BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 18/12/2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition (MD) No.11284 of 2009 A.Krishnan .. Petitioner. Versus 1.The State Represented by The Home Secretary, Fort St. George,Chennai. 2.The Inspector General of Prisons, Thalamuthu Natarjan Maligai, Egmore, Chennai. 3.The Deputy Inspector General of Prisons, Madurai Circle, Central Prison Campass, Madurai-16, Madurai District. 4.The Superintendent of Prisons, Central Prison, Madurai-16, Madurai District. 5.The Inspector of Police, Srivilliputur Town Police Station, Srivilliputur, Virudhunagar District. .. Respondents. Prayer Petition filed seeking for a writ of Mandamus, directing the 1st respondent to include the petitioner's parole period in the period of the petitioner's conviction. !For Petitioner ... Mr.V.Kathirvelu ^For Respondents ... Mr.Pala Ramasamy Special Government Pleader (R1 to R5) :ORDER
This writ petition has been filed praying for a Writ of Mandamus to direct
the first respondent to include the petitioner’s parole period in the period of
the petitioner’s conviction and pass other necessary orders.
2. The petitioner has stated that he was charged by the fifth respondent,
under Section 302, read with Section 34 of the Indian Penal Code, in Crime
No.943 of 1991. He was tried by the Principal District Judge, Srivilliputur, in
S.C.No.42 of 1994 and he was found guilty. Therefore, the petitioner was
convicted to undergo a sentence of life imprisonment, on 26.8.1994. The
petitioner had preferred an appeal before this Court, in Criminal Appeal No.478
of 1994. The said appeal had been dismissed, on 17.7.2002, confirming the
conviction. Thereafter, the petitioner had preferred a Special Leave Petition
before the Supreme Court, in Criminal Appeal No.1149 of 2002. The said appeal
had also been dimissed , on 29.7.2003.
3. The petitioner has further stated that he has been on parole on many
occasions, as per the rules and regulations applicable to the petitioner,
including the Tamil Nadu Prison Manual Rules. However, the prison authorities
have not included the parole period, as part of the period of sentence. The
petitioner has further stated that he had not been involved in any other case
and there are no adverse remarks against him. In such circumstances, the
petitioner had submitted a representation, dated 27.10.2009, to the jail
authorities requesting them to include the parole period, as part of the period
of sentence undergone by the petitioner. However, no order has been passed on
the request of the petitioner, dated 27.10.2009.
4. The learned counsel appearing on behalf of the petitioner had relied on
the following decisions in support of his contentions:
4.1. In Sunil Fulchand Shah V. Union of India (AIR 2000 SC 1023), it has
been held as follows (Para6) :
“…. The detenu is not a free man while out on parole. Even while on
parole he continues to serve the sentence or undergo the period of detention in
a manner different than from being in custody. Parole does not keep the period
of detention in a State of suspended animation. The period of detention keeps
ticking during this period of temporary release of a detenu also because a
parolee remains in legal custody of the State and under the control of its
agents, subject at any time, for breach of condition, to be returned to
custody…. 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.”
4.2. In State of Haryana V. Nauratta Singh (2000 SCC (Cri) 711), it has
been held as follows:
“14. Parole is defined in Black’s Law Dictionary as “a conditional release
of a prisoner, generally under supervision of a parole officer, who has served
part of the term for which he was sentenced to prison”. Parole relates to
executive action taken after the door has been closed on a convict. During
parole period there is no suspension of sentence but the sentence is actually
continuing to run during that period also.
15. A Constitution Bench of this Court has considered the distinction
between bail and parole in the context of reckoning the period which a detenu
under a preventive detention order has to undergo in prison. It was in Sunil
Filchand Shah V. Union of India Dr.A.S.Anand, C.J., speaking for himself and for
K.T.Thomas, D.P.Wadhwa and S.Rajendra Babu, JJ., has observed thus: (SCC p.429,
para 24)
“24. Bail and parole have different connotations in law. Bail is well
understood in criminal jurisprudence and chapter XXXIII of the Code of Criminal
Procedure contains elaborate provisions relating to grant of bail. Bail is
granted to a person who has been arrested in a non-bailable offence or has been
convicted of an offence after trial. The effect of granting bail is to release
the accused from internment though the Court would still retain constructive
control over him through the sureties.”
16. After referring to the meaning given to the word “parole” in different
lexicographs learned Chief Justice has stated thus: (SCC p. 431, para 27)
“27. 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.”
17. In a recent decision rendered by a two-Judge Bench of this Court in
State of Haryana V. Mohinder Singh a similar question was considered and it was
held that the benefits intended for those who are on parole or furlough cannot
be extended to those who are on bail. The said decision has been quoted with
approval by the Constitution Bench in the majority judgment in Sunil Fulchand
Shah.”
4.3. In Dadu Alias Tulsidas Vs. State of Maharashtra (2000 SCC (Cri)
1528), it has been held as follows:
“Parole is not a suspension of the sentence. The convict continues to be
serving the sentence despite granting of parole under the statute, rules, jail
manual or the Government Orders. “Parole” means the release of a prisoner
temporarily for a special purpose before the expiry of a sentence, on the
promise of good behaviour and return to jail. It is a release from jail, prison
or other internment after actually being jail serving part of sentence.
Grant of parole is essentially an executive function to be exercised
within the limits prescribed in that behalf. It would not be open to the court
to reduce the period of detention by admitting a detenu or convict on parole.
The Court cannot substitute the period of detention either by abridging or
enlarging it.
It is this clear that parole did not amount to the suspension, remission
or commutation of sentences which could be withheld under the garb if Section
32-a of the Narcotic Drugs and Psychotropic Substances Act. Notwithstanding the
provisions of the offending section, a convict is entitled to parole, subject
however, to the conditions governing the grant of it under the statute, if any,
or the jail manual or government instructions.”
4.4. In N.Padmini V. DIG of Prison Chennai Range (2009(1) MLJ (Crl) 528),
it has been held as follows:
“Parole is not a suspension of sentence and it is essentially the function
of the executive and it cannot be excluded from the period of sentence in the
absence of any statute, notification or instructions by the State.”
4.5. In the order passed by a learned Single Judge of this Court, dated
7.10.2009, made in W.P.No.4231 of 2009, it has been held that the legal
position, which emanates from the various judgments of the Courts of law, is
that `parole’ does not amount to execution, suspension, remission and
commutation of sentence, nor is it a criminal penalty. The release of a person
on parole is subject to regular monitoring by an officer of law during the
particular period. `Parole’ is granted, subject to the conditions governing the
grant of it, under the relevant statute, the jail manual, government
instructions etc. Therefore, the period spent by the convict on `parole’, should
be included in the period of his sentence.
5. The learned counsel for the petitioner had submitted that the period
spent by the petitioner, on `parole’, shall be included as part of the sentence
to be served by the petitioner and therefore, the jail authorities should be
directed to count the `parole’ period of the petitioner, as part of the sentence
imposed on him.
6. Mr.Pala Ramasamy, the learned Special Government Pleader, appearing on
behalf of the respondents, had submitted that there are no statutory rules or
regulations stating that the `parole’ period should be considered to be part of
the sentence served by the convicted person. No executive orders or instructions
are existing to that effect. The Tamil Nadu Jail Manual does not specify the
conditions relating to parole. Therefore, there are no merits in the writ
petition and hence, it is to be rejected.
7. In view of the submissions made by the learned counsel appearing on
behalf of the petitioner, as well as the respondents and in view of the
decisions cited supra, it is clear that the period of `parole’, undergone by the
petitioner, cannot be considered to be part of the sentence to be served by the
petitioner in incarceration, unless there are specific provisions in the
relevant statute, or in case there are rules, regulations or executive
instructions and orders to that effect. Therefore, this Court finds it
appropriate to direct the first respondent to consider and pass appropriate
orders on the representation of the petitioner, dated 27.10.2009, within a
period of twelve weeks from the date of receipt of a copy of this order, taking
into consideration the observations made by this Court in this order.
Accordingly, the writ petition is disposed of with the above observations. No
costs.
csh
To
1. The Home Secretary,
Fort St. George,Chennai.
2.The Inspector General of Prisons,
Thalamuthu Natarjan Maligai,
Egmore, Chennai.
3.The Deputy Inspector General
of Prisons, Madurai Circle,
Central Prison Campass,
Madurai-16, Madurai District.
4.The Superintendent of Prisons,
Central Prison, Madurai-16,
Madurai District.
5.The Inspector of Police,
Srivilliputur Town Police Station,
Srivilliputur, Virudhunagar District.