Essay on Judicial Trend of Parole System in India !
The courts in India have generally favoured the view that the prisoners who have been incarcerated or kept in prison without trial for a long time, should be released on parole to maintain unity of family. It may be useful to refer to some of the decisions to support this contention.
The need to paroling out long-term prisoners periodically for reasonable spells, subject to sufficient safeguards ensuring their proper behaviour outside and prompt return inside, was highlighted by the Supreme Court in Hiralal Mallick v. State of Bihar. In this case the appellant was found guilty of the offence under Section 326 (causing grievous hurt) of the Indian Penal Code and sentenced to eight years’ imprisonment.
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He was only 12 years of age at the time of commission of the offence. The High Court reduced the sentence to four years keeping in view the tender age of the accused. The Supreme Court directed release of the appellant on parole for reasonable spells so that his family ties are not snapped for long being insulated from the world and he does not become beastial and dehumanised.
The Apex Court, however, noted that granting of parole for reasonable spells is subject to sufficient safeguards ensuring prisoner’s proper behaviour outside the prison and prompt return inside on completion of parole term.
The Supreme Court, in Dharamvir v. State of Uttar Pradesh, was once again called upon to consider the desirability of release of long-term prisoners on parole at regular intervals so that they are not totally cut-off from the society. In the instant case, the appellant was found guilty of murder and convicted for imprisonment for life.
There being no scope for reduction of period of sentence, the Apex Court found parole desirable in such cases. It therefore, issued directions to the State Government and the jail authorities that such prisoners be allowed to go on parole for two weeks once in a year throughout the period of imprisonment, provided they behaved well while on parole.
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The Apex Court, in Suresh Chandra v. State of Gujarat, pointed out the importance of the penological innovation in the shape of parole to check recidivism. It recommended liberal use of parole as a viable alternative for reducing overcrowding in prisons.
In Krishanlal v. State of Delhi, the Supreme Court refused to accept economic necessity as a relevant factor for reducing the period of imprisonment for the offence of forgery. The Court, however, agreed that the accused could be released on parole for reasonable spells in such cases.
In Babulal Das v. State of West Bengal, Mr. Justice Krishna Iyer of the Supreme Court (as he then was) struck a discordant note in adopting the observation made by the Calcutta High Court and observed:
“It is fair that persons kept incarcerated and embittered without trial should be given some chance to reform themselves by reasonable recourse to parole power under Section 15 of the Maintenance of Internal Security Act, 1971.”
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In Samir Chatterjee v. State of West Bengal, the Supreme Court set aside the order of the Calcutta High Court releasing on parole a person detained under Section 3 (1) of MISA and disfavoured the observation that long term preventive detention can be self-defeating and criminally counter-productive.
In Smt. Poonam Lata v. Wadhawan and others, where a person detained under COFEPOSA Act of 1974 was released under an order of the Supreme Court on parole, it was held that the period of parole has to be excluded in reckoning the period of detention. In the instant case, the detenu was engaged in receiving smuggled goods from across the Indo-Nepal border and was making payments in foreign currency and remitting the sale proceeds of such smuggled goods out of country in shape of U.S. dollars with the help of others.
The counsel for the detenu Shri Jethmalani had contended that preventive detention was not a sentence by way of punishment and therefore, the concept of serving out the sentence which pertains to punitive jurisprudence, cannot be imported within the realm of preventive detention.
This decision (i.e., Smt. Poonam Lata’s case) has, however, been overruled by the Supreme Court by its judgment in Sunil Fulchand Shah v. Union of India & other which decided that parole may be granted by way of temporary release as contemplated by Section 12(1) or 12(1A) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (COFEPOSA) where detenu has approached the Government for securing release on parole.
The grant of parole to such detenus under COFEPOSA Act is an administrative decision to be taken by the Government or its functionaries and the courts cannot, generally speaking, exercise the power to grant temporary parole because of the bar of judicial intervention under Section 12(6) of the COFEPOSA.
This bar, however, does not affect the jurisdiction of High Court under Article 226 or of Supreme Court under Arts. 32, 136, 142 of the Constitution of India. The Supreme Court further ruled in this case that the period of detention under Section 10 of COFEPOSA has to be computed from the date of actual detention and not from the date of order of detention.
This in other words, means that an order made under Section 12 of the temporary release of a detenu on parole does not bring the detention to an end for any period and does not interrupt the period of detention. It only changes the mode of detention by restraining the movement of the detenu in accordance with the conditions prescribed in the order of parole. In short, the period of parole has to be counted towards total period of detention unless rules prescribe otherwise.
In Gurdeep Bagga v. Delhi Administration, a petition by life convict for parole on the plea of illness of mother was rejected by the High Court on the ground that the petitioner was earlier continuously on parole for more than two years and he had two elder sisters to look after the ailing mother. The Supreme Court, however, took a lenient view and recommended annual leave for life convict to maintain unity of family.
In Veerumchanni Raghvendra Rao v. State of Andhra Pradesh, the Supreme Court ruled that release on parole and suspension of sentence during pendency of appeal in Supreme Court is liable to be struck down being ultra vires the statutory powers of State Government.
The Andhra Pradesh Parole Rules, 1981 (Rule 23), and Andhra Pradesh Prison Rules, 1979 [Rule 974 (2)] were struck down in this case being inconsistent with Section 432(5) read with Section 389 of the Code of Criminal Procedure, 1973.
In its landmark decision in Kesar Singh Guleria v. State of Himachal Pradesh, the Supreme Court observed that for exercising the power, function and duty to temporarily release the prisoners on parole, the paramount consideration which the releasing authority shall bear in mind is that the right to be released is not defeated merely because the prisoner on account of his impecunious condition is unable to offer a security bond or surety bond.
The discretion to waive the requirement of furnishing bond should be exercised in cases of poor prisoners bearing in mind other relevant considerations of family-ties, roots in community and social conditions etc.
In a criminal appeal decided by the High Court of Punjab & Haryana on 15th November, 1994, the question in issue was about the release of a Army Prisoner on Parole. It was held that when an Army personnel is convicted by a Court Martial and undergoing sentence in civil jail and is dismissed from service as a result of this sentence, or ceased to be subject to the Army Act, 1950, it would be erroneous on the part of the Army authorities to think that the prisoner having been handed over to civil (police and jail) authorities, they (i.e., military authorities) had no authority to release him on parole.
The High Court ruled that despite the fact that the prisoner has otherwise ceased to be subject to Army Act, he could be still kept, removed, imprisoned and punished by the Army authorities as if he continued to be subject to Sections 179 and 123-B of the Army Act.
The Court therefore, issued a direction to Army Authorities to release the petitioner on parole for a period of four weeks to the satisfaction of the District Magistrate, Chandigarh. In this case, the Jail authorities had declined to release the prisoner on parole on the ground that he had been convicted by the Court Martial and therefore, civil authorities had no jurisdiction to release him.
The Supreme Court in its decision in Ramamurthy v. State of Karnataka, has observed that overcrowding in prisons can be considerably reduced by release of prisoners on parole, which is a conditional release of an individual from prison after he has served part of the sentence imposed upon him.
Recommending liberal use of parole, the Court referred to the Report of All India Committee on jail reforms headed by Justice A. N. Mulla. (1980-83) wherein the Committee stated that the effect of parole is premature release which is an accepted mode of incentive to a prisoner, as it saves him from the extra period of incarceration and at the same time also helps in his reformation and rehabilitation.
In the case of State of Haryana v. Hasmat, the accused (respondent) along with some others was found guilty of offences punishable under sections 302, 307, 148 read with section 149 IPC and was sentenced to undergo imprisonment for life. During the pendency of his appeal he was in jail and was allowed the benefit of release on parole three times and had not misused liberties during parole period. On this ground he contended that he should be given the benefit of suspension of sentence during pendency of his appeal and be released on bail. Rejecting the plea of the respondent (accused), the Supreme Court observed:—
“Section 389 of Cr. P.C. deals with suspension of execution of sentence (in this case life imprisonment) pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of section 389 Cr. P.C. is the requirement for the Court to record reasons in writing for ordering suspension of the sentence or order appealed. If he is in confinement, the said Court can direct that he be released on bail or on his own bond. This clearly indicates that an order directing suspension of sentence during appeal and grant of bail should not be passed as a matter of routine.”
In this case, the High Court had granted bail primarily on the ground that after conviction, the respondent (accused) had been granted parole on three occasions and there was no allegation of any misuse of liberty during the period of parole. But the Supreme Court set aside the order of the High Court on the ground that in case of offence like murder, the Court should consider the relevant factors like the manner in which the offence was committed and its gravity etc. and then consider whether after being convicted for the offence will it be desirable to order his release on bail.
The High Court had not considered this aspect at all. The Court further referred to its earlier rulings in Vijay Kumar v. Narendra & others, and Ramji Prasad v. Rattan Kumar Jaiswal and another, wherein it was held that in cases involving conviction under section 302, IPC suspension of sentence and bail should be granted only in very exceptional cases.
The question for decision before the Supreme Court in the case of State of Madhya Pradesh v. Kusum, related to entertaining applications of prisoners whose appeals for bail etc. were pending or those whose bail applications had been rejected and they had moved the High Court in appeal against such rejection.
In the instant case, the respondent, a woman accused was convicted for an offence of murder punishable under Section 302, IPC and was sentenced to rigorous imprisonment for life. She had filed an application for release under the Madhya Pradesh Prisoners’ Release on Probation Act, 1954 and the rules framed there under in 1964 (Rule 2 in this case).
The circular dated 3-8-2005 issued by Inspector General of Prisons stated that prisoners whose appeals are pending before the Appellate Court are not entitled to be considered for the purpose of release on probation. The respondent’s prayer was therefore, rejected by the Probation Board on 8-8-2005 with the approval of the State Government. In appeal, the High Court of Madhya Pradesh upheld the decision of the State Government and maintained the legality of the circular issued by the Inspector General Prisons.
In appeal against the judgment of the High Court, the Supreme Court referred to its earlier ruling in the case of Arvind Yadav v. Ramesh Kumar and others, and held that, “the convicts have no indefeasible right to be released. The Probation Board and the State Government are required to take into consideration the relevant factors before deciding or declining the release and the facts of individual case are to be taken into consideration for deciding the issue of release.”
In Arvind Yadav’s case the accused Ramesh Kumar was accused in 14 cases filed under various sections of IPC and the manner of committing murder was gruesome and brutal and therefore, he was rightly denied release on probation. The rules provide for a detailed procedure for consideration of application for release of prisoners on probation.
Once rejected, an application for release can be filed again after two years. The Board consists of Home Secretary of the State, I.G. Prisons or Deputy I.G. and another member. Therefore, there was no infirmity in the rejection of respondent’s application for release in the instant case and appeal was dismissed.