayer of the present applicant for releasing the present applicant till Page 6 of 10 Downloaded on : Sun Sep 17 23:05:07 IST 2023 NEUTRAL CITATION R/SCR.A/4035/2023 ORDER DATED: 28/03/2023 undefined final disposal of his application before this Court for a direction to the State to consider his remission application, would almost amount to granting leave to the present applicant in such terms as if he would not be required to undergo the remainder of his sentence. Certainly in the considered opinion of this Court, rules did not envisage grant of such parole leave and whereas, as noted herein above, preferring petition and waiting till the petition is finally decided could never count as a specific exigency for the purpose of being released on parole leave.
13. At this stage, it would be relevant to refer to Section 433 of the Code of Criminal Procedure, which lays down the power of the State to commute sentence of prisoner and 433(A) which lays down restriction on power of remission or commutation in certain cases. A perusal of the Section indicates that what is laid down is the power available with the Government without the consent of the person sentenced to commute his death sentence to any other punishment or a sentence for imprisonment for life to an imprisonment for a term not exceeding 14 years and for a sentence of rigorous imprisonment to a sentence of simple imprisonment for any term and a sentence of simple imprisonment to a sentence of fine. Reading the provisions, it would appear that the law recognizes the right of the State to commute sentences and whereas, the said Section or the scheme of the Section, does not in any way whatsoever confer any right upon the prisoner/ convict to claim remission/ commutation of Page 7 of 10 Downloaded on : Sun Sep 17 23:05:07 IST 2023 NEUTRAL CITATION R/SCR.A/4035/2023 ORDER DATED: 28/03/2023 undefined sentence as vested right.
14. It would also appear from the perusal of the said section that the Government is empowered to exercise the power granted under the said Section even without consent of the person concerned. Thus, it would appear that a prisoner/ convict may not have any right to claim commutation or remission of his sentence as a vested right.
15. At this stage, this Court seeks to rely upon observation of the Hon'ble Apex Court in case of H. Nilofer Nisha(supra) relied upon by learned APP Mr. Patel at paragraph no. 26 of the said decision, being relevant for the present purpose is quoted herein below for benefit. Paragraph 26: "We would also like to point out that the grant of remission or parole is not a right vested with the prisoner. It is a privilege available to the prisoner on fulfilling certain conditions. This is a discretionary power which has to be exercised by the authorities conferred with such powers under the relevant rules/ regulations. The court cannot exercise these powers though once the powers are exercised, the Court may hold that the exercise of powers is not in accordance with rules.
16. From the above quoted portion, juxtaposing the same with the discussion as herein above, it would clearly appear that neither grant of Page 8 of 10 Downloaded on : Sun Sep 17 23:05:07 IST 2023 NEUTRAL CITATION R/SCR.A/4035/2023 ORDER DATED: 28/03/2023 undefined remission nor grant of parole is a right vested with the prisoner. As far as remission is concerned, it would appear that the same is a privilege available to the prisoner on fulfilling certain conditions and whereas, grant or refusal of both parole and remission is based upon discretionary power which is exercised by the authorities conferred with such powers under the relevant rules. In other words, merely because an application is preferred by the applicant for directing the State to consider his application for remission would not entitle the prisoner/ convict to claim any vested right to be released on parole. 16.1. Furthermore, in the instant case, it would appear that the request of the present applicant for remission of his sentence having been rejected and his mercy application having been rejected by the Hon'ble Governor, the applicant has preferred a petition and whereas, the present applicant is seeking to be released on parole till the said writ petition is finally decided. Thus it would appear that the applicant is requesting this Court for exercising powers under The Prison (Bombay Furlough and Parole) Rules, 1959 to grant remission to him till his application challenging rejection of remission is decided by the learned Co-ordinate Bench. Considering such a request would definitely be inappropriate and certainly not in accordance with law.
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17. As noted herein above, the exercise of such powers for granting an open ended parole leave not being envisaged in the rules and whereas, since it clearly appears that neither parole nor remission could be sought for by a convict as a right, in the considered opinion of this Court, the prayer of the applicant being meritless, the present application is required to be rejected. The same is rejected.
(NIKHIL S. KARIEL,J) Mrs.J.J.Kedia/ V.V.P. PODUVAL Page 10 of 10 Downloaded on : Sun Sep 17 23:05:07 IST 2023