Gujarat High Court
Usman Mohmed Anis Agarbattiwala vs State Of Gujarat on 21 July, 2023
NEUTRAL CITATION
R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5471 of 2023
With
R/SPECIAL CRIMINAL APPLICATION NO. 6050 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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USMAN MOHMED ANIS AGARBATTIWALA
Versus
STATE OF GUJARAT
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Appearance:
MR DIPAK H SINDHI(5710) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR MITESH AMIN PUBLIC PROSECUTOR with MS MONALI BHATT ADDL.
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 21/07/2023
ORAL JUDGMENT
RULE. Learned APP waives service of notice of rule on behalf of respondent- State.
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1. This application is filed by the convict under Article 226 of the Constitution of India read with Article 14,19 of the Constitution of India seeking directions against the jail authorities to release the applicant on parole leave for a period of 30 days for the purpose of enabling the applicant to prefer appeal before this Court against their conviction. It is also prayed on the ground to meet with their family, to assist their family as the applicants are in jail for more than 14 years and have undergone continuous incarceration since the last 14 years without any leave. The prayer is also made to quash and set aside the communication dated 03.04.2023, which is an order passed by the administrative officer IGP prison requesting parole leave to the applicant.
2. The brief facts as averred in the petition by the applicant is that:
2.1 On 26.06.2008, incidents of serial bomb blast and bomb plantation had occurred at different places in Ahmedabad city, Kalol District Gandhinagar and at Surat. On 26.07.2008, the FIR came to be registered with the Shahibaugh Police Station Ahmedabad vide ICR No.236 of 2008 and other 19 FIRs were Page 2 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined registered with different Police Stations of Ahmedabad followed by one FIR at Kalol and 15 different FIRs in different Police Stations at District Surat.
2.2 It is contended that the High Court on its administrative side had issued notification no. A/1244 of 2008 dated 01.09.2008 appointing the City Sessions Court, Ahmedabad as special Court to conduct the trial of the aforesaid cases. The present applicant was arraigned as one of the accused in Sessions Case No. 38 of 2009. The applicant was tried for the offenses punishable under Section 302 read with Sections 307,326,435,436,427,465,468,471, 120B,122A , 124A and 153 of IPC as well as various provisions of Unlawful Activity Prevention Act (in short referred 'UAPA') as well as Explosive Substandard Act and Prevention of damage to Public Properties Act.
2.3 At the end of the trial, the applicant was convicted under Section 302 read with other offenses of IPC as well as other penal laws and was awarded punishment of death sentence vide common judgment and order of conviction dated 08.02.2022. Page 3 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023
NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined 2.4 The applicant has continued to be in custody since his date of arrest and till date has undergone a sentence of more than 14 years. The applicant has not filed any appeal against the said order of conviction and death sentence. The Criminal Confirmation Case no. 02 of 2022, has been registered before this Court, which is admitted by this Court by the Hon'ble Division Bench by the order dated 28.07.2022, wherein the present petitioners have been joined as respondent no.2 and 7 respectively.
2.5 The applicants have now decided to challenge the aforesaid order of conviction by filing appeal before this Court. The applicant namely- Usman Mohmed Anis Agarbattiwala, is desirous to meet his family and to assist their family financially and having undergone incarceration period of more than 14 years, having not enjoyed leave till date have approached the authority seeking parole leave before the office of IGP Prison. 2.6 The respondent authority had rejected such an application by citing five reasons. The reference is made to the negative opinion of Vadodara Police Station Zone-III dated 09.03.2023. The Page 4 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined authority has taken into consideration the prohibition in terms of Section 268(1) of the Criminal Procedure Code. The authority has also taken into consideration the involvement of the applicant in serious offense of the bomb blast case. Apart from the present offense the authority has also noticed involvement of the applicants in two cases, one related to Jailbreaking. Having considered the aforesaid facts, the authorities have rejected the prayer of parole as the same does not fall in the guidelines prescribed. Hence, this petition under Article 226 of the Constitution of India.
3. Learned Public Prosecutor, Mr. Mitesh Amin has appeared on behalf of respondent-authorities and is assisted by learned Additional Public Prosecutor Ms. Monali Bhatt. 3.1 The jail remarks have been placed on record. Learned Public Prosecutor has at the outset raised preliminary objection to the maintainability of this petition seeking parole leave, more particularly, when the confirmation case is pending consideration before the Hon'ble Division Bench of this Court. He has submitted that in all 38 persons have been awarded death Page 5 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined sentences by the learned Sessions Judge in Sessions Case No. 38 of 2009.
3.2 He has relied upon Section 368 of Code of Criminal Procedure, which pertains to power of High Court to confirm sentence, annul sentence or commute the sentence. By referring to the aforesaid provision, he has submitted that in case of death sentence, the learned Session Judge is under obligation to get a nod from the High Court. The details of the case status of the aforesaid Criminal Confirmation Case No. 2 of 2022 has been placed on record. Learned Public Prosecutor has submitted that the Confirmation case is pending since 04.03.2022 and is admitted by the co-ordinate Bench on 28.07.2022. He has invited attention of this Court to the fact that notice was issued upon the respondents-accused and Rule was duly served upon the respondents- accused who were represented by the learned advocates who had appeared on their behalf. The present petitioners who were joined as respondent no.2 and 7 therein, though served with notice, had chosen not to engage the lawyer. 3.3 He further submitted that even if they need representation Page 6 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined by any advocate the legal aid can always be extended as per the scheme. He has further invited attention of this Court to the fact that the other co-accused of the aforesaid sessions Case were convicted with life imprisonment. They had approached this Court by filing an appeal against the said order of conviction which is registered as Criminal Appeal No. 1917 of 2022. He has further submitted that another criminal Appeal being Criminal Appeal No. 1710 of 2022 has been filed by few of the accused challenging the aforesaid order of conviction. However, for the reasons best known to the present petitioners no appeal has been filed till date. He further submitted that the aforesaid appeals have been directed by the Hon'ble Division Bench to be heard with the pending Criminal Confirmation Case No. 2 of 2022.
3.4 Learned Public Prosecutor Mr. Amin had emphasized on the fact that the order of conviction was passed on 18.02.2022 and thereafter Criminal Confirmation Case came to be registered in the month of March 2022, wherein the present respondents were duly served with notice and ultimately, the Criminal Confirmation Case came to be admitted on 20.07.2022 and thereafter Page 7 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined substantial period has passed but the applicants have chosen not to file any appeal before this Court. He submitted that in fact the period of limitation to challenge such an order of conviction has expired. He therefore submitted that the ground raised in the present petition seeking parole leave is not genuine and in fact the petitioner never intended to challenge the sentence by filing appeal before this Court.
3.5 Mr. Amin, learned Public Prosecutor, has invited the attention of this Court to Chapter XXVIII of the Criminal Procedure Code, which deals with the submission of death sentences for confirmation. He submitted that the said chapter deals with the confirmation of the death sentence more particularly, section 368 which empowers the appellate Court to confirm the sentence or pass any other sentence warranted by law or even annule the conviction of the accused of any offense which the Court of Session might have convicted him or even order a new trial on an amended charge or may also pass the order of acquittal of the accused person. While referring to Section 389 of the Code, he submitted that an efficient remedy rather than sole remedy is to apply for suspension of sentence pending the Page 8 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined appeal on release of the appellant on bail. He submitted that the intention of the legislation is apparent from the fact that similar provision is not covered within chapter XXVIII. He therefore submitted that if the present petitioners are to be considered for release in a pending confirmation case then it has to be within the purview of jurisdiction of confirmation case. 3.6 Reliance was also placed on the proviso to Section 368 of the Criminal Procedure Code, by referring to the fact that the period of limitation has been expired by filing an appeal. Mr. Amin submitted that even assuming the fact that no appeal is filed before this Court, then also it would be of the bounded duty of the Division Bench to examine such prayer of release pending the confirmation case.
3.7 In light of the aforesaid legal set up, Mr. Amin has further invited attention of this Court to the Chapter XXXII of the Code of Criminal Procedure which relates to the subject of execution, suspension and remission and permutation of sentences. He has further invited attention of this Court to the chapters wherein under the head of death sentences the relevant portion of provisions appear in the form of Section 413 to Section 416. Page 9 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023
NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined Section 413 deals with execution of order passed under the Criminal Procedure Code. Whereas,Section 414 provides for execution of sentences passed by the High Court. As against that Mr. Amin has submitted that there is further sub-chapter (e) which covers subject of suspension, remission and commutation of sentences. He has referred to Section 432 of Criminal Procedure Code, falling under sub-chapter (e), which provides for power to suspend or remit sentences. By referring to the aforesaid scheme appearing under Chapter XXXII he has submitted that one can gather the intention of legislature to place the aforesaid provisions under different sub-chapter which goes to indicate that the power to suspend sentence as appearing in section 432 is not permissible insofar as the subject which appears under sub-chapter (A) which covers Sections 413 to 416, which pertains to death sentences.
3.8 Mr. Amin, had further submitted that, while dealing with the decision of the Hon'ble Constitutional Bench of Supreme Court in the case of Sunil Fulchand Shah Vs. Union of India and ors reported in 2001 (3) SCC 409, this was a case arising out of COFEPOSA Act, where the question which had fall for Page 10 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined consideration before the Hon'ble Constitutional Bench was whether the period of detention is a fixed period starting from the date specified in the detention order and ending with expiry of that period or that period is extended to any parole granted to the detainee. He had submitted that the question which had fall for consideration before the Hon'ble Constitutional Bench was that whether the leave period, i.e the period of parole leave is to be counted towards the total period of detention to which the conclusion as reflected in para-33 as answered by the Constitutional Bench has held that the parole does not interrupt the period of detention and thus that period needs to be counted towards the total period of detention. Unless the terms for grant of parole, rules or instructions prescribe or otherwise. He further submitted that the aforesaid decision of Hon'ble Constitutional Bench will have no applicability to the facts of the case, more particularly, when the controversy revolves around the availing of parole leave pending the criminal confirmation case.
3.9 Mr. Amin has relied upon the decision of Hon'ble Full Bench of this Court in the case of Latif Chotumiya Shaikh Vs. State of Page 11 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined Gujarat and Ors reported in 2000 (3) GLH 601.He has invited attention to the issued referred to the Larger Bench led by the Hon'ble The Chief Justice and has submitted that one of the issue which had fall for consideration before the Hon'ble Full Bench was as to whether Court can direct the release of a convict on parole when an appeal arising out of the judgment of conviction and sentence is pending. While answering the aforesaid issue the Hon'ble Larger Bench had held that a convict undergoing sentence imposed by the competent court cannot be released on parole leave or furlough leave by the High Court when an appeal arising out of the said judgment and conviction of sentence is pending. He therefore submitted that though under the nomenclature of confirmation case pending in the present case, this Court may not exercise its writ jurisdiction and release the convict on parole leave.
3.10 He had further highlighted the merits of the case, he has submitted that in the case of petitioner Usman Shaikh, the said petitioner had initially approached this Court by filing a temporary bail application in the pending Confirmation Case. Such application was sought to be withdrawn and was disposed Page 12 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined of as withdrawn. He emphasized on the fact that even in the case of other co-accused he had an occasion to oppose such a temporary bail application. He further submitted that the applicants cannot pray for grant of parole in case of other co- accused where the confirmation case is pending for consideration.
3.11 Mr. Amin has also relied upon the decision of the Apex Court in the case of Asfaq Vs. State of Rajasthan reported (2017) 15 SCC 55. By inviting attention of this Court to the facts of the case, he has submitted that the petitioner therein was convicted in the serial bomb-blast which took place in the trains at the behest of certain miscreants, on the first anniversary of babri masjid demolition. The petitioner was facing serious allegations with regard to supply of explosive materials. He further submitted that his conviction was upheld and was confirmed by the Hon'ble Supreme Court. Though he was awarded life imprisonment , his conviction and sentence of the said applicant in appeal upto Hon'ble Supreme Court had attained finality. The applicant had applied for parole before the advisory committee which came to be rejected by the committee on the ground that Page 13 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined they had no jurisdiction to entertain parole for TADA prisoners. The aforesaid decision of the advisory committee was challenged by the said applicant in the form of writ petition before the High Court of Rajasthan. The petition was disposed of initially with direction to the advisory committee to examine the same in accordance with law. Ultimately, the matter went up to the Supreme Court. The contention was raised by the said applicant before the Hon'ble Apex Court that merely because the applicant was convicted of an offense which was of serious or heinous in nature, would not be a ground to reject the plea of parole out rightly. The Hon'ble Court having given serious consideration to the submissions made by the Counsel, at one stage held that there cannot be any presumption that a person who is convicted of serious or heinous crime is to be ipso facto treated as a hardened criminal. The Hon'ble Apex Court had taken into consideration the factors which contributed to the criminal behavior and having noticed the reports submitted by the authorities, the Court held that the authorities have not taken into account relevant considerations while rejecting the request of parole. However, the Court upon appreciation of material formed an opinion that this was not an effective case for grant of Page 14 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined parole to the said applicant. The applicant was ultimately permitted to renew his request after some time. By referring to the aforesaid facts Mr. Amin submitted that so far as present case is concerned this is also the case of serial bomb blast which has taken place in different parts of the cities of Ahmedabad, Gandhinagar and Surat in the State of Gujarat. At the end of the trial, the petitioners are found to be guilty of commission of the aforesaid offense and are awarded the death sentence. He has submitted that around 70 persons have lost their lives and more than 250 persons have been injured. He has therefore submitted that looking at seriousness and the gravity of offence in which the petitioner have been convicted, the Court may not exercise its writ powers and the petitioners may be relegated to the jurisdiction of the Hon'ble Division Bench who is seized of Criminal Confirmation Case.
3.12 Learned Public Prosecutor Mr. Amin while dealing with the judgment of S.Santh (supra), the Full Bench decision of the Bombay High Court, submitted that it deals with Section 432 of the Code. He has submitted that in view of Section 432 of the Code, even though the appeal against conviction is pending Page 15 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined consideration before the High Court, still the authorities have jurisdiction to entertain the application for parole of the convict. The Division Bench of the High Court of Bombay in the case of Jayant Virappa Shetty at one stage had held that the Prisons Rules would not apply to the grant of parole to a convicted person whose appeal is pending before the Appellate Court. When the Appellate Court is seized of the matter, then the Appellate Court is solely empowered under Section 389 of the Code to pass appropriate order. One of the questions which arose for consideration was to whether the view taken by the Court in the Jayant Shetty case was correct or requires re- consideration.
3.13 Mr. Amin submitted that as against the view taken by the Full Bench of the Bombay High Court, the full Bench of this Court in the case of Latif Chotumiya ( supra) has taken view that once the appeal is pending against the order of conviction, the judicial commity demands that the matter should be examined by the Appellate Court which is seized of the appeal against the order of conviction or confirmation case. By applying analogy of the aforesaid principle laid down by the Hon'ble Full bench of this Page 16 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined Court, he submitted that in the facts of the case, though appeal is not filed against the order of conviction considering the fact that the Criminal Confirmation Case is pending before the Hon'ble Division Bench, this Court may not entertain the present petition seeking parole leave.
3.14 Mr. Amin had invited attention of this Court to the manner in which the present petition has been filed and the pleadings have been made in a manner without any supporting affidavit of the convict. He had demonstrated the similarity in the pleadings of both the applications and has submitted that when the convict is before this Court seeking parole leave in a matter involving death sentence, great care ought to have been taken. He submitted that this itself goes to indicate that the applicants are not serious about filing any appeal before this Court. 3.15 Mr. Amin had placed reliance upon the report submitted by the investigating agency to demonstrate that two second offenses are registered against the petitioners and these material facts have been suppressed by the learned advocate for the petitioners. Out of two second cases, one case pertains to Page 17 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined Jail breaking incident in the year 2013 wherein the applicants were found to be involved in digging up jail. Upon conclusion of arguments, this Court had called upon learned advocates for the respective parties to place on record details of the status of such pending cases. At one stage, Mr. Sindhi learned advocate on record under oral instructions had submitted that the applicants are enlarged on bail in jail breaking incident and the matters are at large pending before the trial court where trial has yet not started. Objecting vehemently to the aforesaid submission of learned advocate for petitioners, Mr. Amin learned Public prosecutor had submitted that as per report of the investigating agency, in the jailbreaking case, the applicants are not enlarged on bail and submitted to this Court to take serious notice of such incorrect submissions of learned advocate. In fact, according to Mr. Amin such details ought to have been placed on record of the present petitions. He therefore urged this court to outrightly dismiss these petitions for suppression of material facts. Mr. Sindhi, later on corrected his aforesaid submission and stated that since the convicts are inside jail, as advocate he has to rely upon instructions of the family members who in absence of proper legal assistance are unaware about correct facts. He has Page 18 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined confirmed the fact about no bail being granted and apologized for such submission.
3.16 Mr. Amin has invited the attention of this Court to an order dated 14.06.2023 / 16.06.2023 passed by this Court in SCRA no. 5551 of 2023, order dated 08.07.2022 / 20.07.2022 in SCRA no. 6756 of 2022 , order dated 07.07.2022 / 09.07.2022 in SCRA no. 7035 of 2022, order dated 08.07.2022 / 20.07.2022 in SCRA no. 7044 of 2022 and order dated 20.09.2022 / 3.10.2022 in SCRA no. 9522 of 2022. By referring to aforesaid orders, learned Public Prosecutor submitted that in co-convicts the State had moved necessary application seeking recall of the orders of grant of parole however, having noticed that the order was implemented, the same were disposed of as infructous.
3.17 Mr. Amin had fairly submitted before this Court that incase of other co-accused the State had adopted a human approach where the convicts are permitted to meet the family members inside jail for sufficient hours. He submitted that in the case of the applicant also, similar treatment can be extended. He therefore urged this Court, not to entertain the present Page 19 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined application.
4. On the other hand, learned advocate Mr. Deepak Sindhi for the petitioner has invited the attention of this Court to Section 368 of Code of Criminal Procedure. He has referred to the proviso of Section 368 and has submitted that there cannot be confirmation till the period of appeal has expired. According to him, it is the only bar under section 368 of Criminal Procedure Code. Contradicting the submission of a learned Public Prosecutor, he has submitted that the only remedy which appears in the Code of Criminal Procedure with regard to suspension of sentence pending the appeal is in the form of Section 389 of the Code. Mr. Sindhi submitted that the aforesaid provision would be applicable only in the case where the appeal is filed by the convicted person against the order of conviction and sentence imposed. Mr. Sindhi has submitted that though the confirmation case is pending the plain reading of the aforesaid provision, empowers the Appellate Court to either annul confirm or modify the sentence. The reading of proviso appearing in Section 368 goes to suggest that till the period of appeal expires, there cannot be confirmation of the death sentence and once the Page 20 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined appeal is filed then only the confirmation case would be subject to the appeal filed. He further submitted by contradicting the submissions of learned public Prosecutor, that the grant of temporary bail pending the confirmation case in a way presupposes the existence of appeal. At this stage, he invited the attention of this Court to Section 389 (1) of the Code of Criminal Procedure, which provides power of the Appellate Court to suspend the sentence, pending the appeal and to release the accused on bail. By referring to the aforesaid provision, he submitted that pending any appeal in the aforesaid section clearly indicates the fact that such powers are available with the Appellate Court, only pending the appeal filed by the convicted person. In the present case, he submitted that the petitioner seeking parole leave has been filed with one of the grounds raised to file an appeal. He further submitted that appeal has to be filed by the convicted person and the confirmation case cannot be treated as an appeal by the convict. He further submitted that the only section which expresses the power of suspension of sentence is in the form of Section 389 of CrPC. He fairly considered the fact that considering the nature of offense involved, the petitioners are not entitled for furlough leave as Page 21 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined per Rules. In such circumstances, the only remedy which is available to the petitioner is by approaching this Court, by filing a petition under Article 226 of the Constitution of India, with a prayer to release them on parole leave. He further submitted that grant of parole leave is governed by the Prison Rules. He further submitted that both the applicants have approached the authority with a prayer to grant parole leave. However, the same has not been accepted for the reasons mentioned in the impugned order. He has therefore, approached this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India with a prayer to release them on parole leave as well as have also challenged the aforesaid decision of respondent-authorities. On merits of the case, Mr. Sindhi has submitted that petitioners have already undergone incarceration of a period of more than 15 years. He has urged this Court, except for one or two occasions which involved the release of the petitioner to visit graveyard with police japta, the petitioners have never been enlarged during the period of incarceration. While dealing with the submissions of learned Public Prosecutor, with regard to the legislative intention including the power of suspension or remission of sentence incase of death sentence as Page 22 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined relied upon by referring to Chapter XXXII is concerned, Mr. Sindhi submitted that Section 413 of Chapter XXXII provides for execution of order passed under Section 368 of CrPC. He further submitted that the aforesaid Section would be applicable at the stage when the High Court, in a confirmation of sentence of death, has passed an order and the Court of Sessions is in receipt of the order of confirmation or other order of the High Court. He thus submitted that the Sessions Judge would execute the death sentence or any other as confirmed or as directed by the Appellate Court. However, in the facts of the case, the aforesaid stage has not arisen and the same would not be applicable. By referring to Section 389 of the Code, he reiterated that the same would not be applicable as no appeal is filed till date by the convicted person. He therefore submitted that the appropriate remedy available to the petitioners is in the form of present petition under Article 226 of the Constitution of India. Mr. Sindhi has further submitted that this Court may consider the fact that though much emphasis has been made on the fact that the applicants have not filed the appeal till date, however, the delay in approaching this Court in filing appeal against the order of conviction may not be in benefit of the petitioners. In fact, he Page 23 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined fairly submitted that considering the seriousness of the offense, the Appellate Court has always taken liberal approach in condoning delay. He further submitted that the presence of the applicant is required for arrangement of funds to engage competent lawyer. Considering the fact that he is facing a death sentence, he needs to be properly represented by a competent lawyer. Additionally, more than 14 years of incarceration may also be taken into consideration as a relevant factor for granting parole leave. He has submitted that on the earlier occasion under the wrong advice, one of the applicants had approached the Hon'ble Division Bench by filing a temporary bail application and having realized the mistake he has sought permission of the Hon'ble Court for withdrawal of such application. And thereafter, the petitioners have approached this Court by filing a present petition. The attention of this Court was invited, in the case of Usman Shaikh, prayer made challenging the order of the authority refusing grant of parole leave. So far as the submission of learned Public Prosecutor with regard to the manner in which the petition has been presented before this Court, he submitted that specific prayer has been made with regard to dispensation of the affidavit. Considering the fact that the applicant has been Page 24 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined languishing in jail for the last many years. He submitted that the vakalatnama has been obtained through jail which has been signed by the convict before the jailor. He therefore urged this Court considering the prayer for dispensation of affidavit. While dealing with the submission of learned Public Prosecutor, with regard to the ratio laid down by the Full Bench of this Court is concerned, he invited attention of this Court to para.33, and submitted that, it was a case where the Hon'ble Full Bench has observed that when the appeal is not filed the only remedy available to the convict is to approach by filing an application seeking parole leave. While dealing with the submission of learned Public Prosecutor, with regard to the judgment of Apex Court in Asfaq (supra) is concerned, he submitted that it was an overall appreciation of reports which were placed for consideration. The Hon'ble Court had ultimately rejected the request of parole made by the same applicant. He submitted that the Hon'ble Court had in fact granted liberty to the applicant to renew his request for parole. Under such circumstances, he urged this Court to consider the prayer for release of petitioner on parole leave. He has assured this Court that he will abide by any strict conditions which may be imposed by this Court. Page 25 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023
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5. Scope of writ Jurisdiction :
Before examining the issues raised before this Court, it would be appropriate to revisit the broad principles as regards the exercise of writ jurisdiction by the courts. The Supreme Court in its recent decision in Magadh Sugar & Energy Ltd. Vs. State of Bihar & ors. , reported in 2021 SCC Online 801, summarized the principles of law crystallized in earlier decisions, as under:
"(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
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(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
On an analysis of the above principles as well as the principle enunciated in Radha Krishan Industries Vs. State of Himachal Pradesh, reported in (2021) 6 SCC 771, the principle of law emerges is that even in cases where there exists an alternative statutory remedy, if the High Court is of the view that the nature of controversy objectively requires it to exercise its jurisdiction, Page 27 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined the exercise of jurisdiction by the High Court should not be interfered with.
6. Writ Jurisdiction : Enforcement of Article 21 of the Constitution.
At the outset, the court finds on various occasions the High Courts as well as Hon'ble Supreme Court has raised to the occasion and recognized the rights of the prisoners even during the period of incarceration by holding that while incarcerated, inmates are still entitled to all of their fundamental rights. Although the Indian Constitution does not openly and explicitly guarantee prisoners' rights, Articles 14, 19, and 21 do so inferentially. Moreover, the Prisons Act of 1894 provides measures for the welfare and safety of prisoners. The attention of this Court is invited to the offenses under the provisions of UAPA, for which applicants are convicted and awarded death penalty. Much emphasis is made on the fact that the applicants are engaged in serious activity of terrorism which has taken away the lives of innocent citizens and therefore deserves no mercy. The grounds raised of filing an appeal is an eye wash as they are Page 28 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined not serious about, since the prescribed period of limitation has already expired.
6.1 In the case of K. Najeeb (2021), the convict was facing charges under UAPA Act, the Hon'ble Kerala High Court granted bail considering his long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The Court cited reasons traceable to Article 21 without addressing the statutory embargo created by Section 43-D(5). The Union of India being aggrieved went into appeal before the Hon'ble Supreme Court. The Supreme Court held that the provision does not 'oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. In doing so, the Bench carved out some relief from the stringent reading of the bail provision in the Watali judgment, but did not overrule it. ( Union of India vs. K. Najeeb reported in (2021) 3 SCC 431 ). 6.2 In Shaheen Welfare Association Vs. Union of India ( reported in (1996) 2 SCC 616 , the Supreme court laid down that gross delay in disposal of such cases would justify the invocation of Article 21 and the consequential necessity to release the undertrial on bail. In that case, TADA's Section 20(8) was Page 29 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined considered for granting bail. It was held that stringent provisions in Section 20(8) can be justified looking at the nature of the crime on the presumption that the trial of the accused will take place without undue delay.
6.3 In the case of Angela Harish Sontakke vs. State of Maharashtra ( reported in (2021) 3 SCC 323 ), the Supreme Court granted bail to the accused, notwithstanding section 43- D(5) of UAPA. The Supreme Court followed this precedent in Sagar Tatyaram Gorkhe v State of Maharashtra ( SLP no. 6888 of 2015) wherein the accused had spent four years in jail, and there were over 147 witnesses still unexamined. Having noticed the facts of the aforesaid case, the Hon'ble Bench in the case of K. Najeeb observed that "the present case is more egregious than those two above-cited instances".
In light of the aforesaid cases related to offenses under UAPA, the Hon'ble Courts have enlarged the accused pending the trial on bail though having noticed the strict provisions incorporated under the Act. Whereas, in the present case, the applicants having been convicted are required to be considered for parole leave for limited period without any suspension of sentence, which in the opinion of the Court requires liberal approach Page 30 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined compared to one where accused have been considered on bail having undergone for custody for substantial period noticing trial may be delayed.
7. Release on Parole : Interference in jurisdiction of High Court under section 389 of the Code in Confirmation case. The State has placed on record the details in the form of report, which go to suggest that the present applicants are found involved in an incident of jailbreaking during their period of judicial custody pending the trial. It has emerged on record that the convicts are not granted bail in the aforesaid matters. The second offense is also registered against the accused- applicants, wherein the matter is at large subjudice before the learned Sessions Judge and the applicants have failed to secure bail in the said second offense as well. Thus, it is argued by the State that in absence of any application for temporary bail pending the trial in the second offense, even if the present application for parole is granted the applicant may not be released pending the trial in the second offense. Also, the conduct of applicants shows their tendency to flee away from criminal proceedings to avoid execution of death sentences. At the same time, noticing their Page 31 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined involvement in an act which had led to a situation where public tranquility at large was affected, this Court is called upon to exercise writ powers mainly on the ground of filing of appeal and to meet their families. The Court is called upon to exercise such powers at the penultimate stage where order of conviction with death penalty has been passed and appeal is yet not filed. The Issues which falls for consideration, in light of the submission , are :
1. Whether a petition under Article 226 of the Constitution of India seeking grant of parole can be entertained, when the appellate court is seized of the confirmation case in death penalty sentence under section 368 of the Code of Criminal Procedure?
2. The core argument advanced by the State is that the proper course of remedy available to the convict is to seek temporary bail, when the appellate court is examining the confirmation case.
7.1 The first question which follows is whether powers conferred on Appellate court under section 389 of the Code to grant Page 32 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined temporary bail, takes away the right of convict to apply for parole. There is no expressive provision in the Code which prohibits exercise of powers to grant parole pending the appeal or confirmation case. The plain reading of section 389 of the code indicates that the Appellate Court alone can exercise the powers conferred by sub section (1) of this section. Section 389(1) and (2) of Cr.P.C. deals with a situation where a convicted person applies for bail from appellate court after filing a criminal appeal against order of conviction. Whereas section 389 (3) deals with situations where the trial court itself can grant bail to the convicted accused enabling him to prefer an appeal. In absence of appeal by the convicted person, the powers cannot be exercised by the appellate court, because the sub- section (1) clearly reads "pending any appeal by a convicted person" the execution of sentence may be suspended. Indisputably, the appeal is not filed by the present applicants convicts.
7.2 This leads to the second question as to whether registration of confirmation cases under section 368 of the Code, can be treated as appeal at the instance of the accused so as to invoke section 389 of the Code ?. The nature of proceedings are Page 33 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined appellate in nature. The reading of section 368 indicates that in any case submitted to High Court under section 366, the High Court can confirm the sentence, or pass any other sentence warranted by law, or may annul conviction, and convict the accused of any offense or order a new trial or may acquit the accused. In a way, an accused who has been sentenced to death and reference under section 366 read with section 368 of the CRPC is pending in the High Court, can the convict file an application under section 389 of the Code, for suspension of sentence and grant of bail.?
7.3 It would be profitable to consider the relevant observations of the Hon'ble Supreme Court in the case of State of Maharashtra vs. Sindhi alias Raman reported in AIR 1975 SC 1665 wherein the Hon'ble Court held that so far as death sentence convict is concerned, the termination of trial does not conclude the proceedings with the conviction. The reading of plain language of proviso to section 368 of the Code clearly suggests that execution of death penalty sentence is executable only at the stage once the High Court grants its nod to the sentence of death penalty.
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NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined 7.4 It is further evident that chapter XXVIII of the Code regarding submission of death sentence, does not take away the right to file appeal under Chapter XXIX as well as the right to seek suspension of sentence in terms of section 389 of the Code. Even otherwise, there is no legal bar under section 389 of the code to not to release a convict of death sentence. On the contrary, the "order appealed against" appearing in section 389 is significant. Thus, where the appeal against conviction of death sentence is filed by the convict, the Appellate court can certainly examine the case for bail under section 389 of the Code. Generally, where the appeal is not filed, there cannot be an application for suspension of sentence under section 389 of the Code. However, if one looks at language of the section 368 of the Code, the appellate court being seized of the matter of the confirmation case, the execution of the death sentence is under suspension pending the confirmation case.
7.5 Whereas, in an application for suspension of sentence under section 389 of the code , the appellate court delves into the merits of the case and after forming prima facie opinion, as Page 35 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined interim measure, passes appropriate order of suspension of execution of sentence which may include even stay of the order of conviction appealed against. The jurisdiction conferred under section 389 of the Code operates on broad spectrum as it has bearance not only on the conviction but its future course. In the case of Ravikant S. Patil vs. Sarvabhouma Bagali, reported in (2007)1 SCC 673 has held that :
" It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying that consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction."
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NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined This further leads to the issue whether grant of parole would amount to interference of the jurisdiction of the Appellate court.
7.6. As discussed earlier, the suspension of execution of the death penalty viz. Suspension of sentence is regulated by the pending confirmation case under section 368 of the code, in absence of appeal along with an application under section 389 of the Code. Whereas in absence of any appeal filed by the convict, the benefit of suspension of conviction to be more precise, the suspension of order is not available to convict. In such circumstances, as well as for the reasons recorded ahead, in the opinion of this Court grant of parole, in absence of any appeal, in no manner amount to interference in the proceedings of the confirmation case pending before the Appellate court, as grant of parole does not amount to suspension of conviction and sentence, as asserted by the State.
7.7 The Court finds support of the aforesaid legal position as held by the Hon'ble Supreme Court in the case of Dadu @ Tulsidas Page 37 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined Vs. state of Maharashtra , reported in (2000)8 SCC 437. The Hon'ble Supreme Court was examining the constitutional validity of section 32A of the NDPS act. The Hon'ble while holding that the provision under special enactment rightly impose restriction on power of executive conferred under section 432 and 433 of the Cr.P.C. but in the same breath while considering the judicial powers conferred on court of law, the Hon'ble Court at one stage observed that :
"The award of sentence by a criminal court wherever made subject to the right of appeal cannot be interfered or intermeddled with in a way which amounts to not only interference but actually taking away the power of judicial review. Awarding the sentence and consideration of its legality or adequacy in appeal is essentially a judicial function embracing within its ambit the power to suspend the sentence under the peculiar circumstances of each case, pending the disposal of the appeal."
The Hon'ble Supreme Court ultimately held that section 32A of the NDPS act as ultravires in so far as it takes away the right of the court to suspend the sentence under the Act. It Page 38 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined further held that suspension of sentence can be done by the Appellate court only and strictly according to the conditions spelt out under section 32 of the NDPS act.
7.8 It may be worth to mention here that while addressing the issue of whether grant of parole would amount to suspension of sentence, the Hon'ble Supreme Court further relied upon the decision of the constitutional bench of the Hon'ble Supreme Court in the case of Sunil Fulchand Shah ( supra) which has distinguished the terms of "Bail" and "parole". The relevant observations are as under :
"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 offense or has been convicted of an offense 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. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of Page 39 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined the word 'Bail' is surety. In Halsbury's Law of England 4th Ed., vol 11, para 166, the following observation succinctly brings out the effect of bail:
"The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned."
'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."
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NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined BLACK'S LAW DICTIONARY - SIXTH 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 P. Ramanatha Aiyar's The Law Lexicon with Legal Maxims, Latin Terms and Words & Phrases; p. 1410., '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 (Permanent Edition) vol. 31; pp. 164, 166, 167; West Publishing Co. : "'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, 135 N.E. 2d 567, 571, 1 N.Y. 2d 367, 153 N.Y.S. Page 41 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined 2d 21, 26.
'Parole' does not vacate sentence imposed, but is merely a conditional suspension of sentence. Wooden v. Goheen, Ky., 255 S.W. 2d 1000, 1002."
"A 'parole' is not a 'suspension of sentence', but is a substitu-tion, 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, CA. Ind., 211 F. 2d 904, 906.
"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."
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, Page 42 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined 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 vs. Mohinder JT (2000) 1 SC 629, to which one of us (Wadhwa, J.) was a party. That distinction is explicit and I respectfully agree with that distinction. 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." 7.9 In light of the aforesaid legal settled position , where there is no stay of the order of conviction while the convict is released on parole leave rather on completion of parole leave the convict has to surrender to the institution. Further, this court is of the view that mere pendency of the confirmation case before the appellate court, in absence of any contradictory provisions, would not take away the remedy of availing parole provided under the law. The applicants have approached writ court praying Page 43 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined on the ground of filing of appeal and meeting family. Indisputably, the applicants have been under long continuous incarceration. There is no doubt that the right of appeal is the creature of a statute and when conferred, a substantive right. The convict facing the death sentence is entitled to appeal. Even where the accused were facing serious charges, while expressing views on granting of bail to the convict pending the appeal , the Hon'ble Supreme Court ( Justice Krishna Iyer , J) in the case of Babu singh vs. state of UP, reported in AIR 1978 SC 527 has expressed view favoring the release of accused pending the appeal. As well in the case of Kashmira Singh vs. State of Punjab, reported in AIR 1977 SC 2147 (authored by Justice Bhagwati, J) held that the court being unable to dispose of the appeal in near future, can be considered a relevant factor to grant bail.
8. Criteria for grant of Parole leave :
On the other hand, grant of parole is governed by the rules framed by the erstwhile State of Bombay and adapted by the State of Gujarat. In exercise of powers conferred under clauses Page 44 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined (5) and (28) of section 59 of the Prisons Act, 1894 the Parole ( Bombay furlough and parole) rules, 1959 were framed and made applicable to the whole State of Bombay. The rules for grant parole are covered under Rule 18 to 28 of the aforesaid rules. Rule 19 relates to circumstances to be considered for release of convict on parole. Rule 20 provides that parole not to be counted as remission of sentence. The grant of parole is one kind of special privilege which gets accrued and conferred upon convict who has undergone substantial period of sentence and as part of reformative process, the convict is permitted to meet his family subject to the conditions and is required to surrender before the Jail authority on completion of such period spend on leave. Thus, what is essentially examined by the Court while considering parole application under writ jurisdiction is the long period of incarceration, jail conduct, the emergency situation as identified under relevant rules. Indisputably, there is no examination of the merits of the case while application for parole is considered.
9. Conclusion :
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NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined Thus, in the opinion of this Court there cannot be any ideal comparison of release of convict on parole and release of convict followed by suspension of conviction / execution of sentence. The exercise of powers for release of convicts under section 389 of the Code though confers wide discretionary powers to the Court but at the same time it is not used indiscriminately, once conviction is determined, in a routine or casual manner for the reason that an exception clause requires strict interpretation. But that doesn't take away the powers of the Court to grant parole leave. Both the remedies operate in different areas recognized under their respective legislation to serve the object of that legislation. For the foregoing reasons and the legal principle laid down by the Hon'ble Supreme Court, the Court finds that grant of parole would not amount to suspension of sentence.
10. Now, having held so, considering the merits of the case, undoubtedly the gravity of offense and the manner in which the involvement of the present applicants have been projected by the State, the applicants facing conviction for serious charges for which death penalty has been awarded. This Court is called upon Page 46 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined to consider the case of convicts for grant of parole leave pending confirmation case. At the same time the Court finds that not granting of relief in the form of parole to a convict, who has continuously undergone a long period of incarceration would be unjust, unfair and violative of Article 21 of the Constitution particularly when right to file appeal is treated as one of the facet of Article 21 of the Constitution. The parole and furlough leaves are part of the penal and prison system with a view to humanise the prison system. It is a right of the prisoner recognised under section 5(A) and 5(B) of the Prisoners Act, 1894. All fixed term sentences of imprisonment of above 18 months are subject to release on parole after one third of the period of sentence has been served. It is a provisional release from confinement but is deemed to be part of the imprisonment. The Court notices further that there is no classification of the prisoners based on gravity of the sentence which disentitle a convict facing death sentence to be not extended privilege leave in the form of parole. At the same time, examining matter in writ jurisdiction, the Court cannot oblivious of Article 21 of the Constitution of India which recognizes right to life with human dignity and all that goes along with it namely, the bare Page 47 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined necessities of life such as adequate nutrition, clothing, an shelter but also freely moving and mixing with his relations. The convict has the right to meet his family members during the period of incarceration pending the confirmation case. The Courts are facing situations where the pendency of criminal litigation indicates no possibility of early hearing of the appeal and its disposal on merits. The proceedings before trial court have almost taken 14 years and the adjudication of confirmation case would add further years. This Court finds that taking into consideration their long period of continuous incarceration for almost 14 years, the applicants deserves parole leave. In the case of Sunil Batra Vs. Delhi Administration, reported in (1978) 4 SCC 409, the Hon'ble Supreme Court upheld the rights of prisoners to meet their family members. Also, the Supreme Court in the case of Asfaq ( supra), held that grant of parole cannot be circumscribed by the gravity of offense. It is a well settled position that the graver the offense the severe the punishment bound to follow. Also, with the imposition of severe punishment, there is more likelihood of the accused jumping the bail.
11. In the opinion of this court accepting the stand of the State Page 48 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023 NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined would amount to imposing self restrictions on oneself which otherwise even statute does not prescribe. This would amount to abdication of powers conferred under the Constitution to a writ court. However, noticing their past jail conduct and the pendency of the second offense before the trial court, such release of convict on parole for a period of 15 days is subject to Police surveillance, the expense of which shall be borne by the State. The Court was apprised of the release of co-convicts, who have been enlarged on parole. The said petitioners have been facing similar convictions were imposed either death penalty or life imprisonment, however, subject to strict conditions their case have been considered by the co-ordinate bench. In the opinion of this court the apprehension expressed by the State can be taken care of by imposing similar restrictions. It is further directed that the applicants shall be confined to their residential house throughout this period of parole leave and shall not leave the limits of their respective residential place in their respective cities viz. Ahmedabad and Vadodara. There shall be no application for extension of parole leave and the applicants shall surrender forthwith on completion of the period of parole leave. There shall be no violation of any law and order by them. Page 49 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023
NEUTRAL CITATION R/SCR.A/5471/2023 JUDGMENT DATED: 21/07/2023 undefined
12. The applications are hereby allowed in the aforesaid terms. Rule is made absolute accordingly. Registry is directed to communicate this order by FAX/ email.
(NISHA M. THAKORE,J) Radhika Page 50 of 50 Downloaded on : Sat Sep 16 22:31:11 IST 2023