Madras High Court
The Zonal Director, Narcotics Control ... vs Alai Joseph Iruthairaj @ Raja And State ... on 27 December, 2002
ORDER E. Padmanabhan, J.
1. The Zonal Director, Narcotics Control Bureau, Southern Zonal Unit, a third party, with the leave of this Court, sought for review of the order dated 30.4.2002 made in W.P. No.5000 of 2002.
2. Heard Mr. P.N. Prakash, learned counsel appearing for the review petitioner, Mr. I. Subramanian, learned Public Prosecutor appearing for the second respondent and Mr. Sankarasubbu, learned counsel appearing for the first respondent.
3. The first respondent, who is undergoing sentence in Central Prison, Madurai, moved W.P. No.5000 of 2002 praying this Court for the issue of a writ of certiorarified mandamus to call for the records relating to letter dated 9.4.2001 of the 2nd respondent, quash the same and direct the said respondents to grant one month's parole to the petitioner. Concedingly, the first respondent has been convicted for offence under Section 8(c) read with Section 21 of The Narcotic Drugs and Psychotropic Substances Act and he was sentenced to undergo rigourous imprisonment for ten years and pay a fine of Rupees One Lakh by the Special District and Sessions Court, Madurai. The appeal preferred by the first respondent also has been dismissed and the conviction as well as the sentence have been confirmed. The first respondent applied for parole for a period of one month on the ground that he has to see his mother, who is bed-ridden and in a very bad shape. The said request was rejected. Hence, the first respondent moved the writ petition.
4. Following the pronouncement of the Supreme Court in DADU @ TULSIDAS VS. STATE OF MAHARASHTRA , this Court quashed the impugned proceedings and remitted the matter back to the State Government for de novo consideration in the light of the discussions. The State Government after consideration granted parole. After parole period, the second respondent has surrendered and he is undergoing imprisonment. The said order of this Court was reported in 2002 MLJ (Crl.) 744.
5. The review petitioner on coming to know of the order has come before this Court seeking for review of the order, with the leave of this Court, as according to the review petitioner, parole, if any, in respect of the first respondent could be granted only by the Central Government and not by the State Government, as the appropriate Government to grant parole in this case is the Central Government.
6. It is contended by Mr. Prakash, learned counsel appearing on behalf of the review petitioner that the first respondent, who has been convicted under The Narcotic Drugs and Psychotropic Substances Act, which case has been investigated and prosecuted by the Narcotics Control Bureau, if at all it is only the Union Government, which could grant parole and not the State Government. The learned counsel also referred to the Tamil Nadu Suspension of Sentence Rules, 1982, framed under Section 432(5) of The Code of Criminal Procedure. In terms of Section 432(7) the appropriate Government being the Central Government in the present case, the State Government has no authority or jurisdiction to grant parole.
7. The learned counsel also referred to Rule 23 of the rules and Section 432 of The Code of Criminal Procedure, 1973 and contended that it is a misgiving for this Court to have directed the State Government to consider the application of parole and parole, if any, could be granted only by the Union Government and, therefore, the order passed by this Court has to be reviewed.
8. According to Mr. Prakash, if the order passed in the writ petition is not reviewed, it would result in a wrong pronouncement being continued and as a result of which the State will be exercising the power of parole, while it is the Union Government, which is the appropriate Government, which is the authority to release the prisoners, who have been convicted under The Narcotic Drugs and Psychotropic Substances Act in respect of the cases where the investigation and prosecution was by Central Agency.
9. Per contra, Mr. I. Subramanian, learned Public Prosecutor contended that no review is called for as the parole is not a suspension of the sentence and, therefore, the State Government, which has the administrative power could grant parole as has been laid down by this Court while following the pronouncement of the Supreme Court in DADU @ TULSIDAS case. The learned Public Prosecutor further contended that the entire plea in this review is on the basis that parole is a remission and, therefore, remission, if any, in respect of the offence committed by an accused could be by the Central Government, which is the appropriate Government in the present case. The parole granted is not a remission and this Court has rightly directed the State Government to consider the request for parole. Factually, parole was granted and the first respondent accused, who went on parole has availed the period of parole and has surrendered back to the Central Jail for undergoing the sentence.
10. Though the contention advanced by Mr. Prakash, learned counsel appearing for the petitioner is persuasive, but it cannot be countenanced in view of the pronouncement of the Apex Court in DADU @ TULSIDAS case as well as the decision in SUNIL FULCHAND SHAH VS. UNION OF INDIA & ORS. . Mr. Prakash, learned counsel for the review applicant mainly contended that in terms of Section 432, in the present case the Union Government is the appropriate Government and, therefore, parole, if any, has to be granted only by the Union Government and not by the State Government. This contention also is a misconception of the said provision as the said provision has no application in respect of parole, but it applies only in respect of remission, etc.
11. Section 432 of The Code of Criminal Procedure, provides for suspension or remission of sentence. Sub-section (7) of Section 432 provides a special meaning for the expression "appropriate Government". "Appropriate Government" means :-
"(a) 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 ; and
(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed."
Thus the entirety of Section 432 provides for either suspension or remission of sentence and no part of the said provision provides for or contemplates grant of parole.
12. While following the pronouncement of the Supreme Court in DADU @ TULSIDAS case, this Court held that parole is not a suspension of the sentence and, therefore, the State Government was directed to consider the application for grant of parole.
13. While construing Sections 401 and 402 (3) of The Code of Criminal Procedure, 1898 as well as Section 432 of The Code of Criminal Procedure, 1973, the Apex Court in STATE OF MADHYA PRADESH VS. RATAN SINGH & ORS. , held that the test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and Government of that State would be the appropriate Government within the meaning of Section 401 of The Code of Criminal Procedure, 1898 so also under Section 432 of The Code of Criminal Procedure, 1973.
14. In STATE OF MADHYA PRADESH VS. RATAN SINGH & ORS., the Apex Court held thus :-
"6. .... A perusal of this provision clearly reveals that the test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of Section 401 of the Code of Criminal Procedure. Thus since the prisoner in the instant case was tried, convicted and sentenced in the State of Madhya Pradesh, the State of Madhya Pradesh would be the appropriate Government to exercise the discretion for remission of the sentence under Section 401 (1) of the Code of Criminal Procedure. Although the present case is governed by the old Code, yet we may mention that the new Code of Criminal Procedure, 1973 has put the matter completely beyond any controversy and has reiterated the provisions of Section 402(3) in sub-section (7) of Section 432 which provides thus:
(7) In this section and in Section 433, the expression "appropriate Government" means,-
"(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;
(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed."
Actually this clause has been bodily lifted from the provisions of Section 402(3) and has made the position absolutely clear.
7. In Surjit Singh v. State of Punjab4 a Division Bench of the Punjab and Haryana High Court has also taken the view that the appropriate Government would be the Government of the State where the prisoner has been convicted and sentenced. The Division Bench of the court after an exhaustive discussion of the various provisions of the Code of Criminal Procedure and the Rules observed as follows:
"There is, however, nothing to indicate that for the purposes of remission and suspension of sentences under Section 401, Criminal Procedure Code, the Legislature intended to adopt a different definition of 'appropriate Government'. In short, under Section 401, Criminal Procedure Code, the Government of the State of conviction and not the Punjab Government was competent to remit the balance of the sentence of these life convicts. All that the Punjab Government could do was to forward the cases of these life convicts to the appropriate Government for remitting the remaining term of their life imprisonment, in exercise of the power under Section 401. Criminal Procedure Code. The Punjab Government has already made such a reference in favour of the petitioners to the Governments of the States of conviction. Neither the Punjab Government nor the Superintendent of Jail concerned can release the prisoners under any of the statutory rules contained in Punjab Jail Manual without receiving the necessary orders of the appropriate Government under Section 401. Pending the receipt of orders of the. appropriate Government, therefore, the detention of the petitioners could not by any reasoning, be called illegal."
We find ourselves in complete agreement with the view taken by the Punjab and Haryana High Court."
15. In RAMDEO CHAUHAN VS. STATE OF ASSAM , a three Judges Bench of the Supreme Court had occasion to consider the scope of Sections 432, 433 and 433-A of The Code of Criminal Procedure. S.N. Phukan, J., while concurring with the other two Judges, held thus :-
"57. Section 432 of the Code empowers the appropriate Government to suspend or remit sentences. The expression "appropriate Government" means the Central Government in cases where the sentences or order relates to the matter to which the executive power of the Union extends, and the State Government in other cases. The release of the prisoners condemned to death in exercise of the powers conferred under Section 432 and Article 161 of the Constitution does not amount to interference with due and proper course of justice, as the power of the court to pronounce upon the validity, propriety and correctness of the conviction and sentence remains unaffected. Similar power as that contained in Section 432 of the Code or Article 161 of the Constitution can be exercised before, during or after trial. The power exercised under Section 432 of the Code is largely an executive power vested in the appropriate Government and by reducing the sentence, the authority concerned thereby modifies the judicial sentence. The section confines the power of the Government to the suspension of the execution of the sentence or remission of the whole or any part of the punishment. Section 432 of the Code gives no power to the Government to revise the judgment of the court. It only provides power of remitting the sentence. Remission of punishment assumes the correctness of the conviction and only reduces punishment in part or whole. The word "remit" as used in Section 432 is not a term of art. Some of the meanings of the word "remit" are "to pardon, to refrain from inflicting, to give up". It is therefore no obstacle in the way of the President or Governor, as the case may be in remitting the sentence of death. A remission of sentence does not mean acquittal." .
16. In LAXMAN NASKAR (Life Convict) VS. STATE OF WEST BENGAL , Rajendra Babu, J., after referring to STATE OF MADHYA PRADESH VS. RATAN SINGH & ORS. reiterated the legal position as to the nature of power to be exercised or arising under Section 432 of The Code of Criminal Procedure read with Article 161 of The Constitution and the relevant rules in STATE OF MADHYA PRADESH VS. RATAN SINGH & ORS.
17. In the light of the above pronouncements, it is clear that Section 432 provides for suspension or remission and not for parole. Therefore, it is being pointed out by the learned Public Prosecutor that the question of appropriate Government as prescribed in Sub-section (7) of Section 433 has no bearing.
18. In DADU @ TULSIDAS case, as ready referred to in the order dated 30.4.2002, it is held that parole is not a suspension of the sentence and grant of parole is essentially an executive function exercised within the limits prescribed in that behalf. R.P. Sethi, J., (as he then was), speaking for the Bench, held thus :-
"11. It is thus clear that parole did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of Section 32-A of the Act. Notwithstanding the provisions of the offending section, a convict is entitled to parole, subject however, to the conditions governing the grant of it under the statute, if any, or the jail manual or the government instructions."
19. The same view has been reiterated in a still later pronouncement in SUNIL FULCHAND SHAH VS. UNION OF INDIA & ORS. . A five Judges Bench of the Apex Court examined the grant of parole in respect of a COFEPOSA detenue. In that context, the Apex Court held thus :-
"25. "Parole", however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. The dictionary meaning of "parole" is:
The Concise Oxford Dictionary - (New Edition) "The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behaviour; such a promise; a word of honour."
Black's Law Dictionary - (6th Edition) "Release from jail, prison or other confinement after actually serving part of sentence; Conditional release from imprisonment which entitles parolee to serve remainder of his term outside confines of an institution, if he satisfactorily complies with all terms and conditions provided in parole order."
According to The Law Lexicon, "parole" has been defined as:
"A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole."
According to Words and Phrases :
"'Parole ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. People ex rel Rainone v. Murphy.
'Parole' does not vacate sentence imposed, but is merely a conditional suspension of sentence. Wooden v. Goheen.
A 'parole' is not a 'suspension of sentence', but is a substitution, during continuance of parole, of lower grade of punishment by confinement in legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the court. Jenkins v. Madigan.
A 'parole' does not suspend or curtail the sentence originally imposed by the court as contrasted with a 'commutation of sentence' which actually modifies it."
26. In this country, 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 administrative instructions, however, rules have been framed in various States, regulating the grant of parole. Thus, the action for grant of parole is generally speaking, an administrative action. The distinction between grant of bail and parole has been clearly brought out in the judgment of this Court in State of Haryana v. Mohinder Singh to which one of us (Wadhwa, J.) was a party. That distinction is explicit and I respectfully agree with that distinction.
27. Thus, it is seen that "parole" is a form of "temporary release" from custody, which does not suspend the sentence or the period of detention, but provides conditional release from custody and changes the mode of undergoing the sentence."
This latest pronouncement of the larger Bench is the answer. This larger Bench held that grant of parole, generally speaking, an administrative action and also held that The Code of Criminal Procedure does not contain any provision for grant of parole.
20. In the light of the said pronouncement, the appropriate Government being the Union Government and, therefore, the State cannot grant parole is a misreading of the said Section 432. As held by the Apex Court, The Code of Criminal Procedure has no provision for parole and it is an administrative decision.
21. Therefore, the question regarding the appropriate Government is not required to be decided in this case as already held in the order dated 30.4.2002 as Section 432 has no application and for that matter The Code of Criminal Procedure has no provision regarding the grant of parole. The entire edifice of the argument of Mr. Prakash is based upon the construction placed by him on Section 432. In the light of the pronouncements of the Supreme Court referred above and in particular in SUNIL FULCHAND SHAH's case, the contention fails.
22. Further, as has rightly been laid down in STATE OF MADHYA PRADESH VS. RATAN SINGH & ORS. , even while construing Section 432 of The Code of Criminal Procedure, which is impari meteria with Section 401 of The Code of Criminal Procedure, 1898, the Apex Court held that appropriate Government is the Government of the State where the prisoner has been convicted and sentenced. The above contention advanced by Mr. Prakash fails and, consequently, the review application deserves to be dismissed.
23. In the result, this review application is dismissed. No costs. This Court records the valuable services rendered by Mr. I. Subramanian, learned Public Prosecutor in effectively assisting the Court.