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06. Learned Addl. Public Prosecutor for the respondents opposed the petition and urged that the petition be dismissed.

(Judgment) (5) Cri. W.P. No. 01799 of 2017

07. So far as the ground, that the appeal preferred by the petitioner against his conviction and sentence is pending before this Court, same is untenable. As rightly submitted by the learned Counsel for the petitioner, filing of an appeal is a statutory right of the convict. It has no nexus with grant or rejection of furlough leave. So also, ratio of the judgment of this Court in the case of Smt. Rubina Suleman Memon (supra) is not applicable to the facts of the present case. In the said case, the convict was undergoing sentence for conviction under the provisions of Terrorist and Destructive Activities Act, 1987, and rigors of the notification dated 23.02.2012, more particularly, Sub-Rule 13 of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959, were fully applicable to the petitioner therein. Such is not the case of the present petitioner. The petitioner is not suffering punishment for any act under the provisions of TADA. The last ground, that there is no recommendation of Jail Superintendent, is also not tenable. The leave sanctioning authority can suo motu call for recommendation or otherwise from the Jail Superintendent.

"26. The provisions of law clearly disclose that once a person is convicted and sentence is imposed by the Court, (Judgment) (7) Cri. W.P. No. 01799 of 2017 and such person is sent to jail as a prisoner the execution of the sentence imposed upon him is to be done by the appropriate Government in accordance with the rules framed in that regard. Once a person is in prison he would be governed by the Prisons Act, and the Rules framed thereunder. The Prison Rules clearly provide for grant of parole. It is for the Competent Authority or the Government to decide as to whether any Parole for any particular period is to be granted to the convicts undergoing imprisonment period and on the conditions as may be fixed. It is, therefore, clear that merely because a convict prefers an appeal before the Appellate Court, that would not divest the Government of its powers under the Prison Act to deal with the management of the convict by following the rules framed under the said Act.

27. From this, it is clear that the powers of the State to grant Parole are not fettered even if the appeal of the convict is pending before the Court. Thus, the Competent Authority or the Government would have the legal competence to entertain an application for parole by following the procedure set out under the Prison Rules to meet the contingencies stated therein. The exercise of such power would not be in any way be in conflict with the powers exercised under section 389 and/or Section 432 of the Code of Criminal Procedure. It is also evident that the amendments carried out in this scheme of Rules 19 and 25 in the year 1989 have provided for adequate safeguards so as to ensure that the benefit of parole leave is not misused or abused so as to defeat or nullify the Courts order passed under Section 389 of the Code of Criminal Procedure as was noticed in Jayant Veerappa Shetty Vs. State of Maharashtra [1986(1) Bom.C.R.311 = 1986 Cri.L.J. 1298]. "