Per Vaze, J.:— Jayant Shetty and Sudhakar Shetty are carrying on the business of running restaurants at D'Mello Road, Wadi Bunder and Dr. Ambedkar Road, Byculla. According to the petitioners a number of notorious gangs operate in their locality which extort protection money from the shop-keepers and have unleashed a reign of terror in that area. Ramakant Naik, Arun Gawali and Babu Resham who are respondents to the present petition have master-minded the gangs and all three were convicted of murder of one Parasnath in Case No. 343 of 1980 by the Sessions Court, Bombay and sentenced to life imprisonment. The three accused along with others filed an appeal before the High Court in which they were granted bail in November 1982. While the accused persons were at large on bait it is alleged that they committed murder of one Sridhar nephew of Jayant Shetty the first petitioner on 4-3-83. With a view to perpetuating their vice like grip over the locality the accused continued to threaten the petitioners and the members of their family to such an extent that the petitioner had to file Writ Petition No. 225 of 1983 in this Court in which orders were passed for affording sufficient and adequate police protection to them and members of their family. With this turn of events, the State filed an Application No. 659 of 1983 in the High Court where the appeals were pending for cancellation of bail and the bail was cancelled on 20-10-1983. Inspite of cancellation of bail by the High Court, respondents Ramakant Naik and Babu Ramesh were released on parole by the respondent No. 2 the then Minister for Jails and it is this release on parole that is being challenged by the present petition.

2. The respondent-State of Maharashtra has supported the grant of parole under the Prisons (Bombay Furlough and Parole) Rules, 1959 under which the State Government claims legal competence to grant parole to a convicted prisoner on grounds such as the conduct in and outside the jail; the point of time of parole etc.

3. A perusal of the relevant file No. PAR-1684/18 (544) PRS-3 of the Home Department-which, it would be fair enough to say, was ungrudingly produced by the State-shows that Mrs. Ratnaprabha S. Naik filed an application before the Honourable Minister for Jails on 2-8-1984 requesting that her brother Ramakant S. Naik who was interned in Thane Central Jail may be released on parole so that he could attend to her in the K.E.M hospital where she was undergoing treatment. The Hon'ble Minister made an endorsement:

“Secretary (Jails)

Parole granted for one month.

Issue Orders.”

Sd/- xxx

4. The order was forthwith issued by the Assistant Secretary to the Government of Maharashtra directing the Superintendent. Thane Central Prition to release Ramakant S. Naik on parole for a period of 30 days. On 29-8-1984 the Commissioner of Police for Greater Bombay wrote to the Secretary to the Government of Maharashtra. Home Department that as per the orders of Government Ramakant S. Naik has been released on parole on furnishing the cash bond of Rs. 2000/- on 6-8-1984. On the same day i.e 6-8-1984 a letter was received by the Additional Commissioner of Police from the Home Department requiring the latter to inform him as to whether police department recommends the release of the prisoner on parole. The Commissioner complained that the prisoner had been released before any, report could be sent on these points. The Commissioner then referred to law and order situation in the city after the communal disturbance and the impending Ganpati and Bakri Idd festivals. He apprehended that presence of Ramakant Naik in the city would encourage communal trouble; that he is likely to form a new gang; that his sister's sickness is not of any serious nature requiring his attention and lastly that if Ramakant Naik is allowed to move freely, his presence will deter prosecution witnesses from deposing to the truth before the Court. The Commissioner concluded that in view of these circumstances Government should cancel the parole granted to prisoner No. 1680-Ramakant S. Naik.

5. The letter was processed in the Home department and recommendation was made that a fresh parole should not be given to Ramakant as the earlier period of 30 days was about to expire. The Deputy Secretary and the Home Secretary concurred in the proposal and the file was marked to the Minister (jails) who made the following minute:—

“It appears that during the period of one month, the prisoner Shri Ramakant Shankar Naik has not committed any offence. Further on perusal of the Security Bond it appears that no condition was incorporated directing him to report daily to the nearest police station. Shri Shetty who has recorded N.C against the prisoner is reported to be (sic) out of previous enemity. The police report, therefore, seems to be prejudicial. The parole already recommended by me should therefore be granted in favour of Mr. Naik. Incidentally, I understand that for want of the parole extension order the police has picked up the prisoner and sent him to the jail. In that case the parole up to the date of his arrest should be regularised and fresh parole of one month be granted. Please issue orders accordingly.”

Sd/- x x x

M (Jails)

6. Accordingly Ramakant was granted a fresh parole on 19-9-1984 for another 30 days though earlier Bhagirati had applied for release of her son on parole on almost similar grounds but her two earlier applications were rejected in view of adverse police reports.

7. Meanwhile on 4-9-1984 Bhagirati Resham applied to the Minister (Jails) for release of her son Babu Resham undergoing sentence in. Thane Central Jail on parole as she was to undergo an operation in Nair Hospital. Minister (Jails) noted on the application that with the consent of the Chief Minister he is granting 15 days' parole and order should be issued immediately. Accordingly Babu was released on parole by an order issued by the Home department of the State Government. Babu Resham got further parole of 15 days by orders of the Chief Minister as well as Minister (Jails) dated 16-9-1984. The grant of parole was challenged by the present writ petition filed on 26-9-1984. During the pendency of the present writ petition the Home department after narrating the apprehensions expressed by the Commissioner of Police recommended that the parole of Ramakant as well as Babu should be cancelled. Thereupon, Minister (jails) made nothings in Marathi of which a free translation would be as follows:—

“I am not agreeing with the departmental proposal of cancellation of parole. It has been my experience that ordinarily in 90% of the matters the police report is always against the convict and a strong reason is given that if the convict is released on parole, it is likely to result in breach of peace. It is within the powers of Government whether to accept the police report or not. Government in exercise of their powers have already granted parole and no breach of powers has taken place, (sic). If Government cancels parole it will give a handle to the media to comment that Government had to yield to the pressure built up by them by giving wide publicity to the events … … … XYZ all MLAs have recommended grant of parole and pointed out that at the time of the textile workers' strike these convicts were giving them support and standing behind them like a rock. By their presence and organisational ability, they (the convicts) have prevented many dacoities and assaults. They also helped the police and hence government should not yield to the complaints made by disgruntled elements.”

8. Minister (jails) marked the file to the Chief Minister who was not impressed and noted:—

“Parole is cancelled”.

Sd/- x x x

28-9-1984.

9. In pursuance of the orders of the Chief Minister the parole was cancelled and the prisoners were directed to surrender to the Jail Superintendent. Though attempts made by the police to arrest them, the prisoners were not traceable for a considerable time. Babu Resham ultimately surrendered on 8-10-1984 while Ramakant Naik who could not be traced inspite of repeated attempts by the police, also surrendered a month thereafter i.e on 8-11-1984.

10. It is the legality of the orders granting parole that forms the subject matter of this petition. Prisoners Act 1894, does not, in terms, contain specific provisions regarding paroles. But in its application to the State of Maharashtra the rule making section 59 has been amended by Bombay Act 25 of 1959. Clause 5 of section 59 now reads:

“(5) for the award of marks, the suspension or remission and consequent shortening of sentences, and the grant of release on parole or furlough and determining the conditions on which and the authority by which the sentences may be suspended or remitted and the prisoners may be released on parole for furlough.”

11. In exercise of this rule making power the State Government made the Prisons (Bombay Furlough and Parole) Rules, 1959. Rule 18 of the rules declares State Government as the authority competent to sanction release of convicted prisoner on parole. Rule 19 reads:—

“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 any other sufficient cause.”

12. It would be useful at this stage to read kindred provisions of section 389(1) of Code of Criminal Procedure in juxtaposition:

“Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond.”

13. In 1(K.M Nanavati v. State Of Bombay ), A.I.R 1961 S.C 112, the general power to grant pardon etc. vested in the Governor under Article 161 of the Constitution and the powers conferred on the judiciary to pass a particular order in a pending case as envisaged by the old section 426 of the Criminal Procedure Code (present section 389 of the 1973 Code) fell for consideration. The Supreme Court found that there is no conflict between the prerogative power of the sovereign state to grant pardon and the power of the Courts to deal with a pending case judicially if the provision of section 401 and 426 of the Code of Criminal Procedure and Articles 142 and 161 of the Constitution are interpreted harmoniously. The Court observed:—

“Section 426, therefore, deals specifically with a situation in which an appeal is pending and the Appellate Court has seisin of the case and is thus entitled to pass such orders as it thinks fit and proper to suspend a sentence, it will thus be seen that whereas Chap. XXIX, in which section 401 occurs, deals with a situation in which pendency of an appeal is not envisaged, section 426 deals with a situation in which pendency of an appeal is postulated. In other words Chap. XXIX deals with persons sentenced to punishment for an offence simpliciter in general terms whereas section 426 deals with a special case and, therefore, must be out of the operation of section 401. But it has been vehemently argued by the learned Advocate-General that the words ‘at any time’ indicate that the power conferred by section 401 may be exercised without any limitation of time. In the context of section 401 ‘any time’ can only mean after conviction; because there cannot be any sentence before conviction. The question then is: “Does it cover the entire period after the order of conviction and sentence even when an appeal is pending in the Appellate Court and section 426 can be availed of by the appellant?”

“It will be seen that section 426 is as unfettered by other provisions of the Code as section 401 with this difference that powers under section 426 can only be exercised by an Appellate Court pending an appeal. When both the provisions are thus unfettered, they have to be harmonised so that there may be no conflict between them. They can be harmonised without any difficulty, if section 426 is held to deal with a special case restricted to the period while the appeal is pending before an Appellate Court while section 401 deals with the remainder of the period after conviction. We see no difficulty in adopting this interpretation nor is there any diminution of powers conferred on the executive by section 401 by this interpretation. The words ‘at any time’ emphasise that the power under section 401 can be exercised without limit of time, but they do not necessarily lead to the inference that this power can also be exercised while the Court is seized of the same matter under section 426.”

14. The above passage from Nanavati's case offers a complete answer to Mr. Paranjpe's argument that the entire body of parole rules should be struck down being inconsistent with the provisions of section 389 of the Code of Criminal Procedure. In our view both can co-exist, so however that the power assumed unto itself by State Government under the Parole rules cannot be exercised so long as an appeal by a convicted person is pending and the Appellate Court is in seisin of the case. The Parole rules cannot stultify or thwart the judicial process and even in the most emergent circumstances the Courts will be open to grant relief in deserving cases to a convict.

15. Mr. Paranjpe places reliance on 2(Veeramchaneni Raghavendra Rao v. Government of A.P), 1985 Cri. L.J 1009 where the last Clause of Rule 974(2) of A.P Prisons Rules of 1979 which reads: “there shall be no bar for grant of parole-Emergency leave to the prisoners during the pendeecy of the appeal” was struck down as being ultra vires the statutory powers of the State Government. No such phraseology appears in the Maharashtra Parole Rules and hence the question of striking down the Maharashtra rule which is not analogous to the A.P Prison Rules, does not arise.

16. In the variegated web of administrative law, one has to recognise the reality that the administrative decisions have to be sub-summed by a process of expression of opinion by nothings on the file made by a hierarchy of officers with the Minister at its apex. The domineering role played by the permanent Secretaries to the Government in the decision making process has come up for criticism on a number of occasions. The permanent Secretaries (and by that expression we mean and include the various levels of Under, Deputy, Joint, Additional and Special Secretaries) have acquired the sobriquet of being “lions under the throne” and have been parodied in a popular BBC Serial “Yes Minister”. The officers have been shown to be paranoid about secrecy and sticklers of forms who ultimately bail a Minister out of a tight squeeze into which he has landed himself. However the notings of the officers on the files of the present case project a picture to the contrary; the lions under the throne have been roaring “No minister” right from the beginning, and have given cogent and convincing reasons as to why the two prisoners should not be granted parole. The Commissioner of Police even brought to surface in a polite way that Government is making a mockery of the procedure of asking the police to comment on the parole applications by making sure that the letter asking for comments reaches the police after the prisoners are already released on parole. In fact on an earlier occasion; acting on the adverse report of the police and their apprehensions about breach of peace in case the prisoners continued to be on bail, the State Government had successfully approached the High Court for cancellation of the bail granted to Ramakant and Babu.

17. The power vested in a functionary by the Prisons (Bombay Furlough and Parole) Rules, 1959 has to be exercised in accordance with law and his decision will have to be set aside if it appears that the decision was an improper exercise of the powers conferred by the rules. Improper exercise of the power will include taking irrelevant consideration into account or exercising the power for a purpose other than the purpose for which the power is conferred or an exercise of the power at the discretion or behest of another person. Granting parole to a prisoner whose bail was cancelled by the Appellate Court on the application of the State itself, is to say the least suspect. But a reading of the notings on the file (extracted above) has confirmed some of our worst fears relating to the motive behind the release on parole. It would hardly be an indicia of good faith to say that the reports of the police should not be believed as they are against the convict or that the exposure by the media should just be ignored only to demonstrate to the news men the strength of the Government. We would not wish to be thought that we regard the media hype as gospel truth or that the views expressed therein should necessarily, mould governmental policies. The subsequent noting made by the Minister (jails) during the pendency of the present petition holds a mirror to his mind and it will be reasonable to presume that the earlier orders of, grant of parole-though not speaking ones-were motivated by similar considerations. That the prisoners have allegedly committed murder while on bail is totally absent from Minister's noting as also the fact that it was at the instance of the State Government that the bail was cancelled by the Appellate Court. The nothings demonstrate so clearly-if demonstration were necessary-that the Minister took into consideration totally irrelevant fact that three MLAs had recommended grant of parole to the prisoners as an expression of gratitude for the services rendered by them in the past, to wit, by standing behind the MLAS “as a rock” during the textile workers' strike.

18. It is heartenting to read from the affidavit filed by Government of India that a jail reform committee has been appointed by that Government and the question of grant of parole to a convicted person is one of the subjects under consideration. The jail reforms committee would no doubt benefit from the experience gained in the United Kindom in the administration of Criminal Justice Act, 1967 which under part 111 under the headings “treament of offenders” has introduced a new and dramatic concept in the penal system. The British Government had drawn upon, the experience of the continental penological reforms based on sociological, moral and practical grounds which made early release of a convict a justifiable expedient. It may be added without cynical inflexion that prisons have become overcrowded with resultant deterioration in conditions and standards. If the British and continental experience is replicable in our soil, it may be considered whether the duties of grant of parole may be entrusted to a parole board instead of a single functionary. Schedule 2 to the (U.K) Criminal Justice Act, 1967 provides that:

……………….………

“……… ……… ……… among its members (of whom there must be not less than five) there shall be included;

(a) a person who holds or has held judicial office;

(b) a registered medical practitioner who is a psychiatrist;

(c) a person appearing to the Secretary of State to have knowledge and experience of the supervision or after-care of discharged prisoners; and

(d) a person appearing to the Secretary of State to have made a study of the causes of delinquency or the treatment of Offenders.”

19. The breadth of disciplines from which members of the parole board are drawn is more likely to inspire confidence in the minds of the prisoners as well as their relatives and their decisions would carry conviction and become less vulnerable. Our last observation about less vulnerability is based on the rejection by the Court of Appeal of a plea of a prisoner that a decision of the parole board which refused to release him on parole should be set aside on the ground that no reasons were given by the board for its decision. 3(See Payne v. Lord Harris of Greenwich), 1981 (1) W.L.R 754.

20. In the result the petition succeeds and it is declared that the Prisons (Bombay Furlough and Parole) Rules, 1959 would not apply to the grant of parole to a convicted person whose appeal is pending before the Appellate Court and when the Appellate Court is in seisin of the matter and is empowered under section 389 of the Code of Criminal Procedure, 1973 to pass appropriate orders. Rule is made partly absolute.