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Judgment
The petitioners who are in Jail at present have approached this Court seeking direction to the respondent to consider their case for grant of
parole. The petitioners are undergoing a punishment of life imprisonment because of their conviction under Section 376(2)(g), 506(b) and 376(2)
(g) of IPC, vide judgment dated 15.06.2013.
Against the said conviction a Criminal Appeal No.887/2013 is still pending before this Court. The petitioners have been denied the benefit of
suspension of sentence i.e. bail and they are in jail since the year 2012. During this period, the petitioners were extended the benefit of parole twice
as per the provisions of the Prisoners (Madhya Pradesh Amendment) Act, 1985 and the M.P. Prisoners Leave Rules, 1989.
In the year 2014, the petitioners were granted parole three times and in the year 2015 they were granted for one time as per law. The
petitioners again submitted an application for grant of parole but vide letter dated 08.10.2015, the respondents have declined due to interim order
granted by the Apex Court in Writ Petition (Crl.) No.48/2014 dated 23.07.2015, hence, the present petition before this Court.
After notice, the respondents have filed return by submitting that the petitioner are suffering life imprisonment in which no remission is
permissible. The Constitutional Bench has decided the reference case which is reported in (2016)7 SCC 1 (Union of India Vs. V. Sriharan Alias
Murugan and Others) by remanding the matter back for further direction by the three Judges Bench and same has not been decided so far,
therefore, the petitioners are not entitled for the parole.
The contention of Shri Shashank Sharma, learned counsel for the petitioner is that the petitioners may not be entitled for remission because they
are undergoing life sentence but the grant of parole is altogether different from remission. By interim order dated 23.07.2015, the Apex Court has
restrained the State Government for exercising their power of remission to life convicts. The period of parole is always included in the sentence.
The grant of parole is governed under Section 31 -A of the M.P. Prisoners Leave Rules, 1989.
It is not disputed that the petitioners were getting the benefit of parole. They have been denied the said benefit after interim order dated
23.07.2015 passed by the Apex Court in case of Union of India Vs. V. Sriharan Alias Murugan and Others (Supra). By the said order, the State
Governments were restrained from exercising their power of remission to life convicts. The Writ Petition (Crl.) No.48/2014 in which the interim
order was passed has finally been decided by the Apex Court on 02.12.2015 and same is reported in (2016)7 SCC 1 in which the Apex Court
has held that imprisonment of life means till the end of conviction of life with or without any scope of remission.
In case of Dadu @ Tulsidas Vs. State of Maharashtra, reported in 2000(8) SCC 437, the Apex Court has held that parole does not amounts
suspension, remission or commutation of sentence & Section 32(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 does not takes
away the right of parole of a convict and also the power of the authorities to grant the parole.
By interim order dated 23.07.2015, the Apex Court has restrained the State Government for exercising their power of remission to life convicts
but period of parole is always included in the period of sentence, therefore, if the life convicts are released on parole, their sentenced would not be
reduced. Section 31 - A of the Prisoners (Madhya Pradesh Amendment) Act, 1985 clearly provides that the period of leave of prisoner under
sub-section (1) shall count towards the total period of his sentence. Section 31 -A is reproduced below:
31-A. Grant of leave to Prisoners - (1) Subject to the provisions to this part and to such conditions as may be prescribed, the State Government
or any authority to which the State Government may delegate its powers in this behalf may grant leave to any prisoner who has been sentenced to
a term of imprisonment of not less than three years, for a period not exceeding twenty one days in a year, excluding the time required for journeys
to the first place of his visit immediately after departure from the prison and from the place of last visit to the persons back.
(2) The provisions of sub-section (1) shall not apply to a prisoner who has been classified as a habitual criminal for the purpose of the rules for the
time being in force made under the Prisons Act, 1894 (IX of 1894) and who has more than three previous convictions.
(3) Leave shall not be admissible to a prisoner during a year under sub-section (1) -
(i) for more than two occasions;
(ii) for a period of less than ten days; and
(iii) unless a priod of three months has elapsed since the expiration of leave last availed of during the year and the commencement of the leave
applied for.
(4) No prisoner shall be granted leave under subsection (1), unless,-
(a) he has at the time of the grant of lave served one-half of his sentence including remission, or a period of not less than two years of his sentence,
including remission, whichever is less;
(b) he has not been punished for a prison offence under Section 46 of the Prisons Act, 1894 (IX of 1894) during twelve months preceding the
date of commencement of leave applied for.
(5) The period of leave of a prisoner under sub-section (1) shall count towards the total period of his sentence.
(6) The authority directing the grant of leave to any prisoner under sub-section (1) may require him to enter into a bond with or without sureties for
due observance of conditions specified in the direction.
(7) If any prisoner granted leave under sub-section (1) fails to fulfill any of the conditions imposed upon him under the said sub-section or in the
bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to penalty thereof.
(8) If a prisoner has violated the conditions of leave or bond, he shall not be entitled to leave under sub-section (1) during the remaining period of
his sentence.
In view of the above settled position of law, the application of the petitioner can be considered under the provisions of M.P. Prisoners Leave
Rules, 1989, therefore, the writ petition deserves to be allowed. The respondents are directed to consider the application of the petitioners for
grant of parole in accordance with law. The writ petition is allowed. No orders as to costs. CC as per rules.