AI Structured Summary
Not yet generated for this judgment
Judgment
S. Nagamuthu, J.—""Human dignity, emphasised in the preamble, compassion, implicit in the prescription of fair procedure in Article 21, and
the irrationality of arbitrary incarceratory brutality violative of Article 14 invest the demand for a reformatory component in jail regimen with the
status of a constitutional requirement."" This is what Hon''ble Mr. Justice V.R. Krishna Iyer, speaking for the majority in Maru Ram and Others Vs.
Union of India (UOI) and Others, , put it very aptly about the objective of sentencing.
In the jail context, ""Parole"" is a common language often spoken to in the jails and off the jails by the inmates and their kith and kin. What do we
really mean by the term ""parole"" in the legal sense of it and whether the same amounts to suspension of sentence is the doubt which is the basis for
the Division Bench for referring the following question to this Full Bench to answer:
Whether the period spent on parole by a convict shall be counted as sentence period or not ?
The Respondent in W.A.(MD). No. 206 of 2010 is a life convict undergoing sentence in the Central Prison, Palayamkottai. According to him,
he had spent around 480 days on parole. But the Appellants herein did not count the period spent on parole as the period of sentence spent by
him. Therefore, he filed W.P.(MD). No. 4231 of 2009 before the Madurai Bench of this Court for a Mandamus to direct the Appellants herein to
count the parole period as part of the period of sentence spent by him. A learned Single Judge of this Court, while sitting in Madurai Bench by an
order dated 07.10.2009, allowed the said writ petition and issued Mandamus as prayed for. As against the same, the State filed the present appeal
in W.A.(MD). No. 206 of 2010.
This appeal came up for hearing before the Madurai Bench on 23.09.2010, before a Division Bench presided over by Hon''ble Mr. Justice P.
Jyothimani to which one of us (S. Nagamuthu,J.) was a party. Before the Division Bench, it was argued by the learned Additional Public
Prosecutor that as per the Tamil Nadu Prison Manual and as per Rule 36 of the Tamil Nadu Suspension of Sentence Rules, 1982, the period
spent on parole shall not be counted as sentence period and thus the order of the learned Single Judge is contrary to the above specific provision.
The learned Additional Public Prosecutor placed reliance on the Division Bench Judgments of this Court in Gladys L. Paulsamy v. DIG of Prison,
Chennai Range reported in 2009 (1) MLJ (Crl) 531 wherein, the Division Bench held that the parole period shall not be counted as sentence
period. Another Division Bench in N. Padmini v. DIG of Prison, Chennai Range reported in 2009 (1) MLJ (Crl) 528, while dealing with a Habeas
Corpus Petition under Article 226 of the Constitution of India, took a different view and held that parole period shall be counted as sentence
period. However, later on, the same Division Bench, reviewed the said order by order dated 27.01.2009, thereby holding that the period of parole
shall not be counted as sentence period. Placing reliance on these two decisions, the learned Additional Public Prosecutor contended that the order
of the learned Single Judge under appeal is not therefore sustainable in law.
But, the Learned Counsel appearing for the Respondent placed reliance on the judgments of the Hon''ble Supreme Court in Avtar Singh v. State
of Haryana and Anr. reported in 2002 2 SCC (Crl) 504 and another Constitution Bench judgment of the Hon''ble Supreme Court in Sunil
Fulchand Shah Vs. Union of India and Others, wherein the Hon''ble Supreme Court has held;
The action for grant of parole, generally speaking is an administrative action and parole is a form of temporary release from custody, which does
not suspend the sentence of the period of detention, but provides conditional release from the custody and changes the mode of undergoing the
sentence.
It was contended before the Division Bench that essentially suspension of sentence is different from release on parole. It was also contended
that the above two Division Benches did not deal with the distinction between ""release on parole"" and ""suspension of sentence"". It was further
contended that under the Tamil Nadu Suspension of Sentence Rules, 1982, if a convict is released on leave, the said period spent on such leave
shall not be counted as sentence period for which there is a specific provision in the Rules itself, but there is no such prohibition in law to count the
period of parole as part of sentence period.
On considering the rival contentions, the Division Bench had a doubt about the correctness of the conclusions arrived at in the above two
Division Bench judgments of this Court. Thus, the Division Bench was of the view that the issue needs to be examined in detail by a Larger Bench,
as any decision on this issue may have a far reaching consequences. Accordingly, the Division Bench framed the question as extracted at the
beginning of this judgment and referred the matter to the Hon''ble The Chief Justice for deciding the constitution of a Larger Bench. On considering
the same, the Hon''ble The Chief Justice has constituted this Full Bench and has referred the said question for answer. That is how this reference is
before this Full Bench.
We have heard the Learned Public Prosecutor Mr. I. Subramaniam for the Appellants and Mr. V. Kathirvel, learned senior counsel appearing
for the Respondent. At our request, Mr. P.N. Prakash, the Learned Counsel has assisted the Court as Amicus Curiae. All the Learned Counsel
addressed arguments at length by referring to various judgments and provisions of law which we will herein below deal with.
As we have seen above, the crux of the issue is the difference sought to be made between ''release on parole'' and ''suspension of sentence''.
The term parole has not been defined anywhere in any Statute, Rules or Regulations. The concept and effect of parole came to be deeply dealt
with by a Constitution Bench of the Hon''ble Supreme Court in Sunil Fulchand Shah Vs. Union of India and Others, on a reference made by a
Division Bench. The Constitution Bench noted that Bail and Parole have different connotations. The Constitution Bench held that even though the
substantial legal effect on both Bail and Parole may be the release of a person from detention or custody, essentially they are of different
connotations in law. The Constitution Bench went on to refer to the dictionary meaning of the word ''Parole'' as found in The Concise Oxford
Dictionary-New Edition, Black''s Law Dictionary-Sixth Edition, The Law Lexicon by Mr. P. Ramanatha Aiyar and a book on Words and Phrases
(Permanent Edition); Vol.31. The Supreme Court also extracted the judgment in Jenkins v. Madigan, C.A. Ind 211F. 2D 904, 906 which is as
follows:
A ''parole'' is not a ''suspension of sentence'', but is a substitution, during continuance of parole, of lower grade of punishment by confinement in
legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the
Court.
Further it proceeded to hold that:
A ''parole'' does not suspend or curtail the sentence originally imposed by the Courts as contrasted with a ''commutation of sentence'' which
actually modifies it.
In paragraph 12 of the judgment, the Constitution Bench made the following observations:
In this country, there are no statutory provisions dealing with the question of grant of parole. The Code of Criminal procedure does not contain
any provision for grant of parole. By administrative instruction, however, rules have been framed in various States, regulating the grant of parole.
Thus, the action for grant of parole is generally speaking an administrative action. The distinction between grant of bail and parole has been clearly
brought out in the judgment of this Court in State of Haryana and Others Vs. Mohinder Singh, to which one of us (Wadhwa, J.) was a party. That
distinction is explicit and I respectfully agree with that distinction.
In paragraph 13, the Constitution Bench further went on to say the following:
Thus, it is seen that ''parole'' is a form of ""temporary release"" from custody, which does not suspend the sentence or the period of detention,
but provides conditional release from custody and changes the mode of undergoing the sentence......
(Emphasis supplied)
In paragraph 16 of the Judgment, the Constitution Bench made the following further observations:
Since, release on parole is only a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations,
it does not interrupt the period of detention and, thus, needs to be counted towards the total period of detention unless the rules, instructions or
terms for grant of parole, prescribe otherwise.....
(Emphasis added)
The Hon''ble Constitution Bench finally concluded as follows:
...The answer to the question, therefore, is that the period of detention would not stand automatically extended by any period of parole granted to
the detenu unless the order of parole or rules or instructions specifically indicates as a term and condition of parole, to the contrary. The period
during which the detenu is on parole, therefore, requires to be counted towards the total period of detention.
(Emphasis added)
A close reading of the above judgment of the Constitution Bench of the Hon''ble Supreme Court would make it undoubtedly clear that any
release on parole does not interrupt the period of detention and therefore the said period spent on parole has to be counted as sentence period
unless the rules, instructions or permission granted on parole prescribes otherwise.
The above judgment of the Constitution Bench came to be considered by the Hon''ble Supreme Court in Avatar Singh v. State of Haryana and
Anr. reported in 2002 SCC (Cri) 504. In the said case, the constitutionality of Section 3(3) of the Haryana Good Conduct Prisoners (Temporary
Release) Act, 1988 was under challenge. Sections 3 & 4 of the said Act read as follows:
Temporary release of prisoners on certain grounds.-(1) The State Government may, in consultation with the District Magistrate or any other
officer appointed in this behalf, by notification in the Official Gazette and subject to such conditions and in such manner as may be prescribed,
release temporarily for a period specified in Sub-section (2), any prisoner, if the State Government is satisfied that-
(a) a member of the prisoner''s family had died or is seriously ill or the prisoner himself is seriously ill; or
(b) the marriage of the prisoner himself, his son, daughter, grandson, granddaughter, brother, sister, sister''s son or daughter is to be celebrated; or
(c) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any
other agricultural operation on his land or his father''s undivided land actually in possession of the prisoner; or
(d) it is desirable to do so for any other sufficient cause.
(2) The period for which a prisoner may be released shall be determined by the State Government so as not to exceed-
(a) where the prisoner is to be released on the grounds specified in Clause (a) of Sub-section (1), three weeks;
(b) where the prisoner is to be released on the ground specified in Clause (b) or Clause (d) of Sub-section (1), four weeks; and
(c) where the prisoner is to be released on the grounds specified in Clause (c) of Sub-section (1), six weeks:
Provided that the temporary release under Clause (c) can be availed more than once during the year, which shall not, however, cumulatively
exceed six weeks.
(3) The period of release under this section shall not count towards the total period of sentence of a prisoner.
(4) The State Government may, by notification, authorise any officer to exercise its powers under this section in respect of all or any other ground
specified thereunder.
Temporary release of prisoners on furlough.-(1) The State Government or any other officer authorised by it in this behalf may, in consultation
with such other officer as may be appointed by the State Government, by notification, and subject to such conditions and in such manner as may
be prescribed, release temporarily, on furlough, any prisoner who has been sentenced to a term of imprisonment of not less than four years, and
who-
(a) has, immediately before the date of his temporary release, undergone continuous imprisonment for a period of three years, inclusive of the pre-
sentence detention, if any;
(b) has not during such period committed any jail offence (except an offence punished by a warning) and has earned at least three annual good
conduct remissions:
Provided that nothing herein shall apply to a prisoner who-
(i) is a habitual offender as defined in Sub-section (3) of Section 2 of the Punjab Habitual Offenders (Control and Reforms) Act 1952; or
(ii) has been convicted of dacoity or such other offence as the State Government may, by notification, specify.
(2) The period of furlough for which a prisoner is eligible under Sub-section (1) shall be three weeks during the first year of his release and two
weeks during each successive year thereafter.
(3) Subject to the provisions of Clause (d) of Sub-section (3) of Section 8 the period of release referred to in Sub-section (1) shall count towards
the total period of the sentence undergone by a prisoner.
The said Act dealt with two categories of prisoners of temporary release. A prisoner released on parole u/s 3 is not entitled for counting the
period of release towards the total period of sentence of imprisonment undergone by him whereas, a prisoner released on furlough, the period of
such temporary release shall be counted towards his total period of imprisonment.
Relying on the law laid down by the Constitution Bench of the Hon''ble Supreme Court in Sunil Fulchand Shah''s case, it was contended
before the Hon''ble Supreme Court that Sub-section (3) of Section 3 of the Act is unconstitutional and violative of Article 21 of the Constitution. It
was also contended that it is discriminatory in as much as a person released on parole u/s 3 is not entitled for the benefit of counting the parole
period as sentence period whereas a person released on furlough u/s 4 is entitled to count the said period as period of sentence undergone. While
extensively going into the same, in paragraphs 11 & 12 of the judgment, the Hon''ble Supreme Court made the following observations:
Parole is essentially an executive function and now it has become an integral part of our justice delivery system as has been recognised by the
courts. Though, the case of Sunil Fulchand Shah was a case of preventive detention, we are of the opinion that the same principle would also apply
in the case of punitive detention.
(Emphasis supplied)
Thus, the Constitution Bench by majority decision clearly held that the period of temporary release of a prisoner on parole is to be counted
towards the total period of detention, unless it is otherwise provided by legislative Acts, rules, instructions or terms of the grant of parole.
Further in paragraphs 17 & 18 of the judgment, the Hon''ble Supreme Court has held as follows:
this Court in State of Haryana v. Mohinder Singh held that ""furlough"" and ""parole"" are two distinct terms now being used in the Jail Manuals or
laws relating to temporary release of prisoners. In Sunil Batra the Constitution Bench has given recognition to creation of a separate class of
prisoners undergoing death sentence. Section 3 has been enacted to meet the urgent pressing personal problems of a prisoner. As noted above,
under this section any prisoner irrespective of his period of sentence or detention can be released on parole to meet such a problem, whereas the
condition for releasing a prisoner on furlough u/s 4 is rigorous and such release on furlough cannot be claimed by certain classes of prisoners as
mentioned in the section. On a close look at both the sections it would appear that these sections operate in different fields. Section 3 has been
enacted to meet certain situation of the prisoner but Section 4 has been enacted as a reformative measure as a prisoner has to show good conduct
while in incarceration. In our considered opinion this classification is based on rational criteria and cannot be said to be discriminatory in nature.
We, therefore, find no force in the first contention of the Learned Counsel for the Appellant.
The second contention of the Learned Counsel for the Appellant has also to be rejected in view of the decision of this Court in Sunil Fulchand
Shah. The Constitution Bench has clearly held that though ordinarily the period of temporary release of a prisoner on parole needs to be counted
towards the total period of detention but this condition can be curtailed by legislative Acts, rules, instructions or terms of grant of parole.
In Maru Ram and Others Vs. Union of India (UOI) and Others, while dealing with the relationship between Sections 432 and 433 of the Code
of Criminal Procedure on the one hand and Articles 72 and 161 of the Constitution of India on the other hand the Hon''ble Supreme Court held as
follows:
72(4). We hold that Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar
power, and Section 433-A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the
constitutional power to pardon, commute and the like.
(Emphasis supplied)
In C.A. Pious Vs. The State of Kerala and Another, , the Hon''ble Supreme Court was invited to interpret the Kerala Prison Rules, 1958. The
claim made by the convict in that case was that the period of study leave amounting to 6 years 10 months and 13 days has to be reckoned while
computing the period of sentence undergone. The said prayer was rejected and the matter ultimately came up before the Hon''ble Supreme Court
for consideration.
Admittedly, in the State of Kerala, in exercise of power u/s 432(6) of the Code of Criminal Procedure, special rules were framed viz., ""Rules
for Suspension of Sentence of Prisoners for the Purpose of Study"" and Rule 280-A provides for leave for the purpose of study. Chapter 26 of the
Prison Rules provides for emergency leave and ordinary leave. While considering the question as to whether the period spend on study leave can
be equated to either emergency leave or ordinary leave, in paragraphs 5 and 6 the Hon''ble Supreme Court has observed as follows:
Rule 280-A provides for suspension of sentence as empowered u/s 432(6) of the Code of Criminal Procedure, 1973 (in short ""Code of
Criminal Procedure"") for the period of leave for the purpose of study. The special rules framed also is captioned as ""Rules for Suspension of
Sentence of Prisoners for the Purpose of Study"". On the other hand, Chapter 26 of the Rules with respect to leave specifies only two kinds of
leave i.e. emergency and ordinary. The above rules do not contemplate suspension of sentence and it can also be seen from the same that the
maximum period of emergency leave at a stretch is only for a period of 15 days and the ordinary leave up to a maximum of 30 days at a time vide
Rule 453. Rule 452-B also provides that a prisoner once released on leave of any kind will not be eligible for a subsequent release on leave until
the completion of six months of actual imprisonment to be counted from the date of his last return from leave. Emergency leave in Rule 455 is an
exception to this as the same is confined to 15 days as noted above and the grounds are death or serious illness of a near relative. On the other
hand, during the period of study leave, the sentence stands suspended. The result of suspension of sentence as per Rule 225(2) is that the same is
excluded from the period of sentence undergone. Ipsissima verba Rule 225 is as follows:
Procedure when sentence is suspended.-(1) When an appellate court directs that the execution of sentence or order appealed against be
suspended the Appellant shall, if detained in jail pending the further orders of such appellate court, be treated in all respects as an undertrial
prisoner. (2) Should the Appellant be ultimately sentenced to imprisonment the period during which the original sentence was suspended shall (a) if
passed in jail, be included, and (b) if passed out of jail, be excluded in computing the term for which he is sentenced by the appellate court.
Rule 225(2) makes the position very much explicit. Rule 461 i.e. the provision for treatment of the period of leave as the sentence undergone
cannot be made applicable to the study leave period. The same is abundantly clear from the fact that at the time of commencement of study leave,
the sentence stands suspended whereas for the emergency leave or ordinary leave, the above suspension is not contemplated under Chapter 26 of
the Rules. It is also seen from the Rules concerned as noted above i.e. Rule 453 that the period of emergency and ordinary leave are confined to a
short period and the same is not granted continuously and also that a gap of six months is contemplated as per Rule 452-B for further release of a
prisoner granting ordinary leave. Emergency leave as already noted vide Rule 455 is limited to extreme situations like death or serious illness. But
so far as study leave is concerned, it is seen that the same is granted somewhat liberally. The Appellant himself was outside the prison for more
than six years. He was outside the prison more than the period he spent inside.
The Hon''ble Supreme Court, having taken note of the conclusions in paragraph 72 of the Maru Ram''s Case, held that the period spent on
study leave as per Rule 280-A of the Rules for Suspension of Sentence of Prisoners for the Purpose of Study shall not be counted as sentence
period.
In Maru Ram''s case while dealing with the coextensive nature of Constitutional power and Statutory power, the Hon''ble Supreme Court has
held as follows:
It is apparent that superficially viewed, the two powers, one constitutional and the other statutory, are coextensive. But two things may be
similar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a
high prerogative vested by the Constitution in the highest functionaries of the Union and the States. The source is different, the substance is
different, the strength is different, although the stream may be flowing along the same bed. We see the two powers as far from being identical, and,
obviously, the constitutional power is ""untouchable"" and ""unapproachable"" and cannot suffer the vicissitudes of simple legislative processes.
Therefore, Section 433-A cannot be invalidated as indirectly violative of Articles 72 and 161. What the Code gives, it can take, and so, an
embargo on Sections 432 and 433(a) is within the legislative power of Parliament.
Even so, we must remember the constitutional status of Articles 72 and 161 and it is common ground that Section 433-A does not and cannot
affect even a wee bit the pardon power of the Governor or the President. The necessary sequel to this logic is that notwithstanding Section 433-A
the President and the Governor continue to exercise the power of commutation and release under the aforesaid articles.
A deep reading of all the judgments referred to above makes one thing crystal clear i.e., the power of the Government to grant suspension in
terms of Section 432 of the Code of Criminal Procedure is not the manifestation of the Executive power of the Government contained under
Articles 72 and 161 of the Constitution of India. The power u/s 432 of the State Government is independent.
As we have noticed, several States have framed their own Rules regulating the suspension of sentence by issuing such Rules in exercise of the
Power u/s 432(5) of the Code of Criminal Procedure. For instance, the State of Kerala has issued the ""Rules for Suspension of Sentence of
Prisoners for the Purpose of Study"" and has issued another Rule known as ""Kerala Prison Rules, 1958"" under the Prisons Act.
The Rules for Suspension of Sentence of Prisoners for the Purpose of Study, states that the leave for the purpose of study is a suspension of
sentence and therefore the same shall not be counted as sentence period. But Rule 461 of the Kerala Prison Rules states that the period of leave,
either emergency leave or ordinary leave shall be treated as sentence period. It is because of these two distinctive provisions under two different
Rules, the Hon''ble Supreme Court held in C.A. Pious case, that though the period of leave granted under the Kerala Prisons Rules, shall be
counted as sentence period, the period of study leave granted under the Rules for Suspension of Sentence of Prisoners for the Purpose of Study
shall not be counted as sentence period.
Now, let us turn to the position in the State of Tamil Nadu. The State of Tamil Nadu has issued Tamil Nadu Suspension of Sentence Rules,
1982 in exercise of the power conferred u/s 432(5) of the Code of Criminal Procedure. According to these Rules, there are two kinds of leave
known as emergency leave and ordinary leave. The said Rules deal with the grounds for grant of emergency leave, eligibility for emergency leave,
maximum period of emergency leave, grounds for grant of ordinary leave, eligibility for ordinary leave etc., Rule 36 deals with the treatment of the
period of leave either emergency or ordinary which reads as follows:
Rule 36. The day on which the prisoner was released and the day on which he was readmitted shall both be counted as days of imprisonment but
the period of leave shall not be taken as period of sentence undergone by the prisoner.
Therefore, as held by the Hon''ble Supreme Court in Maru Ram''s Case and in C.A. Pious''s Case, in view of the express provision in the form
of Rule 36 of the Tamil Nadu Suspension of Sentence Rules, there can be no manner of doubt that any period spent on either emergency leave or
ordinary leave, shall not be counted as sentence period. It is essentially because, on such leave being granted, the period of sentence undergone by
the prisoner is disrupted. The said disruption is on account of the suspension of sentence u/s 432 of Code of Criminal Procedure The said rules
only regulate the grant of suspension u/s 432 of Code of Criminal Procedure In other words, by grant of leave, the period of sentence is suspended
and therefore the suspension period is not counted as period of sentence undergone. In respect of this position, there is no contrary opinion
expressed by any counsel before us.
But the contention is that parole which is granted outside the purview of the Tamil Nadu Suspension of Sentence Rules, 1982 (hereinafter
referred to as the ''Rules'') does not amount to suspension of sentence because there is no disruption of the period of sentence undergone by the
prisoner. Therefore as held in Sunil Fulchand Shah''s Case and in Avtar Singh''s Case, according to the Learned Counsel for the Respondent, the
said period spent on parole has to be counted as sentence period.
As we have already seen in the judgment of the Maru Ram''s Case, the power to grant suspension in exercise of the power u/s 432 of the
Code of Criminal Procedure, is the statutory power of the Government and the same is independent of the executive power of the Government
under Articles 161 and 162 of the Constitution of India. Therefore, independent of the said statutory power, as held in Maru Ram''s Case, the
Government has got Executive power to issue rules regarding the release of a prisoner on temporary basis for any purpose. While saying so, we
are conscious of the fact that we have not been called upon to decide the scope of the Executive power of His Excellency the Governor under
Article 161 of the Constitution of India as the same is no more res integra in view of the law laid down by the Hon''ble Supreme Court in Maru
Ram''s Case.
We are concerned only with the general Executive power of the State under Article 162 of the Constitution of India. It is needless to point out
that the Executive power of the State extends to the matters with respect to which the Legislature of the State has power to make laws. Entry 4 in
List-II of the VII Schedule of the Constitution includes not only prisons, reformatories, Borstal institutions and other institutions of a like nature, and
persons detained therein as well. Therefore, the Executive power of the State extends to the Regulation of the prisoners, both convicts, under trial
prisoners and other detenus in prisons. It is needless to point out, the general Executive power of the State under Article 162 is subject to the other
provisions of the Constitution. It is well settled that even though the Executive power may, in the absence of a Constitutional bar, be exercised in
the absence of any legislation to support such action, it cannot be so exercised as to contravene any law relating to the matter or Rules having the
force of law. (vide. R.N. Nanjundappa Vs. T. Thimmiah and Another, .
In view of the said settled position of law, so far as the State of Tamil Nadu is concerned, since there is a statutory Rule in the form of the
Tamil Nadu Suspension of Sentence Rules, occupying the field of suspension of sentence by grant of either emergency leave or ordinary leave, the
Executive power of the State under Article 162 of the Constitution cannot be exercised by the State in derogation of the said Rules. To put it
otherwise, outside the scope of the said Rules, the Government or any other Authority of the government shall not grant any suspension of sentence
to a prisoner.
If we are to hold that the parole and suspension of sentence refer to one and the same temporary release of a prisoner, there may not be any
difficulty for us to hold that such release of the prisoner shall also be governed only by the Tamil Nadu Suspension of Sentence Rules and therefore
such parole cannot be granted by the Government or any other Authority outside the scope of the said Rules. But it is the contention of the
Respondent that in parole the sentence is not disrupted whereas in suspension of sentence, the sentence undergone by the prisoner is disrupted
temporarily and therefore both are different concepts.
In this regard, we may once again refer to the judgment of the Hon''ble Supreme Court in Sunil Fulchand Shah Case, wherein, in paragraph
12, the Hon''ble Supreme Court has found the difference between these two as follows:
In this country, there are no statutory provisions dealing with the question of grant of parole. The Code of Criminal procedure does not contain
any provision for grant of parole. By administrative instruction, however, rules have been framed in various States, regulating the grant of parole.
Thus, the action for grant of parole is generally speaking an administrative action.
(Emphasis added)
Thus it is crystal clear that what is granted in exercise of power u/s 432 of the Code of Criminal Procedure is suspension of sentence and there
is no provision in the Code of Criminal Procedure enabling any authority to grant parole. Parole is undoubtedly a temporary release which is an
administrative action. Thus, parole and suspension of sentence are of different connotations operating in different manners. The former does not
disrupt the sentence undergone by the prisoner, whereas, the later disrupt the sentence undergone for a temporary period. It is because of the
reason that the sentence is not disrupted by the release on parole, the Hon''ble Supreme Court has been consistently holding that parole period
shall be counted as sentence period.
As we have seen earlier, in Kerala State as referred to in C.A. Pious Case, there is a Rule regulating grant of parole known as ''Kerala Prison
Rules, 1958'' issued under the Prisons Act. In that Rules, if a prisoner is released temporarily either on emergency leave or ordinary leave, the said
period shall be counted as sentence period. In so far as the State of Tamil Nadu is concerned, here also there is a rule known as the ""Tamil Nadu
Prison Rules"" issued under the Prisons Act. But the said Rules do not regulate temporary release of prisoner on parole, instead, yet again it deals
only with the suspension of sentence. Rule 239(1) of the Tamil Nadu Prison Rules reads as follows:
Rule.239. Periods that will not count towards sentence: (1) In the following cases, the period spent by prisoners outside the prison shall not count
towards sentence namely:
(i) Escape
(ii) Bail
(iii) Suspended period of sentence including emergency leave.
(iv) Unauthorised extension of temporary release.
(v) Suspended period of sentence if directed by the Court.
(vi) Suspension of sentence for police investigation.
(vii) Violation of conditional release.
(viii) Extradition
Thus, as per the Tamil Nadu Prison Rules, the period of sentence suspended including emergency leave shall not be counted towards sentence
period. Thus the Tamil Nadu Prison Rules is not inparimatria with Kerala Prison Rules in the matter of Regulation of parole.
We notice that the expression ""parole"" has been employed in Chapter XIX of the Tamil Nadu Prison Rules. In Chapter XIX of the Tamil
Nadu Prison Rules Rule 340 is as follows:
Rule 340. Calling for verification report.--In preparing cases for consideration of release on parole of prisoners by the Advisory Board, the
Superintendent of the Prison shall address the Collector and the Probation Officer concerned for reports on the advisability of the premature
release of the prisoner in question. The Probation Officer shall personally enquiry into each case and send his report to the Collector with a copy to
the Superintendent in Form No. 98. If the Probation Officer feels that the release of a prisoner is likely to involve breach of peace in the locality,
the Probation Officer shall consult the local Sub-Inspector of Police, solely with a view to avoid any breach of peace in the background of factions
and party strife and record the views of the Sub-Inspector of Police against item 2 of Form No. 100. In respect of other cases in which there is no
likelihood of breach of peace, the Probation Officer shall send his report direct to the Collector and the Superintendent without consulting the local
Sub-Inspector of Police. The Collector of the district concerned shall carefully weigh the circumstances of each individual case in the light of the
views of the Probation Officer and the Police Officer and shall invariably furnish the grounds in detail for his recommendation to the Superintendent
of the Prison for consideration by the Advisory Board.
(2) If on any account, the Advisory Board wants a fresh report, the Probation Officer shall conduct necessary enquiry afresh and send his report to
the Collector in consultation with the local Sub-Inspector of Police, if necessary, with a copy to the Superintendent. The Collector may either
transmit the report of the Probation Officer with his recommendation or if he so feels, conduct enquires by the officers of the department
independent of the report of the Probation Officer and forward his recommendations to the Superintendent along with the report of the Probation
Officer.
A reading of Rule 340 would go to show that the competent Authority to grant parole is only the Government. Rule 341(4) reads as follows:
341(4). (i) The cases of prisoners coming under Sub-rule (2) shall be submitted to Government for orders with the recommendation of the
Advisory Board whether it recommends parole or not, together with the judgment of the Court and other connected papers.
(ii) The cases of prisoner sentenced to seven years and above and whose cases whether or not recommended for parole by the Advisory Board,
shall also be sent to Government for orders.
(iii) The cases of prisoners sentenced to less than seven years shall be sent to Government only if recommended for parole by the Advisory Board.
(iv) If the Government refuse to order parole of a prisoner referred to in the first paragraph of Sub-rule (3), they shall direct the resubmission of his
case for their re-consideration again after such period as they may deed fit;
Provided that prisoners other than life prisoners shall, on the expiry of their sentences, less the periods of remission earned, be sent on parole
unconditionally without the specific orders of Government.
Sub-Rule 8 to Rule 341 reads as follows:
341(8). Where order is received from the Government for parole of a prisoner on his executing a bond in addition to a bond from a surety, the
Superintendent shall send the prisoner on parole only after obtaining the bond in Form No. 130 from the prisoner and a bond in Form No. 131
from the surety.
Form 130 starts like this:
Form No. 130. ''Form of bond to be obtained from a prisoner to be sent on parole on the recommendation of the Advisory Board.
Whereas I (name)... son of... inhabitant of (place)... have been ordered to be released by the Government of Tamil Nadu before the date of expiry
of my normal period of imprisonment on condition of my entering into a bond to observe the conditions specified hereafter, I hereby bind myself as
follows:...
(Emphasis supplied)
Thus, Form 130 clearly reflects that the term parole as repeatedly used in Chapter XIX of the Tamil Nadu Prisons Rules is not relating to the
temporary release of a prisoner on parole, but it is a release by granting remission. Thus, the term parole has been loosely used in Chapter XIX of
the Tamil Nadu Prison Rules in a different context and not in the context in which the same has been dealt with in Sunil Fulchand Shah''s Case and
in Avtar Singh''s Case. Thus, the Tamil Nadu Prison Rules do not contain any provision regulating the release of prisoners temporarily on parole.
The Government of Tamil Nadu has published Tamil Nadu Prison Manual Volume IV containing the executive and administrative orders and
instructions issued by the Government and the Inspector-General of Prisons from time to time relating to inspection, superintendence and
management of prison and prisoners in the State of Tamil Nadu. A perusal of the same would go to show that there is no administrative guidelines
so far issued regulating the temporary release of prisoners on parole as dealt with in Sunil Fulchand Shah''s Case and in Avtar Singh''s Case.
From the above discussions it emerges that so far as the State of Tamil Nadu is concerned, there is no Rule or Regulation by way of
administrative instructions issued by the Government under Article 162 of the Constitution of India in the matter of grant of parole. However, in
order to ascertain as to whether parole is granted in the State of Tamil Nadu, though there is no rule regulating the same under Article 162 of the
Constitution of India, we called for certain orders passed by the Government granting parole.
The learned Public Prosecutor has produced the proceedings relating to the grant of parole for one Uaiyakondan Mandri, convict No. 8948,
detained in Palayamkottai Central Prison. The file reveals that a request was made by his wife for grant of parole to him. It was addressed to the
Hon''ble Minister for Prisons. The file further reveals that the Member of the Legislative Assembly of the Tirunelveli Constituency made an
endorsement on the said petition recommending to the Hon''ble Minister for Prisons to grant parole. This was received by the Hon''ble Minister
directly on 29.04.2008. Immediately, thereafter, the Hon''ble Minister has passed the following order:
May be granted 30 days
This order of the Hon''ble Minister was followed by a telex message to the Superintendent of Central Prison, Palayamkottai by the Home
(PR.III) Department, communicating that the convict had been granted leave for 30 days.
The learned Public Prosecutor would submit that in the said case though the request of the convict was for grant of parole, the Hon''ble
Minister representing the Government granted only leave. The said leave has not been granted in accordance with the suspension rules.
The learned Public Prosecutor would further submit that under Rule 40 of the Tamil Nadu Suspension of Sentence Rules, the Government has
got power to exempt any prisoner from all or any of the provisions of this Rules. Rule 40 reads as follows:
Power to exempt: The Government may exempt any person from all or any of the provisions of these rules.
A perusal of the same would show that if a prisoner is so exempted by the Government from the provisions of the said Rules in toto, then the
Government cannot grant suspension at all. But at the same time, the Government can exempt some of the provisions such as provisions relating to
bond etc., in respect of a particular prisoner and release him on leave. Such exercise of the power by the Government exempting some of the
provisions of the Suspension Rules shall be for reasons to be recorded and the same shall not be exercised in an arbitrary manner. As rightly
pointed out by Mr. P.N. Prakash, the Amicus Curiae, the entire Suspension Rules may be exempted in respect of an individual prisoner for valid
reasons. For example, if the prisoner is a hardcore terrorist, even if he satisfies the conditions enumerated in the Suspension Rules, the Government
will be within its competence to exempt him from all the provisions of the Suspension Rules and to decline to release him temporarily either on
emergency leave or ordinary leave.
In Maru Ram''s Case, while emphasising the need for guidelines for the proper exercise of the Executive power and to save it from
arbitrariness, the Hon''ble Supreme Court in paragraph 62 has held as follows:
An issue of deeper import demands our consideration at this stage of the discussion. Wide as the power of pardon, commutation and release
(Articles 72 and 161) is, it cannot run riot; for no legal power can run unruly like John Gilpin on the horse but must keep sensibly to a steady
course. Here, we come upon the second constitutional fundamental which underlies the submissions of counsel. It is that all public power, including
constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the
valid play of power. We proceed on the basis that these axioms are valid in our constitutional order.
(Emphasis supplied)
Again in paragraph 63, the Hon''ble Supreme Court states as follows:
It is the pride of our constitutional order that all power, whatever its source, must, in its exercise, anathematise arbitrariness and obey standards
and guidelines intelligible and intelligent and integrated with the manifest purpose of the power. From this angle even the power to pardon,
commute or remit is subject to the wholesome creed that guidelines should govern the exercise even of presidential power.
(Emphasis supplied)
While declaring the law that the constitutional power of the Executive shall not be exercised in an arbitrary manner and the same shall be
exercised by guidelines intelligible and intelligent and integrated with the manifest purpose of the power, the Hon''ble Supreme Court has further
went on to observe in paragraph 72 of the judgment as follows:
72(10). Although the remission rules or short-sentencing provisions proprio vigore may not apply as against Section 433-A, they will override
Section 433-A if the Government, Central or State, guides itself by the selfsame rules or schemes in the exercise of its constitutional power. We
regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking - a
desirable step, in our view - the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for
release passed. We cannot fault the Government, if in some intractably savage delinquents, Section 433-A is itself treated as a guideline for
exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to
decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme.
We are informed that despite the said judgment, so far no rules have been issued by the Government of Tamil Nadu by way of administrative
instructions under Article 162 regarding grant of parole. Thus, in the State of Tamil Nadu as of now, neither the Government nor any other
statutory authority has power to grant parole for want of rules or a statute. The Government and the Authorities under the Tamil Nadu Suspension
of Sentence Rules, have got power only to grant suspension of sentence and not parole.
In view of the said conclusion, we hold that until a legislation is made or appropriate rules are issued by the Tamil Nadu Government regulating
the grant of parole (temporary release), there shall be no temporary release of any prisoner on parole at all. In the event, any statute is made or the
Government frames appropriate Rules regulating parole, the said Act or Rules may provide for the manner in which the period of parole may be
treated either as part of the sentence period or not.
With the above conclusions in mind, let us now turn to the Division Bench Judgments which have given rise to this reference. In the Division
Bench judgment in Gladys L. Paulsamy v. D.I.G. of Prison, Chennai Range, Chennai and Ors. reported in 2009 1 MLJ (Crl) 531 the Division
Bench has concluded as follows:
In these circumstances, we are not inclined to accept the Respondents'' stand and hold that the 230 days during which he was in parole
(emergency leave and other leave) cannot be counted towards sentence and therefore, the prayer cannot be granted.
Going by the facts of the said case, 230 days of temporary release granted to the prisoner therein was either an emergency leave or an
ordinary leave as per the Tamil Nadu Suspension of Sentence Rules. Such release was not a release on parole. But the Division Bench did not
notice the difference between parole and suspension of sentence and that is the reason why the Division Bench has held that parole cannot be
counted towards sentence period.
Similarly in the order made in the Review Petition in N. Padmini''s case (M.P. No. 1 of 2008 in H.C.P. No. 794 of 2008 dated 27.01.2009),
the other Division Bench has held as follows:
Accordingly, we hold that the period of 222 days i.e. 90 days from 23.03.2002 to 22.06.2002, 90 days from 21.02.2003 to 23.05.2003, 14
days from 14.11.2007 to 29.11.2007, 14 days from 24.12.2007 to 08.01.2008 and 14 days from 29.01.2008 to 13.02.2008 spent by the
detenu on parole cannot be counted towards the sentence undergone by the detenu in the wake of the specific provisions in the Tamil Nadu Prison
Manual Volume-II as well as the Tamil Nadu Suspension of Sentence Rules, 1982 and if that be so, the detenu cannot claim that the period
beyond 16.05.2008 is illegal. Hence the Miscellaneous Petition is allowed and the Habeas Corpus petition is dismissed as devoid of merits.
Here again, this Division Bench has not noticed the difference between parole and suspension of sentence.
As we have already concluded that parole and suspension of sentence are of two different concepts, the conclusion arrived at by the Division
Benches in those two judgments, according to us, is not correct. On facts, in those two cases what was granted was only suspension of sentence
and not parole. Therefore the ultimate decisions arrived at by the Division Benches that the said period spent on leave shall not be counted towards
sentence period is however correct. In view of the same, we are inclined to clarify the above two judgments in the lines indicated above.
In the result, we answer the question referred to us as follows:
(i) Temporary release on parole by way of administrative action and temporary release on suspension of sentence as per the Tamil Nadu
Suspension of Sentence Rules are two different concepts having different connotations.
(ii) The release on parole dealt with under Chapter -XIX of the Tamil Nadu Prison Rules is not stricto sensu temporary release of a prisoner as
dealt with in Sunil Fulchand Shah''s Case and in Avtar Singh''s Case. Such release on parole under the Tamil Nadu Prison Rules is nothing but
remission of sentence.
(iii) Outside the scope of the Tamil Nadu Suspension of Sentence Rules, no authority has got any power to grant suspension of sentence in any
form.
(iv) In the State of Tamil Nadu, neither there is any Act of the Legislature nor any administrative rules or Regulations issued under the executive
power of the State Government under the Constitution enabling any authority, including the Government, to grant temporary release of prisoners on
parole. Therefore, until such statute or administrative rule or Regulation is made, neither the Government nor any other authority shall grant
temporary release of prisoners on parole.
(v) In the event any statutory provision or administrative rule or Regulation is made regulating the temporary release of prisoners on parole, the
same may provide the manner in which the parole period shall be treated.
(vi) In the State of Tamil Nadu, as of now, since there is no statute or administrative rule or Regulation, to grant temporary release on parole, such
release of prisoners granted hitherto shall be treated only as suspension of sentence and therefore the same shall not be counted towards the
sentence period.
With this, we direct the Registry to place the papers before the Honourable The Chief Justice for listing these matters before the Division
Bench concerned for disposal.
Before parting with this Judgment, we like to place on record our appreciation for the excellent assistance rendered by the Amicus Curiae Mr.
P.N. Prakash and the Public Prosecutor Mr. I. Subramaniam.