wp272.12.

odt

1/27

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL WRIT PETITION NO.272 OF 2012. PETITIONER:

Gajanan Babulal Bathulwar, Central Prison, Nagpur and 77 others -VERSUS-

RESPONDENTS:

ig h
2 3

The State of Maharashtra, Through its Secretary, Home Department, Mantralaya, Mumbai. The D. I. G. Prisons (E)(R), Nagpur. The Superintendent, Prison, Nagpur. Central

ba y

Ms. S. H. Bhatia Advocate (appointed) for petitioner. Mrs. Bharti Dangre, Government Pleader respondents. 000 CRIMINAL WRIT PETITION NO.355 OF 2012 Umashankar Shriram Convict No.Nil, Prison, Nagpur. -VERSUSRESPONDENTS: 1 2 The Divisional Commissioner, Nagpur Division, Nagpur. The Superintendent, Prison, Nagpur. Central Potbhare, Central

PETITIONER:

om

Mrs. Sonali Saware Advocate (appointed) for the petitioner. Mrs. Bharti Dangre, Government Pleader respondents.

C ou
the for for
::: Downloaded on - 24/03/2014 13:46:34 :::

rt

wp272.12.odt ooo CRIMINAL WRIT PETITION NO.366 OF 2012 PETITIONER:

2/27

-VERSUSRESPONDENTS: 1 2

The Divisional Commissioner, Nagpur Division, Nagpur. The Superintendent, Prison, Morshi, Amravati. open Distt.

Ms. Radha Mishra Advocate (appointed) for petitioner. Mrs. Bharti Dangre, Government Pleader respondents.

ig h
ooo 1 2 Both C/o Nagpur. 1 2 3

ba y

CRIMINAL WRIT PETITION NO.371 OF 2013 Mahesh S/o Janardan Gonnade, (In Jail), Convict No.C-7247, Kantilal S/o Nandlal Jaiswal, (In Jail), Convict No.C-8135, Central Prison,

PETITIONERS:

om

-VERSUSRESPONDENTS: State of Maharashtra through Secretary, Home Department, Mantralaya, Mumbai-400 004. The Divisional Commissioner, Nagpur Division, Nagpur. The Superintendent of Prison, Central Prison, Nagpur.

Mr. Nitesh Samundre

Advocate for the petitioners.

C ou
the for
::: Downloaded on - 24/03/2014 13:46:34 :::

Chandrashekhar Suresh Bhoyar, Convict No.C/153, Open Prison, Morshi, Distt. Amravti.

rt

wp272.12.odt Mrs. Bharti respondents. Dangre, Government

3/27
Pleader for

CORAM: B.R. GAVAI AND A.S.CHANDURKAR,JJ.

DATE OF RESERVING THE JUDGMENT ON: 27-01-2014. DATE OF PRONOUNCING THE JUDGMENT: 7TH

ORAL JUDGMENT : (Per A.S. Chandurkar, J)

to challenge validity of the proviso to Rule 19 of the Bombay (Furlough and Parole) Rules 1959 as

amended by the Prisons (Bombay Furlough and Parole) (Amendment)

ig h
Rules 2012. The earlier of 2012 has application

1.

These writ petitions filed by convicts seek

Parole) Rules 1959 would hereinafter be referred to

om

ba y

as the Rules of 1959.

BACKGROUND FACTS:

2.

Criminal Writ Petition No.272 of 2012 has

been filed on behalf of 78 convicts. It has been stated that in view of the amendment of 2012 to Rule 19 of the Rules of 1959, the petitioners are deprived from seeking release on parole within a period of one year from their release. been for Criminal preferred has Writ by a

Petition convict

No.355 whose

C ou
Bombay (Furlough parole

MARCH, 2014.

::: Downloaded on - 24/03/2014 13:46:34 :::

rt
and been

wp272.12.odt

4/27

rejected on the ground that he has sought release on parole within a period of one year from his earlier

petition

had

sought

parole

daughter's illness.

In Criminal Writ Petition No.366

of 2012, the petitioner is seeking release on parole on account of his father's serious illness. However, as the period of one year is yet to lapse from his earlier release, the petitioner has challenged the proviso to Rule 19 of the Rules of 1959 as the same prevents his release. Criminal Writ Petition No.371 of 2013

has

ig h
been filed by these criminal S. H. Bhatia, and Mr. filed by 78

challenging the aforesaid proviso to Rule 19 on the ground that there is an embargo on the right of a

ba y

prisoner to seek release on parole in view of amended provisions referred to above. All writ petitions were

om

directed to be heard together. Accordingly learned Counsel Radha Ms. Mishra Mrs. Sonali Samundre Saware for Ms. the

Nitesh

petitioners have argued in support of the petitions and Mrs. Bharti H. Dangre, Learned Government Pleader has opposed the petitions on behalf of the State.

3. that has

In Criminal Writ Petition No.272 of 2012 been convicts, it has been

C ou
on account of two convicts who

release. The petitioner in the said criminal writ

::: Downloaded on - 24/03/2014 13:46:34 :::

rt
his are

wp272.12.odt

5/27

stated that parole is granted in emergency situations that arise on account of serious illness or death of

restricting release on parole for only one occasion in a year, the convicts are unable to make themselves available in case there is a serious illness of a family member or for other situations as contemplated by Rule 19. It has, therefore, been stated that the restrictions

ig h
placed by Article 21 be so released

the proviso

C ou
to Rule 19 the Constitution on parole cannot

a family member. It has been urged therein that by

Rules 1959 deprive the petitioners of availing the right of parole in such situations thereby violating provisions India.

of

of

In so far as Criminal Writ Petition No.355

om

ba y

of 2012 and 366 of 2012 are concerned, the same have been filed by individual convicts raising a grievance that on account of the proviso to Rule 19 of the Rules 1959, they are unable to seek their release on parole despite the illness of a close relative. In Criminal Writ Petition No.371 of 2013, the action of the State Authorities in not accepting an application for release on parole on the ground that the period of one year after expiry of earlier release had not come to an end. prisoner to It has been stated that right of a be

restricted in such a manner. In this regard, reliance

::: Downloaded on - 24/03/2014 13:46:34 :::

rt
of of

wp272.12.odt

6/27

is placed upon the Division Bench judgment of this Court in the case of
Namdeo Tarfe Vs. State

4.

On

behalf

of

the

Superintendent of Prisons, Central Prison, Nagpur has filed an affidavit dated 19-6-2013 in Criminal Writ Petition No.303/2012. The stand taken in said

affidavit has been adopted as the stand in all other connected writ petitions. The respondents have

submitted that Rule 19 as amended is within the rule making

power

ig h
of the State It has amended. It is the and their nearest

contrary to the provisions of the Prisons Act, which by Section 59 empowers the State Government to frame

ba y

such

Rules.

further

considering the previous experience of the convicts to misuse and/or abuse benefit of parole leave, Rule 19 was accordingly In paragraph 11 of

om

aforesaid affidavit, it has been stated as under: "11. submitted that the

State of Maharashtra on the basis of material available with it found that the convicts are grossly misusing and abusing provision for grant of

parole leave. repeatedly

Most of the convicts frequently sought

parole leave on the ground of illness of relatives on one

C ou
respondents, Government and is been stated

Maharashtra and others reported in 2008(4) Mh.L.J. 341.

::: Downloaded on - 24/03/2014 13:46:34 :::

rt
of

the

not

that

wp272.12.odt pretext or the other. to and of It

7/27
was, impose just convicts

therefore, reasonable, restrictions

decided fair on release

on parole by introducing substituted

Rule 19. It is respectfully submitted that the respondent marked in as 1 is enclosing

herewith chart

showing

and duration of parole leave granted

jail

ig h
sentence The in a the dates leave and have granted 1 that who in terrorists their reported relevant on respectful

to all convicts presently undergoing Central 1 is Prison also as in of

Nagpur.

respondent

enclosing

herewith chart and

Annexure-R1B details parole

granted

convicts who have jumped their parole

ba y

leave benefit

respondent respectfully criminals sentence including

were

om

Central criminals

convicted for taking part in naxalite and operations This have fact also was

jumped widely

parole. in

newspaper 'The Hitavada'. A copy of the newspaper 05.07.2012 is cutting annexed

published

hereto marked as Annexure-R1C. In the most submission of the

C ou
Annexure-R1A the a details dates marked showing duration to those thus to abused them. the The most dreaded jail submits several undergoing Prison, who Nagpur were local daily
::: Downloaded on - 24/03/2014 13:46:34 :::

rt

wp272.12.odt

8/27
respondent 1 the substituted Rule 19 whose vires is under challenged is a fair, reasonable, just and practical step and measure adopted by the State

Government in plugging the loopholes in the jail administration and abuse and

rule

out

misuse

statutory parole." It is

provisions

further

submitted

the scheme of the Rules of 1959 with regard to grant of parole, it cannot be said that the proviso to Rule 19 violates the provisions of Article 21 of the

Constitution of India. The learned Government Pleader has relied upon judgment of the Constitution Bench of the Supreme Court in Sunil Fulchand Shaha Vs. Union

ba y

of India reported in 2000 (3) SCC 409 and another judgment of the Supreme Court in the case of State of Haryana and othes VS. Mohinder Singh reported in

om

(2000) 3 SCC 394. The learned Counsel, therefore, prayed for dismissal of the writ petitions. STATUTORY PROVISIONS:

5.

of the proviso to the amended provisions of Rule 19 of the Rules of 1959, it would be advantageous to refer to the relevant statutory provisions The while of

considering

Since there is a challenge to the validity

the

ig h
aforesaid

challenge.

C ou
to of the qua grant of that considering Rules
::: Downloaded on - 24/03/2014 13:46:34 :::

rt

wp272.12.odt 1959 have been framed by the State

9/27
Government in

exercise of powers conferred by Section 59 of the

"19. A prisoner may be released on parole for such period as the Competent Authority referred to in Rule 18 in its discretion may order, in case of serious illness, or death of any member of the prisoner's family or of his nearest relatives or for any other sufficient cause".

"19. When a prisoner released on parole :-

ig h
When a

Said Rule 21-11-1989 under:-

was thereafter amended after which it read

om

ba y

Rule 19 was thereafter again amended with effect from 7-2-2007 and it read as under:

A Prisoner may be released on parole for such period not exceeding thirty days at a time, as the Competent Authority referred to in rule 18, in its discretion may order, in cases of serious illness, or death of nearest relative such as mother, father, sister, brother, children, spouse of the prisoner, or in case of natural calamity such as house collapse, floods, fire. No such parole or extension of parole shall be granted without obtaining a police report in all cases except in the case of death of his nearest relatives mentioned above; Provided that a prisoner shall not be released on parole for one year after expiry of his last parole except in the case of death of his nearest relative mentioned above."

"19.

prisoner

C ou
on as may be may be

Prisons Act, 1894. Initially, Rule 19 read as under:

::: Downloaded on - 24/03/2014 13:46:34 :::

rt

wp272.12.odt

10/27
released on parole:"A prisoner may be released on parole for such period as the Competent Authority referred to in Rule 18 in its discretion may order, in case of serious illness, or death of any member of the prisoner's family or of his nearest relatives, or pregnant woman prisoner for delivery (except high security risk prisoner), or for any other sufficient cause."

By notification dated 23-2-2012, the State Government amended the Rules of 1959. By virtue of

said amendment, Rule 19 as it now stands reads as under:-

"19. When a prisoner may be released on parole.-- A prisoner may be released on parole for such period not exceeding thirty days at a time as the Competent Authority referred to in Rule 18 in its discretion may order, in case of serious illness or death of nearest relative such as father, mother, brother, sister, spouse, children or marriage of brother, sister and children of prisoner or pregnant woman prisoner for delivery (except high security risk prisoner) or in case of natural calamity such as house collapse, floods, fire and earthquake. No such parole or extension of parole shall be granted without obtaining a police report in all cases except in the case of death of his nearest relatives mentioned above: Provided that, a prisoner shall not be released on parole for the period of one year after the expiry of his last parole except in case of death of his nearest relatives mentioned above."

om

ba y

release of a prisoner within expiry of one year of

The above proviso to Rule 19 restricting

ig h

C ou

::: Downloaded on - 24/03/2014 13:46:34 :::

rt

wp272.12.odt

11/27

his earlier release on parole only in case of death of his nearest relative is the subject matter

As the principal challenge to the proviso to Rule 19 of Rules of 1959 is based on violation of provisions of Article 21 of the Constitution of

India, provisions of Article 21 of the Constitution of India are reproduced herein below. "Article 21": Protection of life and personal liberty.-No person shall be deprived of his life or personal liberty except according to procedure established by law".

LEGAL

POSITION

ig h
IN VIEW OF concept of Bench of a detenue. In

ba y

SUPREME COURT AND THE HIGH COURT.

6.

The

parole the

C ou
PRONOUNCEMENTS OF was examined Court Supreme that context,

challenge in the present writ petitions.

om

the

Constitution

case of Sunil Fulchand Shaha (supra). The question that was considered by the Constitution Bench was as to whether the period of detention gets automatically extended on account of the period of parole that is granted to while

considering the meaning of the word "Parole", it was observed thus:25. "Parole", however, has a different

::: Downloaded on - 24/03/2014 13:46:34 :::

rt
of THE by in

wp272.12.odt

12/27
connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. The dictionary meaning of "parole" is:

The Concise Oxford Dictionary (New Edition)

"The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behaviour; such a promise; a word of honour." Black's Edition)

ig h
Law

Dictionary

ba y

"Release from jail, prison or other confinement after actually serving part of sentence; Conditional release from imprisonment which entitles parolee to serve remainder of his term outside confines of an institution, if he satisfactorily complies with all terms and conditions provided in parole order. According to The Law Lexicon,"parole" has been defined as: "A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole." According to Words and Phrases: 'Parole' ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. People ex rel Rainone v.Murphy. 'Parole' does not vacate sentence imposed, but is merely a conditional suspension of sentence, Wooden v. Goheen.

om

C ou
-(6th
::: Downloaded on - 24/03/2014 13:46:35 :::

rt

wp272.12.odt

13/27
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. Jenkins v. Madigan.

om

26. 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 instructions, 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 v. Mohinder Singh to which one of us (Wadhwa,J) was a party. That distinction is explicit and I respectfully agree with that distinction. 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."

ba y

It was held by the Constitution Bench that the period of detention would not stand automatically extended by any period of parole granted to the detenue unless the order of parole or Rules or instructions

ig h

A 'parole' does not suspend or curtail the sentence originally imposed by the court as contrasted with a 'commutation of sentence which actually modifies it."

C ou
::: Downloaded on - 24/03/2014 13:46:35 :::

rt

wp272.12.odt specifically indicate as a term and

14/27
condition of

parole to the contrary. The decision in the case of

Haryana (supra) has been approved in the aforesaid decision of the Constitution Bench.

7.

In S. Sant Singh Vs. Secretary, Home Department,

Government of Maharashtra, Mantralaya Mumbai & Ors., 2006

ig h
1515,

CRI.

L.

J.

the

Full

considered the question as to whether the grant of parole amounted to suspension of sentence within the meaning of Section 432 of the Criminal Procedure Code (hereinafter referred to as the Code). The Rules of

1959 were also considered in the aforesaid judgment

ba y

and in that context, it was observed in paragraphs 22 and 23 as under:"22. It is seen that 'bail' and 'parole' operate in distinct fields although, the ultimate end is the release of the prisoner on certain terms and conditions. There is clear distinction between 'parole' and 'bail. 'Parole' has nothing to do with the actual merits on the matter i.e. the evidence which has been led against the convicted prisoner but 'parole' is granted in cases of emergency like death, illness of near relative or in cases of natural calamity such as house collapse, fire or flood. It is pertinent to note that in case of death of near relative, the Superintendent of Prison shall also be competent to release the convict on parole for a period not exceeding 15 days. Parole is

om

C ou
Bench of this

State

::: Downloaded on - 24/03/2014 13:46:35 :::

rt
of Court

wp272.12.odt

15/27
resorted to in cases of contingency. Looking to this fact it would not be expedient for the convict to approach the Courts and pray for temporary release especially in cases of death. The Prison Rules take care of such emergencies.

Rule 19 of the Rules of 1959 as it then existed prior to its amendment on 7-2-2007 was also taken into

account. It was held by the Full Bench that grant of

ba y

parole did not amount to suspension of sentence as contemplated by Section 432 of the Code. The Division Bench of this Court while

om

considering the scope and ambit of Rule 3 of Rules of 1959 in the case of
Pralhad Gajbhiye Vs. State of

Maharashtra and another reported in 1994 Mh.L.J., 1584 has observed thus.

"5. It is now well settled that furlough and parole have two different purposes. Furlough is a matter of right whereas parole cannot be claimed as a matter of right."

ig h

23. Thus, Bail and Parole operate in different spheres and in different situations. In India, there are no statutory provisions dealing with the questions of grant of parole. The Code of Criminal Procedure does not contain any provision for grant of parole. By an administrative instruction,however, rules have been framed in various States regulating the grant of parole. Thus, the action of grant of parole is generally speaking an administrative action."

C ou
::: Downloaded on - 24/03/2014 13:46:35 :::

rt

wp272.12.odt 8.

16/27
Rule 19 of the Rules 1959 permits release

of a prisoner on parole for such period not exceeding

death

of

close

relatives

or

calamities.

The petitioners have no grievance with

regard to the provisions of Rule 19 in so far as they recognize the right of a prisoner to be released on parole. However, the proviso to Rule 19 restricts the release of a prisoner on parole for a period of one year after the expiry of his last parole except in case of death of his nearest relatives mentioned above. The restriction as imposed by the proviso has thus, led the petitioners to make a grievance that

ba y

such

restriction

ig h
impinges the 21 of the

upon

right as guaranteed by Article 21 of the Constitution of India. Thus, challenge to the aforesaid

om

proviso will have to be considered in the aforesaid background.

9.

Article

ensures protection of the life and personal liberty of every person. A person can be deprived of his life or personal liberty only according to the procedure established by law. In so far as the aspect of

"procedure established by law" is concerned, Section

C ou
in case of their Constitution of

30 days at a time in cases of serious illness or

fundamental

::: Downloaded on - 24/03/2014 13:46:35 :::

rt
natural India

wp272.12.odt

17/27

59 of the Prisons Act confers power on the State Government to make such Rules for the purposes of

rule making power conferred by the Prisons Act, the Rules of 1959 have is been no framed by the State writ

Government.

There

challenge

petitions to the competency of the State Government to frame such Rules in exercise of the power It is

conferred by Section 59 of the Prisons Act.

thus, clear that the petitioners have no grievance in so far as framing of the Rules of 1959 are concerned. Therefore, the Rules of 1959 as framed indicate that the "procedure established by law" has been followed while seeking to deprive the petitioners of their

ba y

personal liberty while they are serving the sentence imposed upon them.

om

10.

the Rules of 1959 is that the same imposes excessive restrictions on the right of a prisoner to be

released on parole. According to the petitioners, the situations as contemplated in Rule 19 of the Rules of 1959 are those situations over which, neither the prisoner, nor his family members have any control. Hence, according to them by not providing for release on parole within a period of one year after expiry of

The challenge to the proviso to Rule 19 of

ig h

C ou
in these

release on furlough and parole.

In exercise of said

::: Downloaded on - 24/03/2014 13:46:35 :::

rt

wp272.12.odt last parole, except in case of death

18/27
of near

relative, if any natural calamity or serious illness

last parole, then the prisoner cannot be released on parole. depriving This according to the petitioners results in them of their personal liberty and the

same, therefore, violates the provisions of Article 21 of the Constitution of India. This is, therefore,

the principal challenge to the proviso to Rule 19 of the Rules of 1959.

11. as

H
While by

ig h
considering the rights under petitioners imposed

the

raised

petitioners

fundamental

ba y

Constitution of India, it will have to be kept in mind that the are prisoners them who are

undergoing

sentences

om

committed an offence.

The sentence of conviction has

been imposed upon each of them in accordance with law. However, though convicted and undergoing such sentence, the petitioners nevertheless are entitled for protection of their fundamental rights under the Constitution of India. The question, therefore, is

whether the fetters imposed by the proviso to Rule 19 of the Rules 1959 for release on parole is reasonable and justified in the facts and circumstances of the

C ou
aforesaid of breach 21 of of Article upon for

occurs within a period of one year from expiry of the

challenge their the

::: Downloaded on - 24/03/2014 13:46:35 :::

rt
having

wp272.12.odt

19/27

situation or whether the same deprives a prisoner of his personal violation of liberty in a manner of that results 21 of

Constitution of India.

12. absolute

The right to be released on parole is not right. It is exercised on the basis of

administrative

instructions

Such right can be exercised subject to existence of situations contemplated by Rule 19 of the Rules of 1959. It is necessary to note that initially when Rule 19 was framed, there was no such embargo on the release of a prisoner within a period of one year of expiry of the previous release on parole. The proviso

ba y

to Rule

19

ig h
was first said proviso dated

introduced

Rules in the year 1989. This position continued till 7-2-2007 when was deleted. Now by

om

notification

23-2-2012, the State

has again added said proviso. It is thus, seen that the restriction on release on parole within a period of one year of expiry of last parole was initially placed and thereafter, deleted. It has now again

been placed by virtue of the latest amendment to Rule 19. A perusal of the reply filed by the State

and the stand taken therein indicates that there was

C ou
framed by the by amending

provisions

Article

Government

::: Downloaded on - 24/03/2014 13:46:35 :::

rt
in the State. said

wp272.12.odt

20/27

material available with the State Government on the basis of which it found that the convicts

of

parole

leave. repeatedly

It

has and

been

convicts

frequently

leave on account of illness of nearest relatives. There were also instances and leave. not of convicts abusing after

aforesaid availing

benefit parole

ig h
the initial present been the effected basis "mischief taken when

This

indicates that with a view to curb the misuse of aforesaid provisions for grant of parole leave, the State thought it fit to impose some restrictions in the matter of grant of parole leave.

ba y

13.

As and has on

introduction, of

deletion Rule 19

reintroduction and the

C ou
stated that sought reporting stand, back proviso is same experience of will have to material words

grossly misusing and abusing the provisions for grant many

therefore,

subsequent to

om

justified

of past

State, the principles contained in the Rule laid down in Heydon's case - (1584) 3 Co. Rep.7a, P. 7b:7 6ER 637 or the rule" be

considered. Though it is true that normally aid of said Rule is the are

capable of two or more constructions, it is equally well settled that the principles contained in said Rule can be kept in mind while considering the effect

::: Downloaded on - 24/03/2014 13:46:35 :::

rt
were parole being the

wp272.12.odt of the provision to refer under to the challenge. decision It of

21/27
would be

apposite

the

Kalliani

Amma

(SMT)

and

others

others, reported in (1996) 4 Supreme Court Cases 76 as

under:

om

"69. The learned Counsel for the appellant tried, at this stage, to invoke Heydon's Rule which is a sound rule of construction of a statute firmly established in England as far back as in 1584 when Heydon's case was decided that for the true interpretation of all statutes in general, four things are to be discerned and considered: (1) what was the common law before the making of the Act, (2) what was the mischief and defect for which the common law did not provide, (3) what remedy Parliament hath resolved and appointed to cure the disease of the commonwealth, and (4) the true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy... 72. Heydon's Rule is generally invoked where the words in the statute are ambiguous and/or are capable of two meanings. In such a situation, the meaning which avoids the mischief and advances the remedy, specially in the case of a beneficial statute, is adopted. There is some controversy whether Heydon's Rule can be invoked in any other situation especially where the words of the statute are clear and unambiguous. In CIT v Sodra Devi it was indicated that the rule in Heydon's case is applicable only when the words in question are ambiguous

ba y

ig h

C ou
-VersusK. Devi

Court in the case of Parayankandiyal Eravat Kanapravan

and

::: Downloaded on - 24/03/2014 13:46:35 :::

rt
Supreme

wp272.12.odt

22/27
and capable of more than one meaning. That is what was expressed by Gajendragadkar, J. in Kanai Lal Sur v. Paramnidhi Sadhukhan. In Maunsell v. Olins ALL ER at p.29, Lord Simon explained this aspect by saying that the rule in Heydon's case is available at two stages; first before ascertaining the plain and primary meaning of the statute and secondly at the stage when the court reaches the conclusion that there is no such plain meaning. 73. Be that as it may, we are not invoking the rule but we have nevertheless to keep in mind the principles contained therein to examine and find out whether the mischief from which the earlier legislation suffered on account of use of certain words has since been removed and whether the subsequent legislation is constitutionally valid and, on account of use of new phraseology, implements effectively the intention of the legislature in conferring the status of legitimacy on children, who were, otherwise, illegitimate."

ba y

14. can

om

be

H
taken

In view of what has been stated above, what into to account the is the law what that was was the

prevailing

prior

mischief and defect for which said provision did not provide and the manner in which said mischief and defect has been sought to be now resolved. From the material on record, it is clear that the State

Government noticed that the provision for grant of parole leave was being misused on the pretext of

ig h

amendment,

C ou
::: Downloaded on - 24/03/2014 13:46:35 :::

rt

wp272.12.odt

23/27

illness of nearest relatives. Considering its past experience of such repeated and frequent requests for

a reasonable and just restriction on release of a prisoner on parole by introducing proviso to Rule 19. The mischief of repeated and frequent requests for release was, therefore, sought to be remedied by

introducing proviso to Rule 19 of the Rules of 1959. If the State

ig h
Government State charts

on the

before it found it proper to impose some reasonable restrictions in the matter of release of a prisoner on parole, then in exercise of its rule making power, the State Government was within its rights in seeking to impose such restrictions by introducing proviso to

ba y

Rule 19 of Rules of 1959. The material on the basis of which the Government decided to act and

which has been placed on record in the form of an affidavit with appended thereto is not

om

questioned or disputed by the petitioners. It is, therefore, clear that valid circumstances existed so as to compel the State Government to look into the matter and introduce proviso to Rule 19 with a view to place a reasonable restriction on the right of a prisoner to be released on parole.

15.

It would be necessary to examine the scheme

C ou
basis of

parole leave, the State Government decided to impose

::: Downloaded on - 24/03/2014 13:46:35 :::

rt
material

wp272.12.odt with regard to the Rules for grant of

24/27
parole as

contained in Rules 18 to 28 of the Rules of 1959.

to sanction parole.

Rule 24 lays down the conditions

subject to which prisoners may be granted parole. Rule 25 prescribes for extension of period of parole. The competent authority can if an application is made by the prisoner or on his behalf before the expiry of the period of parole, extend the period of for such further on period or periods on

ig h
which the it on is clear parole of the is

conditions

prisoner

granted parole. It is, however, provided that the total period of parole as extended shall not exceed 90 days.

ba y

Thus, release

C ou
the was that for while such Rule period contingencies for extending

Rule 18 refers to the authorities who are competent

originally

permits

exceeding 30 days at a time, under Rule 25 the period of parole can be extended up to 90 days. It is, therefore, clear that if a prisoner is released on parole on account specified

om

therein and if before expiry of the initial period of parole, an application made the

period of parole, the extension can be granted by the competent authority. It is pertinent to note that

the extension of period of parole is not restricted on the occurrence of a particular contingency, but is

::: Downloaded on - 24/03/2014 13:46:35 :::

rt
parole same 19 not

wp272.12.odt

25/27

available in respect of any/all contingencies that have been specified in Rule 19. This, therefore,

extension of period of parole up to 90 days depending upon the contingency.

16.

As noted above, the right to be released on

parole is not an absolute right. The same can be availed of in case of occurrence of the contingencies mentioned in Rule 19 of the Rules 1959. Thus, in

case of serious illness, delivery of a pregnant woman prisoner or in case of house collapse, floods, fire or earthquake, a prisoner if released on parole can seek extension of the period of parole if the

ba y

contingencies so warrant up to a period of 90 days. The proviso to Rule 19 has merely restricted the

release on parole for a period of one year after the expiry of last parole except in case of death of the nearest relative mentioned in Rule 19. It, therefore, cannot be said that the entitlement of a prisoner to be released on parole is totally taken away. The

om

same has merely been restricted and made permissible only if within a period of one year after the expiry of last parole, death of a close relative takes

place.

one year of expiry of the last parole can neither be

Such restriction on release on parole within

ig h

C ou

indicates that the Rules of 1959 contemplate even

::: Downloaded on - 24/03/2014 13:46:35 :::

rt

wp272.12.odt

26/27

said to be unreasonable or unjustified. We have found that the State was required to introduce

Moreover, the right to be released on parole is on the basis of administrative instructions framed in exercise of the power conferred by Section 59 of the Prisons Act. Rules of By framing proviso to Rule 19 in the there is no dent caused to the

1959,

personal liberty of a prisoner whose entitlement to be released on parole has been kept intact. It,

therefore, cannot be said that by introducing proviso to Rule 19 of the Rules of 1959, the same results in breach of provisions of Article 21 of the

Constitution of India.

ba y

raised is without any substance and must fail.

17.

In so far as the reliance placed on the

om

Division Bench judgment of this Court in the case of Namdeo Tarfe (supra) is concerned, the said judgment considers the provisions of Rule 19 as it stood after its amendment with effect from 7-2-2007. Proviso to

Rule 19 was not in existence and in that context, the Division Bench of this Court observed that Rule 19 as it stood did not put any embargo on the right of the prisoner seeking parole within one year from the date of last surrender. In the present case, the validity

ig h

The challenge, therefore, as

C ou

restriction on account of its earlier experiences.

::: Downloaded on - 24/03/2014 13:46:35 :::

rt
such

wp272.12.odt

27/27

of the proviso to Rule 19 as amended on 23-2-2012 is under avail challenge. in the The aforesaid context judgment as the is

provisions were considered therein.

therefore, placed on said judgment is misconceived.

18.

As the challenge to the validity of proviso

to Rule 19 of the Rules of 1959 has been found by us to be without any merit, Criminal Writ Petition No. 272 of 2012 that has been filed by 78 convicts and Criminal Writ Petition No.371 of 2013 filed by 2

convicts for aforesaid declaration, therefore, stand dismissed. and Similarly, in Writ Petition No.355/2012 Writ Petition No.366 of 2012, the

Criminal

om

ba y

petitioners seek grant of parole before expiry of period of one year of expiry of their last parole. In the view that we have taken, Criminal Writ Petition Nos.355/2012 and 366/2012 are also dismissed. Fees of the learned Counsel appointed to represent the petitioners in Criminal Writ Petition Nos.272/2012, 355/2012 and 366/2012 are quantified at Rs.1500/- each

ig h
JUDGE

//MULEY//

C ou
JUDGE

present

unamended

The reliance,

::: Downloaded on - 24/03/2014 13:46:35 :::

rt
of no