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7. This is the normal parole to which each prisoner is entitled and as soon as he becomes eligible on completion of one-fourth of his sentence including remission, he is entitled to 20, 30 and 40 days parole every year respectively and even thereafter in case he is not released on permanent parole, he is entitled for parole of 40 days every year. It may be mentioned here that this rule shall be subject to Section 433A Cr.P.C. Permanent parole to a person sentenced to life imprisonment after December 1978 for an offence which is also punishable with death can be granted only after he has undergone 14 years of actual imprisonment. However, he would be entitled to regular yearly paroles in case the conditions given in Rule 9 of the Parole Rules are fulfilled, after he has completed five years' imprisonment including remission. As under rule 15 of the Parole Rules life sentence has been reckoned as 20 years, hence one-fourth would be five years. Thus, under the rules, a life convict is entitled to parole every year, if other conditions are satisfied, after having undergone five years' sentence including remission.

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.

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.

28. Therefore, the Prisons (Bombay Furlough and Parole) Rules, as amended in the year 1989 had been framed by the State of then Bombay, in exercise of the powers conferred by Clause (5) and (28) of Section 59 of the Prisons Act. More over, unlike the Rajasthan Prisoners (Release on Parole) Rules, 1958, under the Prisons (Bombay Furlough and Parole) (Amendment) Rules, 1989 the period spent on parole shall not be counted as remission of the sentence or sentence served. 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.

29. The Full Bench of the Bombay High Court in the case of S. Sant Singh (supra) has distinguished the decision of the Constitution Bench of the Hon'ble Supreme Court in the case of K.M. Nanavati (supra) from the one before it that the Hon'ble Supreme Court was not considering the power of the competent authority or the government to grant parole but it was considering the powers of the government to suspend/remit the sentence. Firstly, the power of the government or its authority to grant parole, under the rules of Prisoners (Bombay Furlough and Parole) or Rajasthan Prisons (Release on Parole) Rules, 1958 follows from the powers under law exercised by the executive to suspend, remit etc. There cannot be any dispute about the fact that the power of the Government or the competent authority through it, to grant parole or suspend, remit the sentence etc. are powers vested with the executive of which the Governor of the State is the head. As pointed out earlier, under the Rules of the Rajasthan Prisoners (Release on Parole) Rules, 1958 the period of parole is deemed to be remission as it has to be treated as imprisonment served by a prisoner.