Ramesh Kumar vs State of Rajasthan and Others

Narendra Kumar Jain-II, J.—Heard learned counsel for the parties. Convict-petitioner Ramesh Kumar S/o Dashrath Kumar Khatri, has preferred this parole writ petition, by post, from Central Jail, Bikaner, to grant him permanent parole stating therein that he has already undergone the sentence of imprisonment of about 14 years and 3 months, his conduct in Jail is satisfactory and at present, he is in Open Air Camp, Bichhwal.

A notice to show cause was issued by this Court on 22.08.2012 and in response thereof, the respondents have filed reply to writ petition, wherein, apart from other submissions, it has been submitted that petitioner was convicted and sentenced under Sec. 302 IPC to Imprisonment for Life. Thereafter, he preferred D.B. Criminal Jail Appeal No. 154/2002, which was dismissed by this Court, vide judgment dt. 02.03.2006. Thereafter, the petitioner preferred SLP before the Hon''ble Apex Court, which is pending consideration.

The respondents have further stated that Division Bench of this Court in Umesh Kumar Singh @ Munna Singh Vs. The State of Rajasthan and Others, has taken a view that 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. It is further contended that on the basis of above judgment, the State Government has issued a Circular No. Ba. Sha./Jaipur/112/2012/18324-60, dt. 26.07.2012, whereby it has been directed that prisoners, whose appeals against their conviction are pending consideration, are not entitled to be released on parole.

Mr. Mahesh Bora, learned Senior Counsel, assisted by Mr. K.R. Bhati, Advocate, appearing on behalf of petitioner, submitted that there was already a Judgment of Division Bench of this Court in Bhanwar Lal Godara Vs. State of Rajasthan, wherein it was held that even after rejection of application for suspension of sentence, in pending appeal, an accused has a right to move an application for parole in accordance with the provisions of Rajasthan Prisoners Release on Parole Rules, 1958 (hereinafter referred to as ''the Rules of 1958''). The said judgment was binding on subsequent Division Bench. He submitted that if the subsequent Division Bench, while deciding the case of Umesh Kumar Singh (supra), was of the opinion that view or reasons assigned by the earlier Division Bench for taking the said view, in Bhanwar Lal Godara (supra) were not correct, then the matter could have been referred to the Larger Bench by assigning reasons for the same. He submitted that view taken in the case of Bhanwar Lal Godara (supra) was correct one and view taken in Umesh Kumar Singh''s case (supra) is not correct.

Mr. Bora, learned Senior Counsel also referred the order dt. 22.02.2010 passed by Division Bench of this Court in D.B. Criminal Appeal No. 343/2002 - Gani Khan vs. State of Rajasthan, wherein the question framed for determination was, "WHETHER the Parole Committee/District Magistrate or any other Authority other than the Courts are authorized to release the convicts on parole under the Rajasthan Parole Rules, when the trial or appeal is pending?" The Division Bench of this Court answered the question in the manner that an accused is not entitled for parole under the Rules of 1958 during pendency of trial, but he can be released on parole by the Parole Committee/District Magistrate or any other authority prescribed under the Rules of 1958 other than the Courts, subject to checks and conditions prescribed under the Rules referred above. The relevant second last para of the order is reproduced as under:

In view of the legal position discussed above, an accused during the pendency of trial is not entitled for parole under the Rules of 1958 but a person convicted may be released on parole by the Parole Committee/District Magistrate or any other authority prescribed under the Rules of 1958 other than the Courts subject to checks and conditions prescribed under the Rules referred above.

He, therefore, submitted that another Division Bench of this Court had also taken a view in Gani Khan vs. State of Rajasthan (supra), similar to a view taken in Bhanwar Lal Godara''s case (supra) that a convict has a right to file an application for grant of parole under the Rules of 1958, during pendency of the appeal. He submitted that this judgment in Gani Khan''s Case (supra) was not taken into consideration by the subsequent Division Bench while deciding Umesh Kumar Singh @ Munna Singh''s case (supra).

Mr. G.R. Punia, learned Additional Advocate General and Senior Advocate, assisted by Mr. K.R. Bishnoi, Additional Government Advocate, appearing on behalf of respondents, has not disputed the above fact that there was already a judgment of Division Bench of this Court in the case of Bhanwar Lal Godara & Ors. vs. State of Raj. & Ors. (supra), to the effect that during pendency of appeal, the powers to release convict on parole can be exercised by State. He also submitted that the earlier judgment of the Division Bench was binding on subsequent Division Bench. He submitted that, at present, there are two different judgments on this point, in the case of Bhanwar Lal Godara (supra) and Umesh Kumar Singh (supra), therefore, the matter requires consideration by a Larger Bench. He, therefore, submitted that the proper course would be to refer the matter to a Larger Bench for authoritative pronouncement on the point.

We have considered the submissions of learned counsel for the parties.

The sole question, which arises for consideration in the present matter is, "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?"

In Bhanwar Lal Godara & Ors. vs. State of Raj. & Ors. (supra), the Division Bench of this Court has held that even after rejection of the application for suspension of sentence, an accused has a right to move an application for grant of parole, under Parole Rules of 1958, during pendency of the appeal. Para 11 of the judgment is reproduced as under:

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 Sec. 389 Cr.P.C. 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. In emergent cases however application may be disposed of by the Superintendent of Jail as per parole rules.

In Umesh Kumar Singh @ Munna Singh vs. The State of Rajasthan & Ors. (supra), the Division Bench of this Court, although referred and considered the case of Bhanwar Lal Godara & Ors. vs. State of Raj. & Ors. (supra), but held that observation made in the case of Bhanwar Lal Godara & Ors. vs. State of Raj. & Ors. (supra), is not in consonance with the principle of law laid down by the Constitution Bench of Hon''ble Supreme Court in the case of K.M. Nanavati Vs. The State of Bombay, Ultimately, in Umesh Kumar Singh @ Munna Singh''s case (supra), it was held that in pending appeals, executive powers of the State Government for grant of parole cannot be exercised. Para 18 of the judgment is reproduced as under:

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 toward the judicial process and even in the most emergent circumstances the Courts will be open to grant relief to a convict in deserving cases.

Mr. Mahesh Bora, learned Senior Advocate appearing on behalf of petitioner, submitted that the judgment of Hon''ble Supreme Court rendered in the case of K.M. Nanavati vs. State of Bombay (supra), was not at all applicable as that was the case relating to giving of "pardon" under Article 161 of the Constitution of India, whereas there is distinction between grant of ''pardon'' and ''parole''. He submitted that so far as grant of parole is concerned, the State Government has framed the statutory Rules i.e. the Rules of 1958. He also submitted that the Division Bench of this Court in Umesh Kumar Singh @ Munna Singh''s case (supra), has wrongly relied upon the observations of Hon''ble Apex Court in the case of K.M. Nanavati vs. State of Bombay (supra), whereas same were not applicable and attracted at all. He, therefore, submitted that this Court should hold that the judgment delivered in the case of Umesh Kumar Singh @ Munna Singh (supra), is per incuriam and an accused/convict/prisoner has a right to move an application for grant of parole in accordance with the Rules of 1958, even during pendency of his appeal, against his conviction by the trial Court.

So far as submissions of Mr. Punia, learned Additional Advocate General are concerned, he submitted that there are two diversion views of two Division Bench, therefore, it will be appropriate to refer the matter to Larger Bench.

In Union of India (UOI) and Another Vs. Raghubir Singh (Dead) by Lrs. Etc., the Constitution Bench of the Hon''ble Apex Court held that a pronouncement of law by a Division Bench is binding on a Division Bench of the same or smaller number of Judges and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court.

The above judgment rendered in Union of India and Another vs. Raghubir Singh (Dead) By LRs. Etc. (supra), was followed by the Hon''ble Apex Court recently in the case of Rattiram and Others Vs. State of M.P., of the said judgment are reproduced as under:

In Union of India (UOI) and Another Vs. Raghubir Singh (Dead) by Lrs. Etc., the Constitution Bench, speaking through R.S. Pathak, C.J., has held thus: (SCC p.778, para 28)

We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court.

Recently, in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, while addressing the issue of per incuriam, a two-Judge Bench, speaking through one of us (Dr. Bhandari, J.), after referring to the dictum in Bristol Aeroplane Co. Ltd. { 1944 KB 718} and certain passages from Halsbury''s Laws of England and Raghubir Singh, has stated thus: (Siddharam case, SCC p. 743, paras 138-39)

The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a coequal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paras 124 and 125 are by two or three Judges of this Court. These judgments have clearly ignored the Constitution Bench judgment of this Court in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, which has comprehensively dealt with all the facets of anticipatory bail enumerated under Sec. 438 of the Code of Criminal Procedure. Consequently, the judgments mentioned in paras 124 and 125 of this judgment are per incuriam.

In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the Court doubts the correctness of the judgments by two or three Judges, then the proper course would be to request Hon''ble the Chief Justice to refer the matter to a larger Bench of appropriate strength.

In Union of India (UOI) and Others Vs. S.K. Kapoor, the Hon''ble Apex Court held that if a subsequent coordinate Bench of equal strength wants to take a different view from prior decision of a coordinate Bench, it can only refer the matter to a Larger Bench. Para 9 of the said judgment reads as under:

It may be noted that the decision in S.N. Narula Vs. Union of India (UOI) and Others, was prior to the decision in Union of India (UOI) and Another Vs. T.V. Patel, It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the decision in S.N. Narula case was not noticed in T.V. Patel case, the latter decision is a judgment per incuriam. The decision in S.N. Narula case was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.

In Central Board of Dawoodi Bohra Community and Another Vs. State of Maharashtra and Another, a Constitution Bench of Hon''ble Apex Court held that law laid down by the Supreme Court in a decision delivered by a Bench of larger strength, is binding on subsequent Bench of lesser or co-equal strength.

In view of above settled preposition of law, it is not just, proper and reasonable to consider the judgment of Division Bench of this Court, in the case of Umesh Kumar Singh @ Munna Singh (supra) on merits, while sitting in Division Bench; in our opinion, at present there are two diversion views of two Division Bench of this Court in the case of Umesh Kumar Singh @ Munna Singh vs. The State of Rajasthan & Ors. (supra) and in the case of Bhanwar Lal Godara & Ors. vs. State of Raj. & Ors. (supra). Therefore, we think it fit and proper to refer the matter to Hon''ble The Chief Justice to consider to constitute a Larger Bench on the following question:

Whether State can exercise its power to grant parole to convict under the provisions of Parole Rules, 1958, during the pendency of his/her appeal?

Since number of similar matters, involving the same question of law are pending and coming daily before this Court, therefore, the Registry is directed to place the matter before Hon''ble the Chief Justice, immediately, for consideration and constitution of larger bench, if think fit and proper, to decide the above framed question of law.