Rajasthan High Court - Jodhpur
Ramesh Kumar vs State Of Raj. & Ors on 16 April, 2013
Bench: Dinesh Maheshwari, R.S. Chauhan, Sandeep Mehta
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Larger Bench Civil Reference No.1/2013
Ramesh Kumar Vs. State of Rajasthan & Ors.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
Larger Bench Civil Reference No.1/2013
Ramesh Kumar
Vs.
State of Rajasthan & Ors.
Date of Order : 16th April 2013
PRESENT
HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE R.S. CHAUHAN
HON'BLE MR. JUSTICE SANDEEP MEHTA
Appearance:
Mr. Mahesh Bora, Senior Advocate with
Mr. Nishant Bora
Mr. Kalu Ram Bhati
Mr. Ashok Chhangani
Mr. Sunil Purohit
Mr. D.N. Yadav
Mr. Sushil Bishnoi
Mr. G.R. Punia, Senior Advocate & Addl. Advocate General with
Mr. Mahendra Choudhary & Mr. Praduman Singh, Assistants to AAG
Mr. K.R. Bishnoi, Government Counsel
Mr. B.K. Mehar, Government Counsel
Dr. Ashok Soni
Mr. Brijesh Purohit
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Reportable BY THE COURT: (Per Hon'ble Dinesh Maheshwari, J.)
PRELIMINARY This Larger Bench has been constituted under the orders of Hon'ble the Chief Justice for resolution of apparently divergent, and rather conflicting, views expressed by different Division Benches of this Court on the issue of the right of an accused/prisoner/convict to be released on parole by the State Government under the provisions of the Rajasthan Prisoners Release on Parole Rules, 1958 during [2] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
the pendency of an appeal filed by him/her against conviction. The question referred for resolution and adjudication is as under: -
"Whether the right of an accused/prisoner/convict to be released on parole can be considered by the State Government under the provisions of the Rajasthan Prisoners Release on Parole Rules, 1958 during the pendency of any appeal filed by him/her against his/her conviction."
RELEVANT BACKGROUND ASPECTS The matter wherefrom this Larger Bench Reference has been made, is a Letter Petition sent by the convict-prisoner Ramesh Kumar S/o Dashrath Kumar Khatri from Central Jail, Bikaner stating the grievance that his case for grant of permanent parole was not being considered despite being eligible therefor. A notice to show cause was issued in the matter on 22.08.2012. The respondents have stated in their reply, inter alia, the facts that the prisoner concerned was convicted by the judgment and order dated 31.01.2002 passed by the Additional Sessions Judge, Barmer in Sessions Case No.28/1998 for the offences under Sections 302,364 and 120B IPC; and was awarded varying sentences, including life imprisonment for the offence under Section 302 IPC.
The respondents have further pointed out that against the judgment and order aforesaid, the prisoner filed an appeal, being D.B. Cr. Jail Appeal No.154/2002 that was dismissed by this Court by the judgment dated 02.03.2006. However, a Petition for Special Leave to Appeal against the said judgment is pending consideration before the Hon'ble Supreme Court.
The respondents have also pointed out that the petitioner had been transferred to Open Air Camp, Bichhwal, Bikaner and is [3] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
serving the sentence thereat since 10.02.2008. It has also been pointed out that when the matter of the petitioner was sent for consideration of permanent parole, it was sent back to the jail authorities by the Director General (Prisons) on 24.07.2012, on the ground that pending his appeal before the Hon'ble Supreme Court, the prisoner was not entitled to be released on permanent parole.
The respondents have referred to the provisions of the Rajasthan Prisoners Release on Parole Rules, 1958 ('the Parole Rules'/'the Rules of 1958' hereafter) but then, have averred that a Division Bench of this Court in the case of Umesh Kumar Singh @ Munna Singh Vs. The State of Rajasthan & Ors : D.B. Civil Writ Petition (Parole) No.2138/2011, by the order dated 15.06.2012, has concluded that during the pendency of appeal before the Appellate Court, a prisoner is not entitled to be released on parole. It has been pointed out that pursuant to the order in Umesh Kumar Singh (supra), the State Government has issued a circular dated 26.07.2012 to the effect that the prisoners, whose appeals are pending consideration, are not entitled to be released on parole.
On the matter being taken up for consideration on 11.01.2013 before a Division Bench of this Court, the learned counsel appearing for the petitioner referred to the two earlier Division Bench decisions: one in the case of Bhanwar Lal Godara & Ors. Vs. State of Rajasthan & Ors : 2005(1) WLC (Raj.) 93; and another in D.B. Cr. Appeal No.343/2002 : Gani Khan Vs. State of Rajasthan. It was submitted that outcome of both these cases has been that though during the pendency of trial, an accused is not entitled for parole [4] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
under the Rules of 1958 but, after conviction he may be released on parole; and even in the matters pending in appeal and even after rejection of the application for suspension of execution of sentence by the Court, an accused has a right to be considered for parole under the Rules of 1958. The learned Additional Advocate General appearing for the State also did not dispute the fact that before Umesh Kumar Singh's case, this Court had taken the view in Bhanwar Lal Godara's case to the effect that even during the pendency of appeal, the powers to release a convict on parole could be exercised by the State.
The Division Bench referred to the reasonings and ratio of the apparently conflicting decisions on the question as to whether during the pendency of criminal appeal, an accused/convict/prisoner has a right to have his case considered for grant of parole under the provisions of the Rules of 1958. The Division Bench, then, referred to the several decisions of the Hon'ble Supreme Court including those in Union of India & Anr. Vs. Raghuveer Singh (Dead) by LRs. etc.: (1989) 2 SCC 754 and Rattiram & Ors. Vs. State of Madhya Pradesh: (2012) 4 SCC 516 to observe that it was not possible for a Division Bench to consider the judgment of the other Division Bench on merits; and in view of the divergent views, in Umesh Kumar Singh's case on one hand and Bhanwar Lal Godara's case and Gani Khan's case on the other, thought it fit to refer the matter to the Chief Justice to constitute a Larger Bench with a suggested question that has been re-framed by Hon'ble the Chief Justice, as noticed at the out set.
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Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
DIVERGENT VIEWS Having taken note of the question referred and the background in which it came to be referred, it is, at once, clear that the root question as to whether State Government can consider the request of a convict to be released on parole under the Rules of 1958 during the pendency of an appeal against conviction, did acquire attention of different Division Benches of this Court. One line of view had been that even during pendency of appeal against conviction, a prisoner could be released on parole under the Rules of 1958. This view was taken in Bhanwar Lal Godara's case (supra), decided on 14.09.2004. Another Division Bench of this Court, in its order dated 22.02.2010 in Gani Khan's case (supra), followed the decision in Bhanwar Lal Godara and held that though during pendency of the trial, the accused was not entitled for parole under the Rules of 1958 but after conviction, he could be released on parole. The other line of view, diametrically opposite, has been expressed in Umesh Kumar Singh's case (supra), decided on 15.06.2012, wherein, another Division Bench of this Court held that powers of the State Government under the Parole Rules cannot be exercised so long as an appeal by the convicted person is pending and the Appellate Court is in seizin of the case.
The divergent and discordant views on the point-in-issue are effectively represented on one hand by the decision in Bhanwar Lal Godara's case and on the other hand by the decision in Umesh Kumar Singh's case. So far Gani Khan's case is concerned, the Hon'ble Division Bench therein has essentially relied upon the [6] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
decision in Bhanwar Lal Godara. Thus, it does not appear necessary to dilate much into the decision in Gani Khan's case. In Umesh Kumar Singh's case, the Division Bench observed that Bhanwar Lal Godara was a decision rendered contrary to the dictum of the Constitution Bench decision in K.M.Nanavati Vs. State of Bombay: AIR 1961 SC 112. For a comprehension of the views and their basis, it appears necessary to examine more closely these two conflicting decisions, in Bhanwar Lal Godara and in Umesh Kumar Singh.
The decision in Bhanwar Lal Godara In Bhanwar Lal Godara's case, the Division Bench at the outset projected the question being addressed, i.e., as to whether the provisions contained in the Rajasthan Prisoners Release on Parole Rules, 1958 can be invoked during the pendency of criminal appeal?
The Bench, thereafter, scanned through the scheme of the Parole Rules and the relevant provisions of the earlier applicable Code of Criminal Procedure, 1898 (hereinafter referred to as 'the Code of 1898'/ 'Cr.P.C., 1898') as also in the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code of 1973'/ 'Cr.P.C., 1973'). Thereafter, the Bench observed that in K.M.Nanavati (supra), the question for consideration before the Constitution Bench was as to whether for the period when the Supreme Court was in seizin of the case, the Governor could suspend the sentence during that period under Article 161 of the Constitution; and quoted the observations of the Hon'ble Supreme [7] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
Court from paragraph 21 of the report. The Bench, thereafter, referred to the observations in Sarat Chandra Rabha Vs. Khagendra Nath: AIR 1961 SC 334 to the effect that the power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional court would have, of reducing the sentence passed by the Trial Court and substituting in its place the reduced sentence adjudged by the appellate or revisional court. Then, the decision in Dadu @ Tulsidas Vs. State of Maharashtra:
(2000) 8 SCC 437 was referred to point out that the Hon'ble Supreme Court had indicated that the parole was not the suspension of sentence and the convict continues to serve the sentence despite grant of parole; and that the grant of parole is essentially an executive function to be exercised within the limits prescribed in that behalf. The decision in Poonam Lata Vs. M.L.Wadhawa & Ors.:
(1987) 3 SCC 347 was also referred on the historical concept of parole. Thereafter, the Constitution Bench decision in Maru Ram & Ors. Vs. Union of India & Ors.: (1981)1 SCC 107 was referred while observing that therein, the Hon'ble Supreme Court had indicated that executive powers must not be exercised arbitrarily or mala fide.
After this much of discussion, the Division Bench concluded on the point-in-issue as under:-
10. It may thus be inferred that when a prisoner is released tem-
porarily before the expiry of a sentence on the promise of return to jail, he is released on parole. To release a prisoner on parole is an executive function to be exercised within the limits. Release on parole does not change the status of prisoner. It is a provisional release from confinement but is deemed to be a part of the impris- onment. In Rajasthan a prisoner sentenced to imprisonment for not less than one year may, subject to exceptionally good behav- iour, be allowed by the Superintendent Jail, to submit an applica- tion for parole, which has to be forwarded to the District Magistrate [8] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
who may further forward it to the appropriate committee. If a pris- oner who has completed with remission, one fourth of his sen- tence, subject to good conduct in Jail, may be released on first pa- role for 20 days. In emergent cases the Superintendent of Jail has right to grant parole upto a period of seven days.
11. So far as suspension of the sentence for the period when the appellate court is in seizin of the appeal is concerned it can be granted by the appellate Court itself under Section 389 Cr.P.C. When the application of a prisoner seeking suspension of sen- tence is rejected and criminal appeal is pending, in that eventuality the prisoner, in our opinion still has a right to move an application for parole if he has completed with remission, one fourth of his sentence subject to his good conduct in jail. In emergent cases however application may be disposed of by the Superintendent of Jail as per parole rules."
The decision in Umesh Kumar Singh In Umesh Kumar Singh's case, the other Division Bench of this Court proceeded to consider such writ petitions wherein the orders passed by the executive authorities rejecting the applications for parole were in challenge; and the regular appeals against conviction were pending but the Court had dismissed the applications for suspension of execution of sentence. The Division Bench proceeded to consider the scenario that even after rejection of the application for suspension of execution of sentence by the Appellate Court, the accused is released from custody on parole, of course, with reference to his conduct in jail and the reports of the concerned Departments. The Division Bench then referred to the fact that the Rules of 1958 were framed in exercise of the powers conferred by Section 401(6) of Cr.P.C., 1898. The Division Bench further referred to the decision in Shambhu Dayal Vs. State of Rajasthan & Ors.: [2012 Cr.L.J. 2359] where another Division Bench had answered the reference and held that the State Parole Rules of 1958 were not applicable in the cases of conviction under NDPS Act and where the convict was sentenced to imprisonment to [9] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
an offence under any law relating to the matter to which executive powers of Union extends; and such cases have to be dealt with in accordance with the Central Rules of 1955.
The Division Bench, then, considered the manner in which the prayer for release on parole or emergent parole is considered under the Rules of 1958. The Division Bench also pointed out that under the Parole Rules, the parole period is regarded as special remission and the aim of granting parole is to encourage good conduct but certain persons have been made ineligible with reference to their place of residence or offences or their conduct. The Division Bench, thereafter, referred to the separate functions of the judiciary and the executive, particularly as regards execution of sentence; and referred to the provisions contained in Sections 432, 433 and 433A of the Code of 1973 relating to the powers of the Government of suspension, remission, and commutation of sentence. The Division Bench also referred to various rules framed in relation to the prisoners. The Bench, then, referred to the fact that the power to suspend execution of sentence has also been conferred on the judiciary as regards the pending cases and referred to Section 389 of the Code of 1973. Having referred to the powers of the executive and the judiciary, particularly as regards suspension of sentence, the Bench formulated the question as being addressed by it in the following:-
"16. The aforesaid provision specifically deals with a situation in which an appeal is pending. The appellate court is seized with the matter and thus entitled to pass such orders as it thinks fit and proper to suspend the sentence. Therefore, provision with regard to the powers to be exercised by the State, through its executive, [10] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
deals with a situation in which pendency of appeal is not envisaged whereas in the case of the power of the courts pendency of an appeal is postulated. In other words, the powers of the State deals with the person sentenced to punishment for an offence, in general terms but the powers of the judiciary are special where after awarding sentence an appeal is pending before the appellate court. Therefore, the powers of the judiciary must be out of the operation of the State through its executive. A question then arises, as to whether the powers of the State for suspension of sentence; release from custody on parole etc. do cover the entire period after the order of conviction of sentence, even when an appeal is pending in the appellate court and section 389 can be availed off by an appellant."
The Division Bench, thereafter, referred to the observations of the Hon'ble Supreme Court in K.M.Nanavati in paragraphs 16, 17, 21 and 25 of the report and, on that basis, held as under:-
"18. Therefore, in our considered opinion, the powers of the State Government under the Parole Rules cannot be exercised so long as an appeal by a convicted person is pending and the appellate court is in seizin of the case. The Parole Rules cannot stultify or thward 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 stated its disagreement with Bhanwar Lal Godara's case with the observations that therein, despite noticing the observations in K.M.Nanavati's case, the Division Bench did not rule as per the law laid down by the Supreme Court. Such observations in Umesh Kumar Singh's case are as under:-
"19. Learned counsels for the petitioners have, in support of their contentions, heavily relied upon the case of Bhanwar Lal Godara & Ors. Vs. State of Rajasthan & ors- 2005(1) WLC (Raj.) 93. In the said case, while considering the question, as to whether the provisions contained under the Rajasthan Prisoners (Release on Parole) Rules, 1958 can be invoked during the pendency of the criminal appeal. Reliance has also been placed on the case of K.M. Nanavati (supra) and para 21 has been extensively considered.
20. A close look to the observations made in Para 21 by their Lordships of the Supreme Court in K.M. Nanavati's case which has been quoted in the case of Bhanwar Lal Godara would reveal that it has been specifically observed that, "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 [11] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
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."
Further, "so 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".
21. Even then it has been held in the case of Bhanwar Lal Godara (supra) that "when the application of a prisoner seeking suspension of sentence is rejected and criminal appeal is pending, in that eventuality the prisoner, in our opinion still has a right to move an application for parole if he has completed with remission, one fourth of his sentence subject to his good conduct in jail."
22. We are respectfully of the view that the aforesaid observation made by the learned court in the case of Bhanwar Lal Godara (supra) is not in consonance with the principle of law laid down by the Constitution Bench of the Supreme Court in the case of K.M. Nanavati (supra). It is rather in conflict with the principle as laid down by the Constitution Bench of the Hon'ble Supreme Court in that case."
A Full Bench decision of Bombay High Court in S. Sant Singh Vs. Secretary Home Department, Government of Maharashtra was cited before the Division Bench which was distinguished in the following:-
"28........... In such a situation, it is clear that in the case of S. Sant Singh (supra) considered by the Full Bench of the Bombay High Court, firstly, the parole rules were framed under the Prisons Act, 1894 whereas in the case of Rajasthan Prisoners (Release of Parole) Rules, 1958, the said rules have been framed by the Government of Rajasthan in exercise of powers conferred by sub- section (6) of section 401 of the Code of Criminal Procedure, 1898 (section 432 of the Code of Criminal Procedure, 1973). Secondly, another difference in the two relevant rules is that under the Rajasthan Prisoners (Release on Parole) Rules, 1958 the period of parole has been considered as imprisonment served and this makes it different in nature with the parole granted under the Prisons (Bombay Furlough and Parole) (Amendment) Rules, 1989. Thirdly, under the Prisons (Bombay Furlough and Parole) (Amendment) Rules, 1989, parole would not be covered under section 432 Cr.P.C. 1973, whereas under the Rajasthan Prisoners (Release on Parole) Rules, 1958 the powers for granting parole flow from it.
The Division Bench laid emphasis on its reliance in [12] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
K.M.Nanavati's case to hold that the executive cannot exercise the powers as long as the matter is seized with the Court in the following:-
"29............Therefore, while considering the question of exercise of powers by the executive and the judiciary, the principle laid down by the constitution bench of the Hon'ble Supreme Court in the case of K.M. Nanavati (supra) was that so long as the judiciary has power to pass the particular order in a pending case to that extent the power of the executive is limited and in view of the words either of section 401 and 426 cr.P.C. and Articles 142 and 161 of the Constitution. It would, thus, follow that what is covered under Article 142 is not covered under Article 161 and what is covered by Section 426 is not covered by section 401 Cr.P.C. The Governor or the executive would not exercise the powers until the matter is seized with the court and is sub-judice before it."
The Division Bench, again, referred to the decisions in Dadu @ Tulsidas, Maru Ram and Poonam Lata as regards the corollary points and issues and concluded as under:-
"34. It is only on the conclusion of the judicial function that the other executive function by way of releasing the accused on parole, etc. are to be exercised. The executive powers of the State deals with a situation in which pendency of appeal is not envisaged whereas in the case of the powers of the courts, pendency of an appeal is postulated. The powers of the State deals with generally whereas that of the judiciary are special, as after awarding of sentence an appeal is pending before the appellate court.
Such powers cannot be put into action simultaneously, otherwise it would bring about a conflict of jurisdiction between the two, namely the judiciary and the executive. Therefore, the powers assumed to itself by the State Government under the parole rules cannot be exercised so long as an appeal by a convicted person is pending and the judicial function is not complete. Parole relates to executive action taken after the door of judicial function is closed for a convict. The parole rules cannot stultify the judicial process and even in emergent circumstances, the court would grant the relief under Section 389 Cr.P.C. to a convict in a deserving case. So long as the judiciary has the power to pass an order in a pending case, the power of the executive is limited in view of the Code of Criminal Procedure as well as the Constitution."
THE ARGUMENTS Having taken note of the relevant background aspects, the divergent view leading to this reference, and the question referred, we may observe that though during the course of submissions in this [13] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
matter by the learned members of the Bar, several different aspects of penology and the different rights of prisoners have been argued but having regard to overall circumstances, we, in this Larger Bench, propose to dilate upon and deal only with the essential aspects correlated with and having the bearing on the narrow point referred, and not beyond.
Leading the arguments on the lines that the view as taken in Bhanwar Lal Godara is the correct one and that in Umesh Kumar Singh is not, the learned Senior Counsel Mr. Mahesh Boda with Mr.Nishant Boda and Mr.Kalu Ram Bhati has argued that in Umesh Kumar Singh's case, the Division Bench of this Court has not appreciated the controversy as was involved in K.M. Nanavati's case and the ratio of the decision rendered by the Hon'ble Supreme Court. The learned counsel submitted that the power of suspension and the power of parole operate in different fields and have no traces of any conflict; and that there is neither any conflict between the provisions of Sections 389 and 432 of the Code of 1973, nor there had been any conflict in the earlier corresponding provisions of Section 426 and 401 of the Code of 1898. The learned counsel further submitted that though until conviction and when the matter is pending, the matter is entirely in the jurisdiction of the Court but after conviction, there are several different aspects to be dealt with qua the accused concerned. When he files an appeal, the Court may suspend the sentence per Section 389 of the Code of 1973 or he may continue to serve the sentence while the appeal remains pending for hearing but in that eventuality, the power of the State [14] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
Government to grant him parole upon satisfaction of the given conditions is neither whittled down, nor taken away merely because of pendency of appeal. The learned counsel emphasised on the submissions that in K.M.Nanavati's case, the question of grant of parole was not at all in issue and, therefore, the said decision is of no application as regards powers of the State Government to release a convict on parole. The learned counsel Mr. Ashok Chhangani also joined in the submissions that the decision in K.M. Nanavati's case had been relating to an entirely different controversy and no law of universal application could be read therein that pending an appeal, parole cannot be granted. The learned counsel Mr.Sunil Purohit voiced the same line of arguments that parole is different than suspension; and submitted that in the matter of parole, K.M.Nanavati's decision cannot be held applicable. The learned counsel Mr.D.N.Yadav also took the same line of arguments and further emphasised on the submissions that when the appeal remains pending for a substantial number of years, denial of parole to a prisoner cannot be held justified. Apart from the above, the learned counsel Mr.Sushil Bishnoi endeavoured to add another dimension to the arguments with reference to Section 10 of the Rajasthan Prisoners Act, 1960. The learned counsel submitted that even under the said provisions, release on parole can be ordered by the State Government or its delegate for special reasons.
The learned Senior Counsel and Additional Advocate General Mr. G.R. Punia submitted that the Rules of 1958 have been framed for temporary release of the prisoner; and they could be read only to [15] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
the effect that the prisoner is released from one custody but is sent to another because he continues to serve the sentence. It is submitted that the order as passed in such matters is protected by sub-section (5) of Section 432 of the Code of 1973. The learned counsel also referred to the decision of Maru Ram's case: (1981) 1 SCC 107 to submit that when the Hon'ble Apex Court has found Section 433-A of Cr.P.C., 1973 valid and has held that upon serving of a sentence of 14 years, the power could be exercised for release, in all effects, the power to release on parole to the State Government cannot be denied. The learned counsel further referred to the decision of this Court in Shambhoo Dayal's case (supra) to submit that the rules framed by the Central Government have also been held applicable for grant of parole. It is submitted that the parole is a distinctive power and essentially the executive function which does not come in conflict with the Court's powers of suspension. Mr. Punia, however, candidly admitted that the State Government is working on the other options of framing different rules.
The learned counsel Dr. Ashok Soni and Mr.Brijesh Purohit on the other hand, have voiced the different view that the powers of Section 432 could be exercised only when the matter is not pending in Court and else, when the matter remains pending in the Court, in the scheme of the related provisions, preference is to be given to the judiciary and the executive cannot sit over the jurisdiction of the Courts.
In their elaborate and extensive submissions, the learned [16] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
counsel who have assisted the Bench have referred to several of the other decisions too, which we shall refer hereinafter. THE ISSUE Put in a nut shell, the question, thus, is: as to whether during the pendency of an appeal filed by an accused against conviction, the State Government could consider his right to be released on parole under the Rules of 1958? The question, in its background, pre-supposes that (i) a person has been convicted; (ii) has filed an appeal against conviction that remains pending but the person concerned is serving the sentence of imprisonment; and (iii) the person concerned seeks release on parole by the State Government under the Parole Rules, i.e., the Rules of 1958. THE STATUTORY PROVISIONS/RULES Having taken note of the question arising for consideration, the background in which it came to be referred, the conflicting views of the Benches and the varying submissions made by the learned members of the Bar, we can enter into the process of resolution on the question referred. However, before proceeding further in the matter, appropriate it would be to take note of the relevant provisions of law. First, a panoramic view of the Rules of 1958. Rajasthan Prisoners Release on Parole Rules, 1958 The Rules of 1958 were promulgated by the State Government in exercise of the powers conferred by Sub-section (6) of Section 401 of the Code of Criminal Procedure, 1898 [equivalent being Sub-section (5) of Section 432 of the Code of Criminal [17] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
Procedure, 1973].
The scheme of these Parole Rules is that as per Rule 3, a prisoner sentenced to imprisonment for not less than one year may, subject to exceptionally good behaviour, be allowed by the Jail Superintendent, to submit an application for parole. Such an application has to be forwarded to the District Magistrate (Rule 4), who may either reject or forward the same to the Appropriate Committee (Rule 5). If the Committee accepts the recommendations of the District Magistrate, the prisoner can be released on parole on such conditions and for such period as directed (Rule 6). Rule 9 provides that a prisoner who has served with remission, if any, one fourth of sentence, subject to good conduct in the jail, may be released on first parole for 20 days including the days of journey to home and back; for 30 days on second parole, provided his behaviour had been good during the first parole; and for 40 days on third parole, provided his behaviour had been good during the second parole. If during the third parole, the prisoner has behaved well, his character has been exceedingly well, and his conduct makes out that he is not likely to relapse into crime, his case may be recommended to the Government through the State Committee for permanent release on parole on such conditions as deemed fit, the principal condition being that if the prisoner, while on parole commits any offence or abets, directly or indirectly, commission of any offence, he has to undergo the unexpired portion of the sentence in addition to any sentence imposed upon him by reason of such an offence. In case the permanent release on parole is declined, the [18] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
prisoner will be eligible for release on parole for 40 days every year subject to the same conditions for the remaining period of his sentence.
Rule 9-A provides that in emergent cases, the prisoner can be granted parole upto a period of 7 days by the Superintendent of Jail subject to confirmation by the Inspector General of Prisons; and for a period of not more than 15 days by the Inspector General of Prisons. Per Rule 10, no second and subsequent release on parole shall be made unless 11 months have elapsed from the date of the expiry of the period of release on parole immediately preceding. Rule 10-A is specifically for emergent cases involving humanitarian consideration, for grant of parole for over period of 7 days or 15 days by the specified authorities for specific reasons. Rule 11 provides that in course of release on parole, except permanent release, the prisoner shall remain under supervision of a guardian approved by the State Committee or District Committee who shall report any breach of conditions of parole to the District Magistrate concerned. In case of permanent release on parole, the prisoner should be under the supervision of probation officer.
Per Rule 12, the period for which a prisoner stays on parole under Rule 9 without violating the conditions laid down, is to be treated as the imprisonment served by him. All other kinds of parole shall be treated as sentence suspended. Rule 13 provides that the grant of parole should be regarded as concession to encourage good conduct and it shall not be claimed by prisoners as a matter of right. Certain classes of persons, as specified in Rule 14, are [19] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
ordinarily ineligible for release of parole. Computation of sentences for the purpose of Rules is to be made as per the principles given in Rule 15. Rules 16 to 18 carry essentially the provisions for revocation and cancellation of the parole granted and punishment for breach of conditions of parole.
Relevant provisions in the Code of 1898 and in the Code of 1973 We may now take note of the relevant statutory provisions having a bearing on, and co-relation with, the question involved. Section 432 of the Code of 1973 is the corresponding provision to Section 401 of the Code of 1898 whereunder Rules of 1958 are promulgated. Both these provisions are reproduced hereunder in juxtaposition as under:-
Section 401 of the Code of 1898 Section 432 of the Code of 1973
401. Power to suspend or remit 432. Power to suspend or remit sentences.- (1) When any person sentences.- (1) When any person has has been sentenced to punishment been sentenced to punishment for an for an offence, the appropriate offence, the appropriate Government Government may at any time, without may, at any time, without conditions or conditions or upon any conditions upon any conditions which the person which the person sentenced accepts, sentenced accepts, suspend the suspend the execution of his execution of his sentence or remit the sentence or remit the whole or any whole or any part of the punishment to part of the punishment to which he which he has been sentenced.
has been sentenced. (2)Whenever an application is made to (2) Whenever an application is made the appropriate Government for the to the appropriate Government for the suspension or remission of a sentence, suspension or remission of a the appropriate Government may sentence, the appropriate require the. presiding Judge of the Government, may require the Court before or by which the conviction presiding Judge of the Court before was had or confirmed, to state his or by which the conviction was had or opinion as to whether the application confirmed to state his opinion as to should be granted or refused, together whether the application should be with his reasons for such opinion and granted or refused, together with his also to forward with the statement of reasons for such opinion and also to such opinion as certified copy of the forward with the statement of such record of the trial or of such record opinion a certified copy of the record thereof as exists.
of the trial or of such record thereof as (3)If any condition on which a sentence
exists. has been suspended or remitted is, in
(3) If any condition on which a the opinion of the appropriate
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Ramesh Kumar Vs. State of Rajasthan & Ors.
sentence has been suspended or Government, not fulfilled, the
remitted, is, in the opinion of the appropriate Government may cancel appropriate Government, not fulfilled,the suspension or remission, and the appropriate Government may thereupon the person in whose favour cancel the suspension or remission, the sentence has been suspended or and thereupon the person in whose remitted may, if at large, be arrested by favour the sentence has been any police officer, without warrant and suspended or remitted, may, if at remanded to undergo the unexpired large, be arrested by any police- portion of the sentence. officer without warrant and remanded (4)The condition on which a sentence to undergo the unexpired portion of is suspended or remitted under this the sentence. section may be one to be fulfilled by the (4) The condition on which a sentence person in whose favour the sentence is is suspended or remitted under this suspended or remitted, or one section, may be one to be fulfilled byindependent of his will. the person in whose favour the (5)The appropriate Government may, sentence is suspended or remitted, or by general rules or special orders, give one independent of his will. directions as to the suspension of (4A) The provisions of the above sub- sentences and the conditions on which sections shall also apply to any orderpetitions should be presented and dealt passed by a Criminal Court under with:
any section of this Code or of any Provided that in the case of any other law, which restricts the libertysentence (other than a sentence of of any person or imposes any liabilityfine) passed on a male person above upon him or his property. the age of eighteen years, no such (5 and 5A) [Omitted by Adaptation of petition by the person sentenced or by Laws Order, 1950]. any other person on his behalf shall be (6) The appropriate Government may, entertained, unless the person by general rules or special orders, sentenced is in jail, and-
give directions as to the suspension (a) where such petition is made by the of sentences and the conditions on person sentenced, it is presented which petitions should be presented through the officer in charge of the jai;
and dealt with: or Provided that in the case of any (b) where such petition is made by any sentence (other than a sentence of other person, it contains a declaration
fine) passed on a male person above that the person sentenced is in jail. the age of eighteen years, no such (6) The provisions of the above sub- petition by the person sentenced or sections shall also apply to any order by any other person on his behalf passed by a Criminal Court under any shall be entertained, unless the section of this Code or of any other law person sentenced is in jail, and - which restricts the liberty of any person
(a) where such petition is made by or imposes any liability upon him or his the person sentenced, it is presented property. through the officer in charge of the (7) In this section and in Section 433, jail; or the expression "appropriate Government" means.-
(b) where such petition is made by (a) in cases where the sentence is for any other person, it contains a an offence against, or the order declaration that the person sentenced referred to in sub-section (6) is passed is in jail. under, any law relating to a matter to which the executive power of the Union extends, the Central Government ;
(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
Noteworthy it is that Section 401 occurred in Chapter XXIX of the Code of 1898 under the heading "Of Suspensions, Remissions [21] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
and Commutations of Sentences". In the scheme of the Code of 1973, the matters relating to execution, suspension, remission and commutation of sentences, essentially by the appropriate Government, have been compiled in Chapter XXXII of the Code and in its sub-head 'E', are the provisions for "suspension, remission and commutation of sentences". Therein, Section 432 deals with power of the Government to suspend or remit the sentences whereas Section 433 deals with its powers to commute sentences and Section 433A puts restriction on such powers of remission or commutation in certain specific cases.
The matters relating to appeal, reference and revision were contained in Part VII of the Code of 1898; and therein, Chapter XXXI contained the provisions relating to the appeals; and therein, Section 426 was for suspension of sentence pending appeal. In the Code of 1973, the provisions regarding appeals are contained in Chapter XXIX and therein, Section 389 carries similar provisions of suspension of sentence pending the appeal. The provisions as contained in Section 426 of the Code of 1898 and those in Section 389 of the Code of 1973 are also put in juxtaposition for ready reference as under: -
Section 426 of the Code of 1898 Section 389 of the Code of 1973
426. Suspension of sentence 389. Suspension of sentence pending appeals.Release of pending the appeal; release of appellant on bail.- (1) Pending any appellant on bail.- (1) Pending any appeal by a convicted person, the appeal by a convicted person, the Appellate court may, for reasons to be Appellate Court may, for reasons to be recorded by it in writing, order, that the recorded by it in writing, order that the execution of the sentence or order execution of the sentence or order appealed against be suspended and, appealed against be suspended and, also, if he is in confinement, that he be also, if he is in confinement, that he be released on bail or on his own bond. released on bail, or on his own bond.
(2) The power conferred by this (2)The power conferred by this section section on an Appellate Court may be on an Appellate Court may be exercised also by the High Court in the exercised also by the High Court in the [22] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
case of any appeal by a convicted case of an appeal by a convicted person to a Court subordinate thereto. person to a Court subordinate thereto. (2A) When any person other than a (3)Where the convicted person person convicted of a non-bailable satisfies the Court by which he is offence is sentenced to imprisonment convicted that he intends to present an by a Court, and an appeal lies from appeal, the Court shall,- that sentence, the Court may, if the (i) where such person, being on bail, is convicted person satisfies the Court sentenced to imprisonment for a term that he intends to present an appeal, not exceeding three years, or order that be released on bail, for a (ii) where the offence of which such period sufficient in the opinion of the person has been convicted is a bailable Court to enable him to present the one, and he is on bail, order that the appeal and obtain the orders of the convicted person be released on bail, Appellate Court under sub-section (1) unless there are special reasons for and the sentence of imprisonment refusing bail, for such period as will shall, so long as he is so released on afford sufficient time to present the bail, be deemed to be suspended. appeal and obtain the order of the (2B) Where a High Court is satisfied Appellate Court under sub-section (1), that a convicted person has been and the sentence of imprisonment granted special leave to appeal to the shall, so long as he is so released on Supreme Court against any sentence bail, be deemed to be suspended. which the High Court has imposed or (4) When the appellant is ultimately maintained, the High Court may, if it so sentenced to imprisonment for a term thinks fit, order that pending the appeal or to imprisonment for life, the time the sentence or order appealed against during which he is so released shall be be suspended, and also, if such person excluded in computing the term for is in confinement, that he be released which he is so sentenced. on bail.
(3) When the appellant is ultimately sentenced to imprisonment, or imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.
THE RATIO AND PRINCIPLES FROM K.M. NANAVATI'S CASE From what has been noticed hereinabove this much is apparent that the Constitution Bench decision in K.M. Nanavati's case has formed the foundation of the view in Umesh Kumar Singh's case that pending the appeal against conviction in Court, the power of parole cannot be exercised by the executive. Significantly, the decision in Nanavati's case was referred in Bhanwar Lal Godara's case too, even while taking the opposite view. A great deal of arguments has been advanced by the learned members of the Bar [23] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
supporting the view taken in Bhanwar Lal Godara that Nanavati's case has no application to the question at hands. It is, therefore, necessary to have a close look at the decision in Nanavati's case.
In Nanavati's case, the questions before the Constitution Bench of the Hon'ble Supreme Court were about the content and scope of the power conferred on the Governor of the State under Article 161 of the Constitution of India; and as to whether the power of suspension of sentence under Article 161 could be exercised during the time the matter is sub judice in the Supreme Court and Article 142 is in operation. The questions arose in the backdrop of somewhat peculiar circumstances. The petitioner before the Supreme Court, who was an officer of Indian Navy and was Second in Command of INS Mysore which came to Bombay in the beginning in the March 1959, was arrested on 27.04.1959 in connection with a charge for offence under Section 302 IPC. He was remanded to Police custody but later on, was detained in Naval custody. The petitioner was put on trial where the jury returned a verdict of 'not guilty'. The Sessions Judge, however, made a reference to the High Court while disagreeing with the verdict of the jury. The High Court accepted the reference, convicted the petitioner under Section 302 IPC, and sentenced him to imprisonment for life by its judgment and order dated 11.03.1960. On the same day, however, the Governor of Bombay passed the following order:
" In exercise of the powers conferred on me by Article 161 of the Constitution of India, I, Shri Prakasa, Governor of Bombay, am Pleased hereby to suspend the sentence passed by the High Court of Bombay on Commander K. M. Nanavati in Sessions Case No. 22 of IVth Sessions of 1959 until the appeal intended to be filed by him in the Supreme Court against his conviction and sentence is [24] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
disposed of and subject meanwhile to the conditions that he shall be detained in the Naval Jail Custody in I. N. S. Kunjali."
On the other hand, pursuant to the order of the High Court, the Sessions Judge issued a warrant of arrest of the accused which was returned unserved in view of the above order of Governor suspending the sentence. In the meantime, an application for leave to appeal was made and the matter was fixed in the High Court for hearing on 14.03.1960. However, when the matter was placed before the Division Bench, with reference to the unexecuted warrant, it was referred to a Larger Bench. Ultimately, the High Court came to the conclusion that the order passed by the Governor was not invalid. A contention was also raised that the order of the Governor could not affect the power of the Supreme Court, particularly with reference to Rule 5 of Order XXI of the Rules of Supreme Court that read as under:-
"Where the petitioner has been sentenced to a term of imprisonment, the petition shall state whether the petitioner has surrendered. Unless the Court otherwise orders, the petition shall not be posted for hearing until the petitioner has surrendered to his sentence."
The High Court, however, said that the sentence passed upon the accused having been suspended, it was not necessary for him to surrender to his sentence; and Order XXI Rule 5 of the Supreme Court Rules would not apply to the case. The High Court ordered that the warrant should not be re-issued until the appeal to be filed in Supreme Court had been disposed of and unless the order made by the Governor was cancelled or withdrawn before that event.
The petitioner filed the petition for Special Leave to the [25] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
Supreme Court on 20.04.1960 and also made an application seeking exemption from compliance of Order XXI Rule 5 ibid. In these circumstances, the question cropped up before the Bench hearing the petition for Special Leave about the scope and extent of the powers of the Governor under Article 161 of the Constitution of India and hence, the matter was referred to the Constitution Bench.
The Hon'ble Constitution Bench of the Apex Court referred to the variety of the arguments advanced and to the arenas in which the functions of the State are being exercised inasmuch as the laws are enacted by the Parliament; executive power vests in the members of the Government; and the judicial power is vested in the judiciary. The Hon'ble Court, thereafter, briefly referred to the history of the genesis and development of the prerogative of pardon but then, limited its consideration to the narrow point falling for consideration while setting the outlines in the following:-
"11. We have thus briefly set out the history of the genesis and development of the Royal prerogative of Mercy because Mr. Seervai has strongly emphasised that the Royal Prerogative of Mercy is wide and absolute, and can be exercised at any time. Very elaborate arguments were addressed by him before us on this aspect of the matter and several English and American decisions were cited. In so far as his argument was that the power to suspend the sentence is a part of the larger power of granting pardon it may be relevant to consider incidentally the scope and extent of the said larger power; but, as we shall presently point out, the controversy raised by the present petition lies within a very narrow compass; and so concentration on the wide and absolute character of the power to grant pardon and overemphasis on judicial decisions which deal directly with the said question would not be very helpful for our present purpose. In face we apprehend that entering into an elaborate discussion about the scope and effect of the said larger power, in the light of relevant judicial decisions, is likely to create confusion and to distract attention from the essential features of the very narrow point that falls to be considered in the present case. That is why we do not propose to enter into a discussion of the said topic or to refer to the several decisions cited under that topic."[26]
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The Hon'ble Court, thereafter, proceeded to consider the provisions contained in the Code of Criminal Procedure, 1898, particularly as regards suspension and commutation of sentences, as also Articles 72 and 161 of the Constitution of India conferring the powers of pardons, reprieves, respites or remissions of punishment or of suspending, remitting or commuting the sentences, respectively in the President of India and the Governor of State. The Hon'ble Court also referred to the provisions of Article 142 as regards the power of the Supreme Court to make such orders as necessary for doing complete justice and to enforce its orders. The Court also referred to Rule 5 of Order XXI of its Rules framed under Article 145 of the Constitution; and also referred to the powers of the Court under Section 426 of Cr.P.C., 1898 for suspension of sentence during appeal and then, precisely formulated the question in the following:
"16. This immediately raises the question of the extent of the power under S. 401 of the Code with respect to suspension as compared with the powers of the Court under S. 426, which enables the Court pending appeal to suspend the sentence or to release the appellant on bail. It will be seen from the language of S.426 of the Code of Criminal Procedure dealing with the power of the appellate court that, for reasons to be recorded in writing, the court may order that the execution of the sentence be suspended or that if the accused is in confinement he may be released on bail or on his own bond. Section 401 occurs in Chapter XXIX, headed "Of suspensions, remissions and commutations of sentences". This Chapter, therefore, does not deal with all the powers vested in the Governor under Art. 161 of the Constitution, but only with some of them. Section 426 is in Chapter XXXI, headed as "Of appeal, reference and revision". Section 426, therefore, deals specifically with a situation in which an appeal is pending and the appellate court has seisin of the case and is thus entitled to pass such orders as it thinks fit and proper to suspend a sentence. It will thus be seen that whereas Chapter XXIX, in which S.401 occurs, deals with [27] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
a situation in which pendency of an appeal is not envisaged, S.426 deals with a situation in which pendency of an appeal is postulated. In other words, Chapter XXIX deals with persons sentenced to punishment for an offence simpliciter in general terms, whereas S.426 deals with a special case and therefore must be out of the operation of S. 401. But it has been vehemently argued by the learned Advocate General that the words "at any time" indicate that the power conferred by S. 401 may be exercised without any limitation of time. In the context of S. 401 "any time"
can only mean after conviction. It cannot mean before conviction, because there cannot be any sentence before conviction. The question then is: "Does it cover the entire period after the order of conviction and sentence even when an appeal is pending in the appellate court and S. 426 can be availed of by the appellant ?"
The Hon'ble Constitution Bench of the Supreme Court thereafter proceeded to harmonize the operation of the relevant provisions of Code of 1898 i.e., Section 426 on one hand and Section 401 on the other; and stated the principles as follows:
"17. It will be seen that S. 426 is as unfettered by other provisions of the code as S. 401 with this difference that powers under S. 426 can only be exercised by an appellate court pending an appeal. When both the provisions are thus unfettered, they have to be harmonised so that there may be no conflict between them. They can be harmonised without any difficulty, if S. 426 is held to deal with a special case restricted to the period while the appeal is pending before an appellate court while S. 401 deals with the remainder of the period after conviction. We see no difficulty in adopting this interpretation nor is there any diminution of powers conferred on the executive by S. 401 by this interpretation. The words "at any time"
emphasise that the power under S. 401 can be exercised without limit of time, but they do not necessarily lead to the inference that this power can also be exercised while the court is seized of the same matter under S. 426."
(emphasis supplied) The Hon'ble Constitution Bench, thereafter, considered the interplay of the powers of the Governor under Article 161 of the Constitution and of the Supreme Court under Article 142 of the Constitution; and laid down the law in no uncertain terms in the following:-
"21. In the present case, the question is limited to the [28] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
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. It 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. So 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 provisions 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."
(emphasis supplied) It is of course, true that after the aforementioned discussion, the Hon'ble Supreme Court essentially considered the matter of balance between Article 161 and 142 and ruled as under:
"25. As a result of these considerations we have come to the conclusion that the order of the Governor granting suspension of the sentence could only operate until the matter became sub judice in this Court on the filing of the petition for special leave to appeal. After the filing of such a petition this Court was seized of the case which would be [29] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
dealt with by it in accordance with law. It would then be for this Court, when moved in that behalf, either to apply R. 5 of 0. XXI or to exempt the petitioner from the operation of that rule. It would be for this Court to pass such orders as it thought fit as to whether the petitioner should be granted bail or should surrender to his sentence or to pass such other or further order as this Court might deem fit in all the circumstances of the case. It follows from what has been said that the Governor had no power to grant the suspension of sentence for the period during which the matter was sub judice in this Court."
THE PRINCIPLES IN K.M.NANAVATI COVER WHOLE OF THE ISSUE AT HANDS As we have already noticed, on essential features relevant for the present purpose, Section 401 of the Code of 1898 is equivalent to Section 432 of the Code of 1973; and Section 426 of the Code of 1898 is equivalent to Section 389 of the Code of 1973. Thus, the law declared by the Hon'ble Supreme Court in the foregoing passages in K.M.Nanavati's case, when to be applied for the purpose of the Code of 1973, Section 432 (of the Code of 1973) could be read in place of Section 401 (of the Code of 1898); and Section 389 (of the Code of 1973) could be read in place of Section 426 (of the Code of 1898). The dictum of the Hon'ble Supreme Court, coming out of Nanavati's case, in our view could be understood, explicit and clear, in the following lines with clarification about the present provisions of the Code of 1973. The Supreme Court has ruled:
".....So 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 (i.e., of Ss.432 and 389 of Code of 1973) and Arts. 142 and 161 of the Constitution."
( italicized words in parenthesis supplied) The Hon'ble Supreme Court has harmonized the two provisions dealing with the powers of the executive and those of the [30] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
judiciary as regards the matters concerning the convicts in the following:-
"..... They can be harmonised without any difficulty, if S. 426 (Section 389 of Code of 1973) is held to deal with a special case restricted to the period while the appeal is pending before an appellate court while S. 401(Section 432 of the Code of 1973) deals with the remainder of the period after conviction.
.... .... .... ....
".....what is covered by Section 426 (Section 389 of Code of 1973) is not covered by Section 401 (Section 432 of the Code of 1973)."
( italicized words in parenthesis supplied) In our view, with the abovementioned enunciation by the Hon'ble Supreme Court, there remains nothing to doubt that howsoever wide might be the expanse of the power of the executive under Section 432 of the Code of 1973, it cannot be exercised while the Court is seized of the same matter. Section 389 of the Code of 1973 deals with the period until the appeal is pending before an appellate Court; and Section 432 deals with the remainder of the period after conviction and when the appeal is not pending.
Now, the Rules of 1958 have been framed precisely under sub-Section (6) of Section 401 of the Code of Criminal Procedure, 1898 (equivalent to Section 432 of the Code of 1973). Therefore, whatever is the name given to the indulgence granted to the convict under the Rules of 1958, the source of such a power has to be traced to Section 432 Cr.P.C., 1973 only; and for this, the dictum of the Supreme Court is clear that the same cannot be exercised so long the matter is in the seizin of the Court.
Much has been sought to be suggested that in Nanavati's case, the question before the Supreme Court was only as to whether [31] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
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; and, therefore, this decision does not apply to the question at hands about the power of grant of parole. The argument, in our view, has several shortcomings.
In the first place, it could be noticed clearly that Article 161 of the Constitution in fact occurs in Chapter II of Part VI of the Constitution of India providing for the executive power of the States; and therein, Article 161 confers plenary powers on the Governor to grant pardons and to suspend, remit or commute sentences. With respect, we are clearly of the view that what has been laid down by the Hon'ble Supreme Court in respect of the power of the Governor under Article 161 of the Constitution of India that the same could be exercised until the matter is not sub judice before the Court, applies with greater force on the powers of the State Government under Section 432 of the Code of 1973. It follows rather as a necessary consequence that such powers of the State Government under Section 432 can be exercised only so long the matter is not sub judice in the Court.
Secondly, the scope of powers under the relevant provisions of the Code of Criminal Procedure directly arose for consideration; or at any rate, it was an innate issue, which was considered and pronounced upon by the Hon'ble Supreme Court. The issue arose precisely in the circumstances that the Governor's order was likely to interfere or meddle with the exercise of jurisdiction by the Hon'ble [32] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
Supreme Court; and that was held impermissible. In all its parameters and features, the decision in K.M. Nanavati relates to the question at hands and the answer therein, in our view, governs the entire field.
Though as observed hereinabove, pronouncement on law by the Hon'ble Supreme Court in K.M. Nanavati is directly applicable to the case at hands but, even if it be assumed for the sake of hyper- technical argument that the scope of particular statutory provision was not as such before the Hon'ble Supreme Court and even if it be assumed that what the Hon'ble Supreme Court has said in K.M. Nanavati's case as regards the provisions of the Code of Criminal Procedure is in the nature of obiter-dictum (though such assumptions would not be justified as noticed above), we have no hesitation in repelling such arguments too with a simple reference to the fundamental principle that even an obiter of the Hon'ble Supreme Court is required to be followed and obeyed [vide observations in paragraph 17 in Sarwan Singh Lamba & Ors. Vs. UOI & Ors : (1995) 4 SCC 546].
Thus, respectfully following the dictum in Nanavati, we are clearly of the view that the answer to the referred question is in the negative.
In view of the above and to the extent indicated, we respectfully concur with the observations of the Division Bench in Umesh Kumar Singh's case. So far the decision in Bhanwar Lal Godara's case is concerned, it does not stand in conformity with the Constitution Bench decision in K.M.Nanavati; and hence, cannot be [33] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
said to be that of correct proposition of law.
A close look at the decision of Bhanwar Lal Godara's case gives out that the Division Bench though referred to several of the decisions but essentially to consider the basic connotation of the term 'parole' and 'suspension of sentence'. Then, the observations of the Hon'ble Supreme Court in paragraph-21 of the decision in K.M.Nanavati was, of course, reproduced and an emphasis was also supplied on the relevant part thereof but then, difficult it is to find if the Division Bench discussed the meaning and purport of such part of the observations of the Constitution Bench decision. The decision in Bhanwar Lal Godara's case, on the core question which the Bench entered into, appears to be rather an assumptive one and does not appear to have been rendered with due application of the principles emanating from K.M.Nanavati's case. For the very same basic reasons, the decision in Gani Khan's case, rendered by another Division Bench after following Bhanwar Lal Godara, cannot be held correct.
Other submissions and aspects Though certain suggestions have been made before us that the power of suspension under Section 432 does not contradict the power of suspension under Section 389 Cr.P.C.; and such power of suspension could be exercised by the executive despite the sentence having not been suspended by the Court, with respect, we can only reject such arguments in the face of the dictum in Nanavati's case.
[34]
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Another line of suggestions before us had been that the power of grant of parole is entirely different and may be exercised irrespective and independent of Section 432 Cr.P.C. This much of broad but uncertain line of argument brings no result. It is for the simple reason, as already stated, that the Rules of 1958 have been framed under Section 401 (6) of the Code of Criminal Procedure, 1898 [equivalent to Section 432 (5) of the Code of 1973]. Therefore, the indulgence granted to the convict under the Rules of 1958 is the one in exercise of the powers under Section 432 Cr.P.C., 1973 only; and, as noticed, Section 432 Cr.P.C.,1973 cannot be applied so long the matter is in the seizin of the Court. For these very reasons, the reference to the Rajasthan Prisoners Act, 1960 turns out to be rather misplaced. The Rules of 1958 have not been promulgated under the provisions of the Rajasthan Prisoners Act, 1960. The question in the present reference before us is precisely and only about the operation of the said Rules of 1958.
Some deal of arguments by the learned members of the Bar had been with reference to another Constitution Bench judgment of the Hon'ble Supreme Court in Sunil Fulchand Shah Vs. Union of India & Ors.: (2000) 3 SCC 409. However, the questions before the Hon'ble Constitution Bench therein were entirely different and related to the matter of preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The questions had been about the computation of the period of detention and the treatment of the period during which the detenue was released on parole. It was in the given context, the [35] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
connotations of 'parole' and 'bail' were dilated upon and explained by the Hon'ble Court. It was observed that there were no statutory provisions dealing with the question of grant of parole; and grant of parole is usually regulated by administrative instructions and the rules framed in various States. In the ultimate analysis, the Hon'ble Constitution Bench of the Supreme Court held that parole does not suspend the sentence or the period of detention but provides conditional release and changes the mode of undergoing sentence. We do not find the decision in Sunil Fulchand Shah's case having any bearing on the question before us. Similarly, the historical concept of parole, as explained in Poonam Lata Vs. M.L.Wadhawa & Ors.: (1987) 3 SCC 347, does not supply an answer to the question before us.
The learned counsel have also referred to the decision in State of Haryana Vs. Nauratta Singh & Ors.: (2000) 3 SCC 514. Nauratta Singh, in fact, had been a matter arising out of the situation where the claim made by the convicted prisoner, of entitlement to remission of the period during which he was on bail under the orders of the Court, was upheld by the Hon'ble Punjab and Haryana High Court. The Hon'ble Supreme Court disapproved the decision of the High Court and in the context, also explained as to how remission operates in the following:-
"12. Section 432 of the Code of Criminal Procedure falls within Chapter XXXII, which contains provisions regarding "execution, suspension, remission and commutation of sentences". Sub-sec- tion (1) of Section 432 empowers the appropriate Government to "suspend the execution of the sentence" or remit "the punishment to which he has been sentenced". The sub-section reads thus:[36]
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"432.When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced."
13. Suspension of a sentence is obviously different from remission of any part of the punishment to which a person is sentenced. While Section 432 of the Code deals with power of the Govern- ment to suspend the sentence, Section 389 of the Code deals with power of the court to suspend execution of sentence pending ap- peal or revision. Whenever the sentence is suspended by the court the convict is entitled to be released on bail. The expression used in Section 432(1) of the Code for remission is "remit.... the punishment to which he has been sentenced". It is, therefore, clear that remission can be granted only with reference to an oper- ative punishment. In other words, when there is no operative pun- ishment there is no need to remit any part of such punishment." "14. Parole is defined in Blacks Law Dictionary, as "a conditional release of a prisoner, generally under supervision of a parole offi- cer, who has served part of the term for which he was sentenced to prison". Parole relates to executive action taken after the door has been closed on a convict. During parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also."
(emphasis supplied) The said decision too is of no assistance to the arguments advanced on behalf of the petitioner. Even therein, the Hon'ble Supreme Court has observed that parole relates to an executive action, which is taken after the door has been closed on a convict. In essence, we respectfully find that such observations relate to the principles laid down in K.M.Nanavati's case, as noticed hereinbefore.
So far the decision of the Hon'ble Supreme Court in Dadu alias Tulsidas etc. Vs. State of Maharashtra: (2000) 8 SCC 437 is concerned, the issue therein was about the constitutional validity of Section 32-A of the Narcotic Drugs and Psychotropic Substances Act, 1985. It was argued that taking away the judicial power of the Appellate court to suspend the sentence despite the appeal meriting [37] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
admission render the substantive right of appeal illusory and ineffective. It was also argued that prohibition of suspension precludes the executive even from granting parole to a convict which he is otherwise entitled to under the prevalent Statutes, Jail Manual or Government Instructions issued in that behalf. The Hon'ble Supreme Court found the argument as regards non-availability of parole to be rather misplaced and pointed out,-
"6. Parole is not a suspension of the sentence. The convict con- tinues to be serving the sentence despite granting of parole under the Statute, Rules, Jail Manual or the Government orders. "Parole"
means the release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from jail, prison or other intern- ment after actually been in jail serving part of sentence.
7. Grant of parole is essentially an Executive function to be exer- cised within the limits prescribed in that behalf. It would not be open to the court to reduce the period of detention by admitting a detenue or convict on parole. Court cannot substitute the period of detention either by abridging or enlarging it......" The Hon'ble Supreme Court also referred to the decision in Sunil Fulchand Shah's case and concluded on the point of parole as under:-
"11. It is thus clear that parole did not amount to the suspen- sion, remission or commutation of sentences which could be with- held under the garb of S. 32-A of the Act. Notwithstanding the pro- visions of the offending S.32-A, a convict is entitled to parole, sub- ject, however, to the conditions governing the grant of it under the statute, if any, or the Jail Manual or the Government Instructions. The Writ Petition No.169 of 1999 apparently appears to be mis- conceived and filed in a hurry without approaching the appropriate authority for the grant of relief in accordance with jail manual appli- cable in the matter".
On the issue about validity of Section 32-A, the Hon'ble Supreme Court ultimately held that Section 32-A did not in any way affect the powers of the authorities to grant parole. Section 32-A was, however, held unconstitutional to the extent it took away the [38] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
right of the Court to suspend the sentence of a convict under the Act. However, it was observed that suspension could be ordered by the Appellate Court strictly subject to the conditions spelt out in Section 37 of the Act. We do not find the said decision making out any case in favour of the petitioners.
The Constitution Bench decision in Maru Ram Vs. Union of India & Ors.: (1981) 1 SCC 107 was rendered on the question of validity of Section 433-A inserted to the Cr.P.C., 1973 by the Amendment Act of 1978. The expositions in Maru Ram's case as regards the constitutional validity of Section 433-A; nature and scope of non-obstante clause therein; prospectivity of its operation; the provision not affecting the powers under Article 72 or Article 161 of the Constitution; that the executive powers must not be exercised arbitrarily or mala fide and must obey the guidelines made in conformity with the constitutional mandates and manifest purpose of the powers; and that Section 433-A does not ban the power of parole, in our view, again, do not have a bearing on the matter in issue before us. As already discussed, the question herein stands fully covered and answered by the dictum in K.M.Nanavati's case.
We may also observe that a Full Bench decision of the Hon'ble Bombay High Court in S.Sant Singh Vs. Secretary, Home Department, Government of Maharashtra & Ors.: 2006 Cr.L.J. 1515 has also been referred by the learned counsel appearing before us. The said decision has been considered in great detail by the Division Bench in Umesh Kumar Singh's case too and ultimately the Bench had distinguished the same in the portion appearing in paragraph 28 [39] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
of the report, as reproduced hereinbefore. However, we do not propose to deal with the decision in S.Sant Singh's case either way because so far the question before us is concerned, when the same is found fully answered by the Constitution Bench decision in K.M.Nanavati, nothing contra could be considered to be any exposition of binding nature. The fundamental difference, however, remains that powers which are being exercised by the State Government under the Rules of 1958 are the powers conferred by Sub-section (6) of Section 401 of the Code of 1898 (equivalent to Section 432 of the Code of 1973) whereas in S.Sant Singh's case, the powers exercised by the Government had been under the Prisons (Bombay Furlough and Parole) Rules framed under the Prisons Act, 1894. The question about any such powers under the Prisons Act is left open by us in the present matter because, as commented at the outset, the reference is being considered on the narrow point referred viz., as regards exercise of powers under the Parole Rules of 1958 by the State Government in Rajasthan and not beyond; and because, as noticed, the Rules of 1958 have been framed for exercise of powers conferred by Sub-section (6) of Section 401 of the Code of 1898 (equivalent to Section 432 of the Code of 1973).
We may also refer to a decision of Hon'ble Delhi High Court in the case of Rajesh Kumar Vs. Govt. of NCT of Delhi: 2012(2) Crimes 281 (Del.). Therein, the Hon'ble Court considered Clause 10 of Parole/Furlough Guidelines, 2010 as applicable to the concerned State. Such clause provides that parole would not be granted when [40] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
appeal of a convict is pending before the High Court. The Hon'ble Delhi High Court found nothing of invalidity in such a clause and, for its views, relied upon the decision in K.M.Nanavati while reiterating the principle that the period when the Court is in seizin of the case, any other executive authority ought not to be allowed to pass any order with respect to what the Court is seized of. The Hon'ble Delhi High Court said,-
"8. We are of the view that the period when the Court is in seisin of the case, any other executive authority ought not to be allowed to pass any order with respect to what the Court is seized of. We, in this regard are guided by K.M. Nanavati Vs. State of Bombay AIR 1961 SC 112, which was concerned with the exercise of power by the Executive to suspend the sentence during the pendency of the matter before the Supreme Court. It was held that suspension of the sentence when the Supreme Court was in seisin of the case could have been granted by the Supreme Court itself and if in respect of the same period the Executive were also to be held to have the power to suspend 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 which could not have been intended."
The Delhi High Court in the said decision in Rajesh Kumar rather stated its disagreement with the views as expressed by the Hon'ble Bombay High Court in S.Sant Singh's case. As already observed and noticed, for the question before us and the applicable provisions, this aspect does not require any further dilatation.
In some lines of submissions before us, the assumed hardship of the accused persons was also sought to be projected with reference to the fact that disposal of appeals tend to take longer time. We do not feel persuaded with such submissions. It is again for the simple reason that when the appeal is pending, the Court can always be approached for appropriate relief under Section 389 of the Code of 1973.
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As noticed, the crux of the matter is that the executive cannot exercise the powers under Section 432 Cr.P.C., 1973 so long the judiciary can exercise the powers under Section 389 Cr.P.C.1973; and the Rules of 1958 being for exercise of powers under Section 432 ibid., they cannot be operated so long an appeal against conviction remains pending where the Court can exercise the powers under Section 389 ibid.
In our view, the question as referred ought to meet with its quietus here only.
Before parting During the course of submissions, an order dated 28.01.2013 as passed in Parole Petition No.18721/2012: Sanjay Jain @ Nawab Vs. State of Rajasthan & Ors., has been brought to our notice wherein another Division Bench of this Court at Jaipur has, again, doubted the correctness of the decision in Umesh Kumar Singh and has noted the apparent conflict in the decision in Umesh Kumar Singh on one hand and decisions in Bhanwar Lal Godara and Gani Khan on the other. In the said order dated 28.01.2013, the Division Bench of this Court has further proposed for consideration a similar nature question about entitlement of the prisoner-convict to the benefit of the Rules of 1958 even when his appeal against the conviction and sentence is pending.
As already discussed, the direct answer to the question as posed is with reference to the Constitution Bench decision in K.M.Nanavati (supra) and is in the negative. Ordinarily, we would have refrained from dilating any further into the decision in Sanjay [42] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
Jain's case (supra) but, as the observations of the Division Bench occurring therein have a direct co-relation with the question before us, it appears rather necessary to point out that the observations in Sanjay Jain's case are not founded on correct premise.
In Sanjay Jain's case, the Division Bench of this Court referred to various observations in the cases already referred hereinabove and then observed that grant of parole is essentially an executive function; and no such power is available with any Court in any of the provisions of the Code of Criminal Procedure. Thereafter, the Hon'ble Bench observed that the power of the executive to grant parole flows from Section 59(1) (29) of the Prisons Act, 1894 ('the Act of 1894') and then, proceeded to refer to Clauses (29) and (30), purportedly of Sub-section (1) of Section 59 of the Act of 1894; and further referred to Section 58-A, as inserted to the Act of 1894, by the State of Goa, Daman and Diu by the State amendment; and then, also referred to the submissions of the Advocate General that introduction of similar nature State amendment was in the contemplation of the Government of Rajasthan. The Division Bench, however, observed that such an exercise might not be really necessary in view of Clause (29) of Sub-section (1) of Section 59 of the Act of 1894. The Division Bench, then, referred to a few of the decisions of the Hon'ble Supreme Court including that in Tulsiram Patel: (1985) 3 SCC 398, Tihag: (1975) 2 SCC 436, and Pakur Jagran Manch: (2011) 2 SCC 591 to observe that 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 [43] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
would not vitiate the order; and that mere mentioning of a wrong provision will not by itself render an order of the Government invalid or illegal if the Government had the power under an appropriate provision. The Division Bench proceeded on the premise that while promulgating the Rules of 1958, the State Government made a wrong reference as to its source of power under Sub-section (6) of Section 401 Cr.P.C. 1898 (equivalent to Section 432 Cr.P.C. of 1973). The relevant parts of the observations are reproduced hereunder for ready reference:-
"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 [44] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
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." With respect, it appears necessary to point out two obvious shortcomings in the observations above. The first and foremost is that Clauses (29) and (30) in Section 59(1) of the Act of 1894, as purportedly read by the learned Division Bench are, in fact, the clauses inserted simultaneously with Section 58-A by the State amendment in the State of Goa, Daman and Diu, by Act No.5 of 1968. Clauses (29) and (30) of Sub-section (1) of Section 59, as reproduced by the Division Bench are not the part of the principal provisions in the Act of 1894. Thus, it is difficult to trace the source of power for the Rules of 1958 to any of the power in the Prisons Act, [45] Larger Bench Civil Reference No.1/2013 Ramesh Kumar Vs. State of Rajasthan & Ors.
1894, as applicable in the State of Rajasthan.
Secondly, the principles in Tulsiram Patel, Tihag, Pakur Jagran Manch (supra) and other cases essentially relate to exercise of executive power by the State functionaries; and wrong mentioning or even non-mentioning of the provisions in or under which the power is being exercised. With respect, rule making power is essentially a legislative function and not merely an executive fiat where the description of the source of power may not have relevance.
The Rules of 1958 have consciously been framed by the State Government under the provisions of Code of Criminal Procedure, 1898; and precisely with reference to Sub-section (6) of Section 401 [pari materia to Section 432 of the Code of Criminal Procedure, 1973]. The Rules of 1958, thus, in our opinion, have to be read, understood and interpreted with reference to the provisions under which they have been promulgated; and it is impermissible to take as if the rules framed under a particular provision of a particular statute could be read to have been made under any other provision of any other statute. As noticed, such powers, as were available in the State of Goa, Daman and Diu per the State Amendment Act with insertion of Section 58-A and Clauses (29) and (30) to Section 59(1) of the Act of 1894, are not seen available in the State of Rajasthan. Thus, another facet sought to be given by another Division Bench of this Court to suggest that the decision in Bhanwar Lal Godara is correct and Umesh Kumar Singh is wrong, does not appear well founded.
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We may, in the passing, point out that to the extent the rules could have been framed under the Act of 1894, they were indeed framed by the State Government in Rajasthan. The Parole Rules of 1958 were framed under the notification dated 20.12.1958. However, by a notification dated 17.12.1958, the Rajasthan Prisons (Shortening of Sentences) Rules, 1958 were framed precisely under clause (5) of Section 59 of the Act of 1894. It is difficult to agree on the assumption that in framing of the Parole Rules of 1958, there had been any wrong mention of the source of power when they were framed in exercise of the powers conferred on the Government by Section 401 (6) of the Code of 1898. It may also be noticed that even the Central Government framed its Parole Rules of 1955 by a notification dated 09.11.1955 only under the said Section 401 (6) of the Code of 1898. Therefore, with respect, the observations made in Sanjay Jain's case do not appear to be founded on correct premise.
CONCLUSION Accordingly and in view of the above, the answer of this Bench to the question of law referred for adjudication is in the negative. In other words, the right of an accused/prisoner/convict to be released on parole cannot be considered by the State Government under the provisions of the Rajasthan Prisoners Release on Parole Rules, 1958 during the pendency of any appeal filed by him/her against his/her conviction.
(Sandeep Mehta), J. (R.S.Chauhan),J. (Dinesh Maheshwari),J. [47]
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MK