Bombay HC: What is basic concept of Judicial Appraisal by Session Judge and its procedure before imposing any punishment involving denial of privileges on any prisoner?

 In the case of Sunil Batra (II) Vs. Delhi Administration MANU/SC/0184/1978 : (1980) 3 SCC 488, the Apex Court issued several directions to the States. Direction No. 6 in paragraph No. 78 reads thus-

"6. No solitary or punitive cell, no hard labour or dietary change as painful additive, no other punishment or denial of privileges and amenities, no transfer to other prisons with penal consequences, shall be imposed without judicial appraisal of the Sessions Judge and where such intimation, on account of emergency, is difficult, such information shall be given within two days of the action." {Para 13}

14. Thus, the Apex Court laid down that no punishment involving denial of privileges shall be imposed on any prisoner without Judicial appraisal by the learned Sessions Judge. Based on the said decision, a Circular was issued on 2nd January, 1984 by the State Government laying down that no punishment of withdrawal of privileges shall be imposed on a prisoner without Judicial appraisal by the learned Sessions Judge.

17. Now, we come to the Judicial appraisal. In view of the directions of the Apex Court, no punishment can be imposed on a prisoner without Judicial appraisal by the learned Sessions Judge. The very concept of Judicial appraisal requires an application of mind by the learned Sessions Judge. Therefore, whenever a case is sent for the Judicial appraisal with a proposal to impose punishment by exercising powers under Section 48A of the Prisons Act read with Rule 23-A of the Amended Remission Rules of 2011, it is the duty of the Prison Authority to forward to the learned Sessions Judge along with its proposal, a copy of the reply to the show cause notice submitted by the prisoner along with the material relied upon by the prisoner in support of the reply. When the learned Sessions Judge makes Judicial appraisal, it is necessary for the learned Sessions Judge to come to a conclusion whether or not there was a sufficient cause, which is contemplated by Section 48A of the Prisons Act. Thus, the learned Sessions Judge, while making Judicial appraisal will have to record his opinion whether there was sufficient cause for non-observance or breach of the terms and conditions on which parole or furlough was granted. Depending upon the facts of the case, the learned Sessions Judge may recommend a punishment which is prescribed under Rule 23-A of the Amended Remission Rules of 2011 or recommend that either no punishment should be imposed or a lesser punishment be imposed. Therefore, Judicial appraisal cannot be an empty formality.

18. We may hasten to add here that while recording opinion based on the Judicial appraisal, the learned Sessions Judge is not expected to write a Judgment or a Judicial Order. However, the Order made by the learned Sessions Judge on Judicial appraisal must show application of mind to the cause pleaded by the prisoner and the brief reasons for coming to a particular opinion should be recorded.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition Nos. 2789 of 2018 and 34 of 2019

Decided On: 30.01.2019

Vishal Baban Vanne and Ors. Vs. The State of Maharashtra

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and A.S. Gadkari, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation:  MANU/MH/0278/2019.

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LLM Notes: Life Imprisonment in Indian Law: Statutory Provisions and Landmark Judgments

 Introduction

Life imprisonment in India is a significant form of punishment under the criminal justice system, often imposed for heinous crimes such as murder, terrorism, and kidnapping. While it is considered less severe than the death penalty, life imprisonment entails prolonged incarceration, often for the convict's entire natural life. This article explores the statutory provisions governing life imprisonment in India and examines landmark judgments that have shaped its interpretation.

1. : This section categorizes punishments under the IPC, including "imprisonment for life." Life imprisonment is defined as incarceration until the convict's death unless commuted by the appropriate government.

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Supreme Court : Parole period will be excluded while considering the period of actual imprisonment

 Now, so far as the submission on behalf of the Petitioners relying upon Section 55 of the Prisons Act, 1894 that even on parole the prisoners shall be deemed to be in custody and therefore, the said period is to be included for the purpose of actual imprisonment is concerned, the aforesaid has no substance. Section 55 of the Prisons Act, 1894 shall not be applicable with respect to release on parole. Section 55 of the Prisons Act, 1894 shall be applicable in a case where a prisoner is taken out from any prison, he shall deem to have been in prison. However, the same shall not be applicable with respect to release on parole. {Para 9}

10. If the submission on behalf of the prisoners that the period of parole is to be included while considering 14 years of actual imprisonment is accepted, in that case, any prisoner who may be influential may get the parole for number of times as there is no restrictions and it can be granted number of times and if the submission on behalf of the prisoners is accepted, it may defeat the very object and purpose of actual imprisonment. We are of the firm view that for the purpose of considering actual imprisonment, the period of parole is to be excluded.

IN THE SUPREME COURT OF INDIA

Special Leave Petition (Crl.) Nos. 12574-12577 of 2022 (Arising Diary No. 29535 of 2022)

Decided On: 05.01.2023

Rohan Dhungat and Ors. Vs. The State of Goa and Ors.

Hon'ble Judges/Coram:

M.R. Shah and C.T. Ravikumar, JJ.

Author: M.R. Shah, J.

Citation:  MANU/SC/0012/2023.

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Leading Supreme Court judgment on basic concept of releasing prisoner on Parole

To answer the question whether the period of detention would stand automatically extended by any period of parole granted to a detenu, we need to examine the concept and effect of parole more particularly in a preventive detention case.

10. Bail and parole have different connotations in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the CrPC 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.

In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word 'Bail' is surety. In Halsbury's Laws of England (Halsbury's Laws of England, 4th Ed., Vol. 11, Para 166), the following observation succinctly brings out the effect of bail:

The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody or his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handling him over to the custody of law and he will then be imprisoned.

11. 'Parole', however, has a different 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 behavior; such a promise, a word of honour.

BLACK'S LAW DICTIONARY - SIXTH EDITION

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 [P. Ramanatha Aiyar's The Law Lexicon with Legal Maxims, Latin Terms and Words and Phrases; p. 1410]. '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 (Words and Phrases (Permanent Edition); Vol. 31; Pp. 164, 166, 167; West Publishing Co.]

'Parole' ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. People ex. rel. Rainonev. Murphy, 135 NE 2d 567, 571, 1 N.Y. 2d 367, 153 N.Y.S, 2d 21,26.

'Parole' does not vacate sentence imposed, but is merely a conditional suspension of sentence. Wooden v. Goheen Ky. 255 SW 2d 1000, 1002.

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. Madigari C.A. Irid, 211 F. 2d904, 906.

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.

12. In this country, there are no statutory provisions dealing with the question of grant of parole. The CrPC 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 MANU/SC/0073/2000 : 2000CriLJ1408 to which one of us (Wadhwa, J.) was a party. That distinction is explicit and I respectfully agree with that distinction.

13. 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. 

16. 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. The period during which parole is availed of is not aimed to extend the outer limit of the maximum period of detention indicated in the order of detention. The period during which a detenu has been out of custody on temporary release on parole, unless otherwise prescribed by the order granting parole, or by rules or instructions, has to be included as a part of the total period of detention because of the very nature of parole. 

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. He is not a free person. 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 to any time, for breach of condition, to be returned to custody. 

 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.

IN THE SUPREME COURT OF INDIA

W.P. (Crl.) No. 248 of 1988 (with W.P. (Crl.) No. 831-1990 and SLP(Crl.) No. 1492 of 1988

Decided On: 16.02.2000

 Sunil Fulchand Shah  Vs. Union of India (UOI) and Ors.

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Whether Grandmother will be nearest relative for the purpose of grant of Parole to accused?

       

    The   question  that   falls   for consideration
before us is whether grandmother would also fall in
the category of nearest relative in view of the use of
the expression “such as” in Rule 19.   We find from
the decision of the Supreme Court in the case of
Royal Hatcheries Pvt. Ltd. and others vs. State of
A.P. and others (1994 Supp (1) SCC 429)  and the
decision of the learned Single Judge of this Court in
the   case   of  Bombay   Municipal   Corporation   and

another vs. Daily Taj Pvt. Ltd. (AIR 2001 Bombay
263), that the terminology “such as” is illustrative
in nature and not exhaustive. That being so, person
of the category or class described in the Rule would
also   be   covered   by   the   description       of   nearest
relative   mentioned     in   Rule   19   though   not
specifically mentioned therein. In the instant case,
the petitioner has claimed parole for the reason of
death   of   his   grandmother.   Applying   the   above
canon   of   interpretation,   grandmother   would   also
form the part and parcel of the said class of nearest
relative. Therefore, looking to the illustrative nature
of the   said  terminology,    we   hold    that   even
the   grandmother   would   be   included   in   the   said
expression. "
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 94  OF 2014
Dnyaneshwar s/o Tejrao Jadhav,

       VERSUS             
The State of Maharashtra,

    
                                             CORAM: S.S. SHINDE,
                                                        V.M. DESHPANDE,JJ.
                                           DATE : 23RD JANUARY,2014
Citation; 2015 ALLMR (CRI)4780

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