Madras High Court
A.Krishnan vs The State Represented By on 18 December, 2009
Author: M.Jaichandren
Bench: M.Jaichandren
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 18/12/2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition (MD) No.11284 of 2009 A.Krishnan .. Petitioner. Versus 1.The State Represented by The Home Secretary, Fort St. George,Chennai. 2.The Inspector General of Prisons, Thalamuthu Natarjan Maligai, Egmore, Chennai. 3.The Deputy Inspector General of Prisons, Madurai Circle, Central Prison Campass, Madurai-16, Madurai District. 4.The Superintendent of Prisons, Central Prison, Madurai-16, Madurai District. 5.The Inspector of Police, Srivilliputur Town Police Station, Srivilliputur, Virudhunagar District. .. Respondents. Prayer Petition filed seeking for a writ of Mandamus, directing the 1st respondent to include the petitioner's parole period in the period of the petitioner's conviction. !For Petitioner ... Mr.V.Kathirvelu ^For Respondents ... Mr.Pala Ramasamy Special Government Pleader (R1 to R5) :ORDER
This writ petition has been filed praying for a Writ of Mandamus to direct the first respondent to include the petitioner's parole period in the period of the petitioner's conviction and pass other necessary orders.
2. The petitioner has stated that he was charged by the fifth respondent, under Section 302, read with Section 34 of the Indian Penal Code, in Crime No.943 of 1991. He was tried by the Principal District Judge, Srivilliputur, in S.C.No.42 of 1994 and he was found guilty. Therefore, the petitioner was convicted to undergo a sentence of life imprisonment, on 26.8.1994. The petitioner had preferred an appeal before this Court, in Criminal Appeal No.478 of 1994. The said appeal had been dismissed, on 17.7.2002, confirming the conviction. Thereafter, the petitioner had preferred a Special Leave Petition before the Supreme Court, in Criminal Appeal No.1149 of 2002. The said appeal had also been dimissed , on 29.7.2003.
3. The petitioner has further stated that he has been on parole on many occasions, as per the rules and regulations applicable to the petitioner, including the Tamil Nadu Prison Manual Rules. However, the prison authorities have not included the parole period, as part of the period of sentence. The petitioner has further stated that he had not been involved in any other case and there are no adverse remarks against him. In such circumstances, the petitioner had submitted a representation, dated 27.10.2009, to the jail authorities requesting them to include the parole period, as part of the period of sentence undergone by the petitioner. However, no order has been passed on the request of the petitioner, dated 27.10.2009.
4. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions:
4.1. In Sunil Fulchand Shah V. Union of India (AIR 2000 SC 1023), it has been held as follows (Para6) :
".... The detenu is not a free man while out on parole. Even while on parole he continues to serve the sentence or undergo the period of detention in a manner different than from being in custody. Parole does not keep the period of detention in a State of suspended animation. The period of detention keeps ticking during this period of temporary release of a detenu also because a parolee remains in legal custody of the State and under the control of its agents, subject at any time, for breach of condition, to be returned to custody.... The period of detention would not stand automatically extended by any period of parole granted to the detenu unless the order of parole or rules or instructions specifically indicates as a term and condition of parole, to the contrary. The period during which the detenu is on parole, therefore, requires to be counted towards the total period of detention."
4.2. In State of Haryana V. Nauratta Singh (2000 SCC (Cri) 711), it has been held as follows:
"14. 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 taken after the door has been closed on a convict. During parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also.
15. A Constitution Bench of this Court has considered the distinction between bail and parole in the context of reckoning the period which a detenu under a preventive detention order has to undergo in prison. It was in Sunil Filchand Shah V. Union of India Dr.A.S.Anand, C.J., speaking for himself and for K.T.Thomas, D.P.Wadhwa and S.Rajendra Babu, JJ., has observed thus: (SCC p.429, para 24) "24. Bail and parole have different connotations in law. Bail is well understood in criminal jurisprudence and chapter XXXIII of the Code of Criminal Procedure 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 trial. The effect of granting bail is to release the accused from internment though the Court would still retain constructive control over him through the sureties."
16. After referring to the meaning given to the word "parole" in different lexicographs learned Chief Justice has stated thus: (SCC p. 431, para 27) "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."
17. In a recent decision rendered by a two-Judge Bench of this Court in State of Haryana V. Mohinder Singh a similar question was considered and it was held that the benefits intended for those who are on parole or furlough cannot be extended to those who are on bail. The said decision has been quoted with approval by the Constitution Bench in the majority judgment in Sunil Fulchand Shah."
4.3. In Dadu Alias Tulsidas Vs. State of Maharashtra (2000 SCC (Cri) 1528), it has been held as follows:
"Parole is not a suspension of the sentence. The convict continues to be serving the sentence despite granting of parole under the statute, rules, jail manual or the Government Orders. "Parole" means the release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from jail, prison or other internment after actually being jail serving part of sentence. Grant of parole is essentially an executive function to be exercised within the limits prescribed in that behalf. It would not be open to the court to reduce the period of detention by admitting a detenu or convict on parole. The Court cannot substitute the period of detention either by abridging or enlarging it.
It is this clear that parole did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb if Section 32-a of the Narcotic Drugs and Psychotropic Substances 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 government instructions."
4.4. In N.Padmini V. DIG of Prison Chennai Range (2009(1) MLJ (Crl) 528), it has been held as follows:
"Parole is not a suspension of sentence and it is essentially the function of the executive and it cannot be excluded from the period of sentence in the absence of any statute, notification or instructions by the State."
4.5. In the order passed by a learned Single Judge of this Court, dated 7.10.2009, made in W.P.No.4231 of 2009, it has been held that the legal position, which emanates from the various judgments of the Courts of law, is that `parole' does not amount to execution, suspension, remission and commutation of sentence, nor is it a criminal penalty. The release of a person on parole is subject to regular monitoring by an officer of law during the particular period. `Parole' is granted, subject to the conditions governing the grant of it, under the relevant statute, the jail manual, government instructions etc. Therefore, the period spent by the convict on `parole', should be included in the period of his sentence.
5. The learned counsel for the petitioner had submitted that the period spent by the petitioner, on `parole', shall be included as part of the sentence to be served by the petitioner and therefore, the jail authorities should be directed to count the `parole' period of the petitioner, as part of the sentence imposed on him.
6. Mr.Pala Ramasamy, the learned Special Government Pleader, appearing on behalf of the respondents, had submitted that there are no statutory rules or regulations stating that the `parole' period should be considered to be part of the sentence served by the convicted person. No executive orders or instructions are existing to that effect. The Tamil Nadu Jail Manual does not specify the conditions relating to parole. Therefore, there are no merits in the writ petition and hence, it is to be rejected.
7. In view of the submissions made by the learned counsel appearing on behalf of the petitioner, as well as the respondents and in view of the decisions cited supra, it is clear that the period of `parole', undergone by the petitioner, cannot be considered to be part of the sentence to be served by the petitioner in incarceration, unless there are specific provisions in the relevant statute, or in case there are rules, regulations or executive instructions and orders to that effect. Therefore, this Court finds it appropriate to direct the first respondent to consider and pass appropriate orders on the representation of the petitioner, dated 27.10.2009, within a period of twelve weeks from the date of receipt of a copy of this order, taking into consideration the observations made by this Court in this order. Accordingly, the writ petition is disposed of with the above observations. No costs.
csh To
1. The Home Secretary, Fort St. George,Chennai.
2.The Inspector General of Prisons, Thalamuthu Natarjan Maligai, Egmore, Chennai.
3.The Deputy Inspector General of Prisons, Madurai Circle, Central Prison Campass, Madurai-16, Madurai District.
4.The Superintendent of Prisons, Central Prison, Madurai-16, Madurai District.
5.The Inspector of Police, Srivilliputur Town Police Station, Srivilliputur, Virudhunagar District.