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15. When in respect of a convict under TADA Act, the authority exercising powers under the provisions contained in the Bombay [Furlough and Parole] Rules, 1959, refuses to exercise the powers vested in it or exercise the powers on a ground which is not germane or is deciding the application of parole or furlough on the ground which is non est, the High Court can interfere. It is required to be borne in mind that the High Court in exercise of its jurisdiction under Article 226 and 227 of the Constitution of India, is not sitting in appeal over the decision of the competent court or authority. Therefore, when the decision is perverse or is such which no reasonable person could have arrived at, only then the High Court may intervene.

28. In view of what is stated hereinabove, the High Court in exercise of its writ jurisdiction under Article 226 and 227 of the Constitution of India ordinarily cannot suspend the sentence by granting parole, furlough or bail to an accused convicted of an offence under the TADA Act.

Answered accordingly.

Question No.4 ::

Can High Court direct release of convict on parole undergoing sentence, whose appeal is pending before the Court?

29. The Parole can be granted to a convict under Rule 19 of the Prisons [Bombay Furlough and Parole] Rules, 1959, which reads as under :-

31. When the court is hearing the appeal, the Court may be required to consider the application submitted for bail, grounds raised in the application, evidence adduced by the prosecution against the convict, and the reply filed by the State against the application for bail. So far as Authority considering the application under Bombay [Furlough & Parole] Rules 1959 is concerned, it stands on a different footing. The authority exercising the powers is not required to consider the evidence on record, but on satisfying itself by recording statements of some persons residing in the vicinity to the effect that the convict is not likely to cause any harm, the authority has to exercise the discretion of releasing the convict on parole. The authority has to exercise the discretion considering the period for which the convict is required to undergo the sentence, nature of the offence and such other aspects as required to be considered under the Rules while releasing the convict on parole. So far as the powers to pass certain orders in case of a convict is concerned, whose appeal is pending for hearing, the decision in case of K.M. Nanavati v/s State of Bombay reported in AIR 1961 SC 112, is required to be considered. The Apex Court after observing that there was no conflict between the powers conferred on the judiciary and the Governor under Article 161 of the Constitution, held that so long as the judiciary had the powers to pass particular order in a pending case, to that extent, the power of executive will have to be held limited in view of the words either of section 401 [now section 432 of the 1973 Code] and section 426 [now section 389 of 1973 Code]. The Apex Court further held as under :-

32. Thus, powers under the provisions contained in the Bombay [Furlough and Parole] Rules, 1959 cannot be exercised by the executive in favour of a convict undergoing sentence whose appeal is pending before the Court. The Division Bench in case of State of Gujarat v/s Jayantilal M. Patel [1995 - 2 - G.L.H. 260] examined the Scheme of the Bombay [Furlough and Parole] Rules, 1959, and section 389[1] of Criminal Procedure Code. The Division Bench following the decision of the Apex Court in case of K.M. Nanavati [supra] and agreeing with the views of Division Bench of Bombay High Court in case of Jayant Veerappa Shetty v/s State of Maharashtra [1985 Cr.L.R. Maharashtra page 598] held that the power of grant of parole cannot be exercised by the administration where the appeals of convicts concerned are pending and such persons can be released on bail only by the Appellate Court under section 389[1] of the Code of Criminal Procedure and not by the administration. The power of the administration will be exercisable only during the remainder of the period after conviction as held by the Supreme Court in K.M. Nanavati's case [supra]. In our opinion, the Court can order the suspension of execution of sentence or order appealed and can release the convict on bail u/s 389[1] of the Criminal Procedure Code, 1973. This is the only provision empowering the Court to release the convict on bail.