Document Fragment View

Matching Fragments

2. The applicant of Special Criminal Application No. 1164/94 who was convicted by a competent court u/s 3[3] and 5 of the Terrorists & Disruptive Activities Act, [hereinafter referred as `TADA Act'] preferred an application for parole for a period of 10 days on a humanitarian ground, namely the marriage of his son. It is averred in the petition that on 5/8/94, applications were forwarded to the respondents but respondents have not replied to the petitioner. It is further averred that at last moment if application is rejected, it would not be possible to approach the Court thereafter for obtaining relief as by the time the Additional Public Prosecutor obtains instructions, the petition would become infructuous.

Question No. 2 & 3 ::

Can High Court suspend the sentence of a convict undergoing sentence under TADA Act by issuance of writ under Article 226 and 227 or can release the convict in view of the Supreme Court judgement?

12. So far as the question No. 2 with regard to exercise of writ jurisdiction under Articles 226 and 227 for suspending the sentence by granting parole, furlough or bail to a convict of an offence under the TADA Act is concerned, as the High Court has no jurisdiction to hear the appeal under the provisions of the TADA Act, ordinarily the High Court should not exercise its writ jurisdiction under Articles 226 and 227 of the Constitution of India to suspend the sentence of a convict under TADA Act. It is also required to be noted that the appeal of a convict under TADA Act against the order of conviction and sentence is to be lodged before the Apex Court and therefore, powers under section 389[1] of the Criminal Procedure Code cannot be exercised by the High Court. Therefore, during the pendency of the appeal preferred by convict before the Apex Court, the High Court will have no jurisdiction to entertain the application for suspension of sentence.

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 :-

38. Once these two questions are answered as per para 28 of this judgment (Hon'ble B.C.Patel, J.) that the High Court in exercise of its writ jurisdiction under Articles 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, it requires little elaboration as to possibly what could be those exceptional or extraordinary cases warranting exercise of this power by the High Court in such matters. While referring these questions, a specific reference was made to the case of Usmanbhai Dawoodbhai, reported in AIR 1988 SC 922 and Kartar Singh reported in 1994(2) JT 423 by my Lord Hon'ble B.N.Kirpal, Chief Justice of this Court as he then was and Hon'ble R.K.Abichandani, J. So far as the decision in Usmanbhai Dawoodbhai's case (supra) is concerned, the contents of para 12 of the judgment as have been quoted in para 17 of this judgment (Hon'ble B.C.Patel, J.) show that the Apex Court had noted the statement which was made by Shri Poti and further that the statement as had been made must necessarily follow that a citizen can always move the High Court under Article 226 or 227 or the Supreme Court under Article 32 challenging the constitutional validity of the Act or its provisions on the ground that they offend against Articles 14, 21 and 22 or on the ground that a notification issued by the Central Government or the State Government under Section 9(1) of the Act constituting a Designated Court for any area or areas or for such case or class or group of cases as specified in the notification was a fraud on powers and thus constitutionally invalid, covers only the cases as mentioned above. However, it does not include the cases with regard to suspension of sentence for granting parole, furlough or bail to an accused convicted of an offence under TADA. In the other decision of the Supreme Court in Kartar Singh's case, i.e. reported in 1994 (2) JT 423 in para 388 (Hon'ble S.Ratnavel Pandian majority opinion) which has been quoted in para 25 of this judgment (Hon'ble B.C.Patel, J.), the Supreme Court has observed that if the High Courts entertain bail applications invoking their extraordinary jurisdiction under Article 226 and pass orders, then the very scheme and object of the Act and the intendment of the Parliament would be completely defeated and frustrated, but at the same time, it cannot be said that the High Courts have no jurisdiction. It has been further observed with emphasis that the judicial discipline and Comity of the Courts require that the High Courts should refrain from exercising their jurisdiction in entertaining bail applications in respect of an accused indicted under the Special Act since the Supreme Court has jurisdiction to interfere and correct the orders of the High Court under Article 136 of the Constitution. In sub-para 16 of para 398 (Hon'ble S.Ratnavel Pandian majority opinion) of the Supreme Court judgment which has been quoted in para 26 of this judgment (Hon'ble B.C.Patel, J.), the Supreme Court while observing that it cannot be said that the High Court has no jurisdiction to entertain an application for bail under Article 226 of the Constitution and pass orders either way relating to the cases under the Act of 1987 has said that, that power should be exercised sparingly and that too only in rare and appropriate cases in extreme circumstances and at the same time it has also been added that, "But the judicial discipline and comity of Courts require that the High Courts should refrain from exercising the extraordinary jurisdiction in such matters." Therefore, the proposition admits of no controversy that so far as the writ jurisdiction of the High Courts under Article 226 and 227 of the Constitution to entertain such applications is concerned, the jurisdiction is there, it is not a closed domain altogether but the caution has been given with regard to exercise of the power and that it should be exercised sparingly and on the principle of judicial discipline and comity of the Courts, the High Court should refrain from exercising the extraordinary jurisdiction in such matters. In this decision of Kartar Singh (supra) the earlier decision in the case of Usmanbhai Dawoodbhai (supra) was also considered in para 161, 162 and para 372 thereof. It is, therefore, clear that the High Court has the jurisdiction to entertain such applications and suspend the sentence of accused convicted under TADA Act, but the question which has been referred is as to whether such exercise should be undertaken by the High Court under Article 226 in view of the observations made in the Supreme Court decision in Kartar Singh's case (supra) and Usmanbhai Dawoodbhai's case (supra). In my opinion, once the jurisdiction under Article 226 is there with the High Court to entertain such applications, the exercise of such jurisdiction may be undertaken by the High Court in appropriate cases only keeping in view the words of caution given by the Supreme Court in Kartar Singh's case (supra). Accordingly, there is no question of exercising this jurisdiction in normal course. The question, therefore, arises as to what are the limits for exercise of such jurisdiction? No doubt, such limits cannot be defined but it can certainly be said that, 'to reach injustice wherever it is and which can't be put to an end in normal course' should be the limit for exercise of such power. In the case of Dwarka Nath v. I.T. Officer, reported in AIR 1966 SC 81 in para 4, the Supreme Court with reference to scope of Art. 226 had observed as under: