Rajasthan High Court - Jaipur
Sanjay Jain Alias Nawab vs State (Home Department)Ors on 28 January, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN D.B. Civil Writ (Parole) Petition No.18721/2012 Sanjay Jain @ Nawab through his father Kailash Chand Panday Vs. State of Rajasthan and Others Date of Order ::: 28.01.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Mr. Justice Veerendra Singh Siradhana Shri B.R. Choudhary, counsel for petitioner Shri G.S. Bapna, Advocate General, with Shri Vyanktesh Garg and Shri Sarvesh Jain, for respondents #### //Reportable// By the Court:-
This writ petition under Article 226 of the Constitution of India has been filed by Sanjay Jain @ Nawab, who, following his conviction under Section 302 of the I.P.C., is serving sentence of life imprisonment awarded by learned Special Judge (Sati Niwaran) & Additional Sessions Judge, Jaipur City, Jaipur, vide judgment dated 16.03.2012 in Sessions Case No.17/2006. Appeal filed by him against aforesaid judgment of conviction and sentence, being Criminal Appeal No.313/2012, is pending before this Court for decision.
On the last date of hearing, learned Advocate General was called upon to address the court on the question whether the Rajasthan Prisoners Release on Parole Rules, 1958 would be applicable to prisoners serving their sentence, whose appeals against conviction are pending before this court?
Shri B.R. Choudhary, learned counsel for petitioner argued that petitioner is in jail ever since his initial arrest because during trial also he was not on bail. He continues to be in jail even after his conviction. He has thus served as many as six years of sentence. His conduct inside the jail and behaviour with the inmates has been exemplary and unblemished. No complaint about his conduct has been received by the jail authorities. He is, therefore, entitled to be released on first regular parole of twenty days in accordance with Rule 9 of the Rajasthan Prisoner Release on Parole Rules, 1958 (for short, 'the Rules of 1958').
Petitioner applied for his release on first parole under the Rules of 1958 to the District Parole Advisory Committee, Jaipur, which, however, vide its resolution dated 16.07.2012, decided not to grant parole to petitioner on flimsy and mechanical ground of adverse report sent by the police.
Learned counsel for petitioner submitted that respondents in reply to writ petition have relied on Division Bench judgment of this court in Umesh Kumar Singh @ Munna Singh Vs. The State of Rajasthan 2012 (3) WLC (Raj.) 739 to argue that those convicts, whose appeals against conviction are still pending before this court, are not entitled to be released on parole. Accordingly, the Director General (Prisons) has issued a Circular No.18324-60 dated 26.07.2012 and the Additional chief Secretary (Home) also issued a Circular No.Pa.8(1)/Home-12/Pri./2007 dated 30.08.2012 inconformity with aforesaid Division Bench judgment of this court in Umesh Kumar Singh.
Shri B.R. Choudhary, learned counsel for petitioner, further submitted that aforesaid Division Bench judgment of this court does not law down correct law inasmuch as it has not followed previous two Division Bench judgments of this Court in Bhanwar Lal Godara and Others Vs. State of Rajasthan and Others 2005 (1) WLC (Raj.) 93 and Gani Khan Vs. State of Rajasthan 2010 (1) Cr.L.R. (Raj.) 378, whereby two different Division Benches respectively at the principle seat at Jodhpur and bench at Jaipur, held that even when appeal filed by a convict prisoner against his conviction is pending and his application for suspension of sentence has been rejected, he can still be granted parole provided he has completed 1/4th of his sentence with remission.
Shri B.R. Choudhary, learned counsel for petitioner next argued that aforesaid Division Bench judgment in Umesh Kumar is also contrary to Constitution Bench judgment of the Supreme Court in Sunil Fulchand Shah v. Union of India and Others (2000) 3 SCC 409. The Division Bench in Umesh Kumar has not correctly appreciated the concept of parole in its true perspective which is entirely different than suspension or remission of sentence. In this connection, learned counsel for petitioner has also relied on Full Bench judgment of the Bombay High Court in S. Sant Singh Vs. Secretary, Home Department, Government of Maharashtra and Others, (2006 Cr.L.J. 1515).
Shri G.S. Bapna, learned Advocate General appearing on behalf of respondents State, has argued that there can be no distinction between cases of those convict-prisoners, whose appeals against their conviction have been decided and those, whose appeals are pending. Learned Advocate General submitted that the Rules of 1958 are purported to have been framed in exercise of powers conferred on the State Government under Section 432 Cr.P.C. but that provision merely applies to the cases of suspension or remission of sentence by the appropriate Government. Relevant provision under which the Parole Rules can be framed is clauses (29) and (30) of sub-section (1) of Section 59 of the Prisons Act, 1894. He argued that the State of Goa, Daman and Diu has, by the State amendment, inserted Section 58-A in the Prisons Act empowering the State Government or any authority authorized by it, to release a prisoner on parole in accordance with such Rules as may be made in this behalf. A proposal is under consideration of the Government for introducing similar State amendment in the Prisons Act, 1894. Learned Advocate General argued that sub-clauses (29) of sub-section (1) of Section 59 in any case authorizes the State Government to make such Rules consistent with the Prisons Act, 1894. Mere mention of Section 432 of the Code of Criminal Procedure in the caption of the Rules of 1958 as source of power, would not invalidate the aforesaid Rules. Learned Advocate General submitted that judgment of the Division Bench of this Court in Umesh Kumar Singh, supra, does not lay down correct law and it requires reconsideration.
Question that arises for consideration in view of aforesaid submissions is whether this court in exercise of powers of its judicial review while examining validity of an order of executive refusing to grant parole to a prisoner, whose appeal against conviction is pending, can entertain a writ petition under Article 226 of the Constitution of India and direct his release on parole.
Division bench of this court in Bhanwar Lal Godara, supra, held that if application for suspension of sentence is rejected, accused-prisoner would still have right to move application for parole if he has completed one-fourth of sentence with remission subject to his good conduct in jail. Another Division Bench in Gani Khan, supra, also reiterated the same view.
In recent judgment in Umesh Kumar Singh supra, however, a Division Bench of this court has taken a contrary view of the matter as in its opinion, ratio of the Constitution Bench of the Supreme Court in K.M. Nanavati Vs. State of Bombay AIR 1961 SC 112, has held otherwise. In Umesh Kumar Singh, the Division Bench held that the power of the State Government under the Parole Rules cannot be exercised so long appeal filed by a convicted person is pending and the appellate court is in seizin of the case. The parole Rules cannot stultify or thwart the judicial process and even in the most emergent circumstances, the courts will be open to grant relief to a convict in deserving cases. The Division Bench in Umesh Kumar Singh, went on to hold that decision of earlier Division Bench in Bhanwar Lal Godara was not inconsonance with the law laid down by the Supreme Court in K.M. Nanavati and principles laid down therein.
We have gone through judgment of the Supreme Court in K.M. Nanavati, supra, wherein the question before the Supreme Court was whether the Governor, under Article 161 of the Constitution of India, can exercise his power of suspension of sentence during the period when the Supreme Court is in seizin of the case. In the facts of that case, the Supreme Court held that he could not. With due respect, we find ourselves unable to concur with the view expressed by the Division Bench in Umesh Kumar Singh on reading of K.M. Nanavati. The Supreme Court in K.M. Nanavati considered the provisions of Section 401 and 426 of the old Criminal Procedure Code of 1898, which are respectively in para-meteria with Sections 432 and 389 of the Criminal Procedure Code, 1973. The question that arose for consideration before the Supreme Court was whether Governor of a State in exercise of his powers under Art. 161 of the Constitution is competent to suspend the sentence for the period when the Supreme Court is in seizin of the case, also having power of suspending the sentence under Section 426 of the old Code, during that period. The powers under Section 432 of the Cr.P.C. in the new Code (401 of the old Code) are referable to Article 161 of the Constitution. In those facts, the Supreme Court in K.M. Nanavati, supra, held as under:-
In the present case, the question is limited to the exercise by the Governor of his powers under Art. 161 of the Constitution suspending the sentence during the pendency of the special leave petition and the appeal to this Court; and the controversy has narrowed down to whether for the period when this Court is in seizin of the case the Governor could pass the impugned order, having the effect of suspending the sentence during that period. There can be no doubt that it is open to the Governor to grant a full pardon at any time even during the pendency of the case in this Court in exercise of what is ordinarily called "mercy jurisdiction ". Such a pardon after the accused person has been convicted by' the Court has the effect of completely absolving him from all Punishment or disqualification attaching to a conviction for a criminal offence. That power is essentially vested in the head of the Executive, because the judiciary has no such 'mercy jurisdiction'. But the suspension of the sentence for the period when this Court is in seizin of the case could have been granted by this Court itself. If in respect of the same period the Governor also has power-to suspend the sentence, it would mean that both the judiciary and the executive would be functioning in the same field at the same time leading to the possibility of conflict of jurisdiction. Such a conflict was not and could not have been intended by the makers of the Constitution. But it was contended by Mr. Seervai that the words of the Constitution, namely, Art. 161 do not warrant the conclusion that the power was in any way limited or fettered. In our opinion there is a fallacy in the argument in so far as it postulates what has to be established, namely, that the Governor's power was absolute and not fettered in any way. go long as the judiciary has the power to pass a particular order in a pending case to that extent the power of the Executive is limited in view of the words either of Ss. 401 and 426 of the Code of Criminal Procedure and Arts. 142 and 161 of the Constitution. If that is the correct interpretation to be put on these pro visions in order to harmonise them it would follow that what is covered in Art. 142 is not covered by Art. 161 and similarly what is covered by s. 426 is not covered by s.401. On that interpretation Mr. Seervai would be right in his contention that there is no conflict between the prerogative power of the sovereign state to grant pardon and the power of the courts to deal with a pending case judicially.
A comparison of Section 432 of the new Code with Section 389 of the new Code (426 of the old Code), would make it clear that the power of suspension and execution of sentence is vested in both - the appellate court as also the appropriate Government, but what flows from the judgment of the Supreme Court in K.M. Nanavati is that so long as the appeal is pending before the appellate court, it is the appellate court alone, which can exercise those powers. It therefore follows that though the power may be concurrently available with the appellate court as well as the appropriate government, the appropriate government would take recourse to those powers only when the appeal against conviction and sentence has been finally decided and not there-before. This explains the observations that so long as the judiciary wield such power in a pending case, the power of the executive shall stand curtailed.
The view, similar to the one expressed by Division bench in Umesh Kumar Singh, was also taken by Division Bench of Bombay High Court in Jayant Veerappa Shetty & Another Vs. State of Maharashtra & Others - 1986 CrLJ 1298 (Bom.), which was followed by a Full Bench of Gujarat High Court in Latif Chhmtumiya Shaikh Vs. State of Gujarat (2000) 3 GLR 2362, but the matter again travelled to Bombay High Court in S. Sant Singh Vs. Secretary of Home Department, Government of Maharashtra 2006 Cr.L.J. 1515 (Bom.), when the Government of Maharashtra rejected application of a prisoner for release on parole on the ground that his appeal against conviction and sentence was pending before the Bombay High Court. A subsequent Division Bench made reference to Larger Bench observing that in Jayant Virappa Shetti, provisions of section 432 of the Cr.P.C. have not been correctly analyzed before arriving at the said conclusion. In those facts, the Full Bench of Bombay High Court in S. Sant Singh, while overrulling Division bench judgment in Jayant Virappa Shetti, held as under:-
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, Criminal Procedure Code 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 Criminal Procedure Code are not curtailed.
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 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 v. Union of India reported in 2000 SCC (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 Criminal Procedure Code.
Division Bench of this Court in Umesh Kumar Singh has, however, found judgment of Bombay High Court in S. Sant Singh distinguishable on the ground that while Prisoners (Bombay) Parole Rules have been framed by the then State of Bombay in exercise of powers conferred by Clauses (5) and (28) of sub-section (1) of Section 59 of the Prisons Act, whereas the Rajasthan Prisoners (Release on Parole) Rules, 1958 have been framed by the Government of Rajasthan in exercise of powers conferred by sub-section (6) of Section 401 of Code of Criminal Procedure, 1898, which is in para-meteria with Section 432 of the Code of Criminal Procedure, 1973. Further Umesh Kumar Singh, supra, held that while in the Bombay Rules, the period spent on parole is not counted as remission of the sentence, but in the Rajasthan Rules the period of parole is deemed to be remission as it has to be treated the imprisonment served by the prisoner.
In our considered view, grant of parole is essentially an executive function and there is no such power available to any court including this court in any of the provisions of the Criminal Procedure Code. Power of the executive to grant parole to a prisoner flows from Section 59(1)(29) of the Prisoners Act, 1894. Thus, it is the executive which has to take a decision for granting or refusing to grant the parole. A prisoner is entitled to approach this court invoking its jurisdiction under Article 226 of the Constitution questioning correctness of such decision. This court in exercise of its power of judicial review under Article 226 of the Constitution of India may examine validity of the order refusing grant of parole or not deciding the application to grant parole.
In our considered view, the State Government while promulgating Rajasthan Prisoners Release on Parole Rules, 1958, has made a wrong reference as to its source of power to frame such Rules, namely, under sub-section (6) of Section 401 of the Cr.P.C. 1989, which is in para-meteria to Section 432 of the Cr.P.C. Mere wrong reference to the source of power, however, cannot be a reason to invalidate parole Rules or otherwise make them inoperative, if the source of power with the Government to frame such Rules can be traced elsewhere.
Sub-Section (6) of Section 401 of the Code inter-alia provides as under:-
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.
Clauses (29) and (30) of Sub-Section (1) of Section 59 of the Prisons Act, 1894 reads as follows:-
(29). For release on parole or furlough and determining the conditions on which and the authority by which prisoners may be released on parole or furlough.
(30). All rules made under this Section shall be laid on the table of the Legislative Assembly as soon as may be, after they are made and shall be subject to such modifications as the Assembly may make during the Session in which they are laid or the one immediately following.
Learned Advocate General has referred to Section 58-A inserted by the State of Goa, Daman and Diu by State amendment which reads as follows:-
58-A. Release of prisoners on parole.- The State Government or any authority empowered by it may release a prisoner on parole or further in accordance with such rules as may be made in this behalf.
Learned Advocate General has contended that the State of Rajasthan is also contemplating to introduce similar State amendment in the Prisons Act, 1894, which, in our considered view, would merely be an exercise by way of abandoned precaution and may not be really necessary in view of the specific provision contained in clause (29) of sub-section (1) of Section 59 of the said Act, referred to supra.
The Constitution Bench of the Supreme Court in Union Of India And Another vs Tulsiram Patel and Others (1985) 3 SCC 398, held where source of power exists under more than one provision, failure to mention any one or some of them in the order made in exercise of that power would not vitiate the order. Partial mention, wrong mention or even non-mention of the provisions under which order is made would not vitiate the order. The Supreme Court in Tihag Vs. Orissa State (1975) 2 SCC 436, held that when an authority takes action which is within its competence, it cannot be held to be invalid merely because it purports to be made under wrong provision, if it can be shown to be within its power under any other provision. A mere wrong description of the source of power or a mere wrong label, cannot invalidate the action of an authority, if it is otherwise within its power. In State of Jharkhand and Others Vs. Pakur Jagran Manch and Others (2011) 2 SCC 591, the Supreme Court held that omission to refer to correct provision of law which is source of power, or mentioning of a wrong provision, will not by itself render an order of Government invalid or illegal, if Government had power under an appropriate provision of law.
Evidently, what the Supreme Court in K.M. Nanavati dealt with was the power of the appropriate Government and for that matter, of the Governor of a State to suspend sentence, which power, was also simultaneously available to the appellate court and therefore the issue that essentially arose before the Court as to the primacy of the power of appellate court which has to first exercise such power during pendency of the appeal. The appropriate Government and/or the Governor was held entitled to exercise such power only after remedy of appeal was exhausted.
The Division Bench in Umesh Kumar Singh, with great respect, in our opinion, was not correct in considering release on parole synonym with the suspension of sentence, which is entirely different concept altogether. The Division Bench has not followed the judgment of the Constitution Bench of the Supreme Court in Sunil Fulchand Shah. It appears that attention of the Division Bench was not invited to the Constitution Bench judgment of the Supreme Court in Sunil Fulchand Shah, supra, wherein the Supreme Court held as under:-
24. Section 3 of the COFEPOSA Act confers power on the Central Government, State Government and their officers if specially empowered, to make an order for detention against a person engaged in certain prejudicial activities specified in that section. Section 10 prescribes the maximum period for detention. It provides that the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Section 9 do not apply, shall be one year from the date of detention and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Section 9 apply, shall be two years from the date of detention. Section 11 of the Act confers power on the State Government and the Central Government to revoke or modify the detention order. Sub-section (2) of that Section however, provides that the revocation of a detention order shall not bar the making of another detention order under Section 3 against the same person. Section 12 authorises the Government to release the person detained for any specified period either without conditions upon such conditions as that person accepts. The Government has the power under that section to cancel his release. The person so ordered to be released may be required to enter into a bond with sureties for the due observance of the conditions on which he is released. If the person so released fails without sufficient cause to surrender himself he becomes liable to be punished with imprisonment for a term which may extend to two years, or with fine, or with both. Notwithstanding anything contained in any other law, Section 12 prohibits release of a person against whom a detention order is made, whether on bail or bail bond or otherwise.
25. A bare reading of Section 10 makes it clear that the maximum period for which a person can be preventively detained under the COFEPOSA Act is one year from the date of detention. But if a declaration is made under Section 9(1) of the Act, then the maximum period for which he can be detained is two years from the date of detention. The period of one year or two years, as the case may be, has to be counted from the date of detention and not from the date of the detention order. Though the Act permits revocation of the detention order and making of another detention order against the same person, it does not specifically provide what shall be the maximum period of detention in such a case. But it has been held that the total period of detention cannot exceed one year or two years, as the case may be. Section 12 which confers power on the Government to release temporarily a person detained does not specifically provide as to how that period is to be counted while computing the maximum period of detention.
26. The question as to the date from which the period of detention has to be counted was raised for the first time before this Court in Adam Kasam Bhaya's case (AIR 1981 SC 2005 : 1981 Cri LJ 1686). In that case the detenu was detained under COFEPOSA pursuant to order of detention dated May 7, 1979. The High Court of Gujarat quashed the order of detention. The State preferred an appeal to this Court and when it came up for hearing on September 15, 1981 a preliminary objection was raised on behalf of the detenu that, as the maximum period of detention permitted under Section 10 had expired, the appeal had become infructuous. Dealing that objection this Court held as under:
In our opinion, the submission has no force. In Section 10, both in the first, and the second part of the section, it has been expressly mentioned that the detention will be for a period of one year or two years, as the case maybe, from the date of detention, and not from the date of the order of detention. If the submission of learned counsel be accepted, two unintended results follow:
(1) a person against whom an order of detention is made under Section 3 of the Act can successfully abscond till the expiry of the period and altogether avoid detention; and (2) even if the period of detention is interrupted by the wrong judgment of a High Court, he gets the benefit of the Invalid order which he should not. The period of one or two years, as the case may be, as mentioned in Section 10 will run from the date of his actual detention, and not from the date of the order of detention. If he has served a part of the period of detention, he will have to serve out the balance. The preliminary objection is overruled.
A similar preliminary objection was raised in the case of Mohd. Ismail Jumma's case (AIR 1982 SC 683 : 1982 Cri LJ 421) and following the decision in Adam Kasam Bhaya it was overruled.
27. In Poonam Lata (AIR 1987 SC 1383 : 1987 Cri LJ 1130) a contention was raised that the period of parole cannot be added to the period of detention. The reasons put forward in support of this contention were: (1) as there is no provision authorising interruption of running of the period of detention, release on parole does not bring about any change in the situation; (2) preventive detention is not a sentence by way of punishment and, therefore, the concept of serving out which pertains to punitive jurisprudence cannot be imported into the realm of prevention (preventive) detention and (3) even though grant of parole to a detenu amounts to a provisional release from confinement; yet the detenu continues to be under restraint as he would still be subject to restrictions imposed on free and unfettered movement. Dealing with the first reason this Court observed:
Since in our view release on parole is a matter of judicial determination, apparently no provision as contained in the CrPC relating to the computation of the period of bail was thought necessary in the Act.
Dealing with the other two reasons this Court held as under:
The key to the interpretation of Section 10 of the Act is in the words 'may be detained.' The subsequent words 'from the date of detention' which follow the words 'maximum period of one year' merely define the starting point from which the maximum period of detention of one year is to be reckoned in a case not falling under Section 9. There is no Justifiable reason why the word 'detain' should not receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, Vol. 1, p. 531, the word 'detain' means "to keep in confinement or custody". Webster's Comprehensive Dictionary, International Edition at p. 349 gives the meaning as "to hold in custody." The purpose and object of Section 10 is to prescribe a maximum period for which a person against whom a detention order under the Act is made may be held in actual custody pursuant to the said order. It would not be violated if a person against whom an order of detention is passed is held in actual custody in jail for the period prescribed by the section. The period during which the detenu is on parole cannot be said to be a period during which he has been held in custody pursuant to the order of his detention, for in such a case he was not in actual custody. The order of detention prescribes the place where the detenu is to be detained. Parole brings him out of confinement from that place. Whatever may be the terms and conditions imposed for grant of parole, detention as contemplated by the Act is interrupted when release on parole is obtained. The position would be well met by the appropriate answer to the question "how long has the detenu been in actual custody pursuant to the order?" According to its plain construction, the purpose and object of Section 10 is to prescribe not only for the maximum period but also the method by which the period is to be computed. The computation has to commence from the date on which the detenu is taken into actual custody but If it is interrupted by an order of parole, the detention would not continue when parole operates and until the detenu is put back into custody. The running of the period recommences then and a total period of one year has to be counted by putting the different period of actual detention together. We see no force in Shri Jethmalani's submission that the period during which the detenu was on parole has to be taken into consideration in computing the maximum period of detention authorised by Section 10 of the Act.
27A. In Pushpa Devi (AIR 1987 SC 1748 : 1987 Cri LJ 1888) this Court reiterated the same view with some more elaboration. With respect to the first reason this Court observed:
It will not be out of place to point out here that in spite of the Criminal Procedure Code providing for release of the convicted offenders on probation of good conduct, it expressly provides, when it comes to a question of giving set off to a convicted person in the period of sentence, that only the actual pre-trial detention period should count for set off and not the period of bail even if bail had been granted subject to stringent conditions. In contract, insofar as preventive detentions under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, are concerned, the Act specifically lays down that a person against whom an order of detention has been passed shall not be released on bail or bail bond or otherwise (vide Section 12(6) of the Act) and that any revocation or modification of the order of detention can be made only by the Government in exercise of its powers under Section 11. Incidentally, it may be pointed out that by reason of Sub-section (6) of Section 12 of the Act placing an embargo on the grant of bail to a detenu there was no necessity for the legislature to make a provision similar to Sub-section (4) of Section 389 of the CrPC, 1973 (corresponding to Sub-section (3) of Section 426 of the Code) for excluding the period of bail from the term of detention period.
As regards the status of the detenu who is released on parole this Court observed as under:
Even if any conditions are imposed with a view to restrict the movements of the detenu while on parole, the observance of those conditions can never lead to an equation of the period of parole with the period of detention. One need not look far off to see the reason because the observance of the conditions of parole, wherever imposed, such as reporting daily or periodically before a designated authority, residing in a particular town or city, travelling within prescribed limits alone and not going beyond etc. will not prevent the detenu from moving and acting as a free agent during the rest of the time or within the circumscribed limits of travel and having full scope and opportunity to meet people of his choice and have dealings with them, to correspond with one and all and to have easy and effective communication with whomsoever he likes through telephone, telex etc. Due to the spectacular achievements in modern communication system, a detenu, contacts with all his relations, friends and confederates in any part of the country or even any part of the world and thereby pursue his unlawful activities if so inclined. It will, therefore, be futile to contend that the period of parole of a detenu has all the trippings of actual detention in prison and as such both the periods should find a natural merger and they stand denuded of their distinctive characteristics. Any view of the contrary would not only be opposed to realities but would defeat the very purpose of preventive detention and would also lead to making a mockery of the prevention (preventive) detention laws enacted by the center or the States.
With respect to the object and purpose of the preventive detention this Court observed that:
The entire scheme of preventive detention is based on the bounden duty of the State to safeguard the interests of the country and the welfare of the people from the canker of anti-national activities by antisocial elements affecting the maintenance of public order or the economic welfare of the country. Placing the interests of the nation above the individual liberty of the anti-social and dangerous elements who constitute a grave menace to society by their unlawful acts, the preventive detention laws have been made for effectively keeping out of circulation the detenue during a prescribed period by means of prevention (preventive) detention. The objective underlying preventive detention-cannot be achieved or fulfilled if the detenu is granted parole and brought out of detention.
28. In Poonam Lata case (AIR 1987 SC 1383: 1987 Cri LJ 1130) this Court referred to its two earlier orders passed in Harish Makhija v. State of U.P. (1983) 3 SCC 432 and Amritlal Channumal Jain v. State of Gujarat (in W.P. Nos. 1342-43, 1345-48, 1567/82 and 162/83). The order passed in Harish Makhija's case on 11-2-1985 was as under:
It is obvious that the period of parole cannot be counted towards the period of detention. The petitioner should surrender and serve out remaining period of 141 days' detention.
A three-Judge Bench thereafter on 1-7-1985 in Amritlal Channurnal Jain case directed that.-
In so far as these cases are concerned, the period during which the petitioners were on parole shall be taken into account while calculating the total period of detention. The order of detention was passed more than two and half years ago.
29. Rejecting the contention that the ratio laid down by the larger Bench in Amritlal Channumal Jain case has to prevail and must be taken as binding, this Court observed as under:
We find it difficult from the observations made by a three-Judge Bench in Amritlal Channumal Jain's case to infer a direction by this Court that a period of parole shall not be added to the period of detention. The words used 'shall be taken into account' are susceptible of an interpretation to the contrary. We find that an order made by a Bench of two Judges of this Court in Harish Makhija case 1987 (3) SCC 432 (supra) unequivocally laid down that the period of parole cannot be counted towards the period of detention. This accords with the view taken by this Court in a Bench of two-Judges in State of Gujarat v. Adam Kasam Bhaya (1981) 4 SCC 216 : (AIR1981 SC 2005 : 1981 Cri L J 1686) and State of Gujarat v. Ismail Juma (1981) 4 SCC 609. In view of these authorities which appear to be in consonance with the object and purpose of the Act and the statutory provisions and also having regard to the fact that the direction made in Amritlal Channumal Jain case is capable of another construction as well, we do not find Shri Jethmalani's contention on this score as acceptable.
With respect to the two orders we may observe that no reasons were given in support of the view taken in those cases. Therefore, it is not necessary to go into the controversy whether this Court laid down any law on the point in Harish Makhija case (1987 (3) SCC 432) or that the order passed in the case of Amritlal Channumal Jain case was binding and ought to have been followed by this Court while deriding Poonam Lata case (AIR 1987 SC 1383 : 1987 Cri L J 1130).
30. We may also state that in Adam Kasam Bhaya case (AIR1981 SC 2005 : 1981 Cri L J 1686) the only question that had arisen consideration was whether the maximum period of detention starts running from the date of the order of detention or the date of actual detention. How the maximum period is to be counted when it is interrupted by a Court's invalid order or by an order of parole was not the question raised or decided in that case. The observation that "If he has served a part of period of detention he will have to serve out the balance" was made in that context only and it cannot be taken as laying down that if the prescribed period of detention is thus interrupted then the detenu has to serve out the balance period of detention.
Interpretation placed on the Rules of 1959 by Umesh Kumar Singh, supra, not only denies to the executive its legitimate power to release prisoner on parole but also leads to unjust results by depriving a sizable section of prisoners of the benefit of parole and therefore would be highly discriminatory qua them because it seeks to treat equals unequally. Early disposal of appeal filed by some and indecision of appeals filed by others is merely a fortuitous circumstance. Unfortunately, appeals filed by the prisoners against order of their conviction are not decided for number of years but this delay can certainly be not attributed to prisoners. How possibly then they can be deprived of benefit of parole. Besides, one of the major objects of regular and periodical parole after completion of 1/4th sentence in the scheme of the Rules of 1959 is to enable the criminals to join mainstream of the society as part of reformatory sentencing policy of the State so that immediately after their release from jail, they may start new life as citizens of the country.
A Constitution Bench of the Supreme Court in Union of Inida Vs. Raghubir Singh (1989) 2 SCC 754, in Para 28 thereof held that it "is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division bench is considered binding on a Division Bench of the same or lesser number of the Judges. This principle has bene followed in India by several generations of Judges."
The Supreme Court in Safiya Bee Vs. Mohd. Vajahath Hussain alias Fasi (2011) 2 SCC 94, held that even assuming that earlier decision of a coordinate bench of equal strength did not operate as res judicata, if the subsequent bench of the equal strength did not agree with the view taken by that coordinate bench regarding interpretation of relevant provision judicial discipline and practice required them to refer the issue to a larger Bench. In Para 27 of the judgment, the Supreme Court held as under:-
"However, even assuming that the decision in W.P. No. 35561 of 1998 did not operate as res judicata, we are constrained to observe that even if the learned Judges who decided W.P. No. 304 of 2001 did not agree with the view taken by a Co-ordinate Bench of equal strength in the earlier W.P. No. 35561 of 1998 regarding the interpretation of Section 2(c) of the Act and its application to the petition schedule property, judicial discipline and practice required them to refer the issue to a larger Bench. The learned Judges were not right in over-ruling the statement of the law by a Co-ordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law by a Bench is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well accepted and desirable practice is that the later Bench would refer the case to a larger Bench."
The Supreme Court in Sundarjas Kanyalal Bhathija and Others v. The Collector, Thane, Maharashtra and Others AIR 1991 SC 1893, while dealing with similar issue, has expressed that "one must remember that pursuit of the law, however, glamorous it is, has its own limitation on the Bench. In a multi-Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure.
In our considered view, therefore, if at all the Division Bench in Umesh Kumar Singh, supra, had to take a different view than the one expressed by two Division Benches of this court in Bhanwar Lal Godara and Gani Khan, the appropriate course for that was to refer the matter to a Larger Bench.
In the light of the view that we have taken of the matter, we are of the considered opinion that earlier Division Bench judgments of this Court in Bhanwar Lal Godara and Gani Khan continues to hold filed and have binding effect according to which a prisoner is entitled to parole even when appeal filed by him against the order of his conviction and sentence is pending, till those judgments are not reversed/overruled by decision of a Larger Bench.
In order, however, to give a quietus to the controversy, it would still be appropriate to seek an authoritative pronouncement from Larger Bench. We, while holding so, are therefore persuaded to refer the following question for consideration by Larger Bench.
Whether a prisoner, whose appeal against order of his conviction is pending, would be entitled to benefit of parole under the Rules of 1959?
Let the matter be placed before Hon'ble the Chief Justice for needful.
(Veerendra Singh Siradhana) J. (Mohammad Rafiq) J. //Jaiman//
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW