1. Whether provisions contained in the Rajasthan Prisoners Release on Parole Rules, 1958 (for short 'Parole Rules') can be invoked during the pendency of criminal appeal?' is the short question that arises for consideration in the instant matters.

2. The petitioners during the pendency of criminal appeals sought release on first parole under Rule 9 of the Parole Rules. When they were not so released, these writ petitions have been preferred.

3. Before adverting to rival submissions it will be appropriate to scan the scheme of Parole Rules. The State of Rajasthan in exercise of the powers conferred by Sub-section (6) of Section 401 of the Code of Criminal Procedure 1898 (Section 432 of the Code of Criminal Procedure 1973) made Parole Rules. As per Rule 3 of Parole Rules a prisoner sentenced to imprisonment for not less than one year may, subject to exceptionally good behaviour, be allowed by the Superintendent Jail, to submit an application for parole. The said application has to be forwarded to the District Magistrate (Rule 4), who may either reject the application, or forward the same to the appropriate Committee (Rule 5), If the appropriate Committee accepts the recommendation of the District Magistrate, the prisoner shall be released on parole on such conditions and for such period as has been directed. Rule 9 provides that a prisoner who has completed with remission if any, one fourth of his sentence, subject to good conduct in the jail, may be released on 1st parole for 20 days including days of journey to home and back, and for 30 days on 2nd parole, provided his behaviour has been good during the 1st parole and for 40 days on 3rd parole, provided his behaviour has been good during the 2nd parole. If during the 3rd parole the prisoner has behaved well and his character has been exceedingly well and if the prisoner's conduct has been such that he is not likely to relapse into crime, his case may be recommended to the Government through the State Committee for permanent release on parole on such conditions as deemed fit by the Superintendent Jail and the District Magistrate concerned; the chief condition among them being that if the prisoner while on parole commits any offence or abets, directly or indirectly, commission of any offence, he has to undergo the unexpired portion of the sentence in addition to any sentence imposed upon him by reason of such an offence. In case the permanent release on parole is rejected, the prisoner will be eligible for release on parole for 40 days every year subject to the same condition for the remaining period of his sentence. Rule 9A provides that in emergent cases the Superintendent of Jail shall grant parole upto a period of 7 days only subject to confirmation by the Inspector General of Prisons, and for a period of not more than 15 days by the Inspector General of Prisons. As per Rule 10 no second and subsequent release on parole shall be made unless 11 months have elapsed from the date of the expiry of the period of release on parole immediately preceding. Rule 11 provides that in course of release on parole except the permanent release, the prisoner shall remain under supervision of a guardian approved by the State Committee or District Committee who shall report any breach of conditions of parole to the District Magistrate concerned. In case of permanent release on parole the prisoner should be under the supervision of probation officer. As per Rule 12 the period for which a prisoner stays on parole under rule 9 without violating the conditions laid down for the purpose, shall be treated as imprisonment served by him. All other kinds of parole shall be treated as sentence suspended. Rule 13 provides that the grant of parole should be regarded as occasion to encourage good conduct and it shall not be claimed by prisoners as a matter of right.

4. This takes us to Section 389 of the Code of Criminal Procedure 1973 (New Code) which provides for the suspension of execution of sentences or of orders pending appeal and for release of the appellant on bail. Section 389 corresponds to Section 426 of the repealed code. Present Sub-section (1), (2) and (4) correspond to old Sub-sections (1), (2) and (3) respectively with minor charges. Old Sub-section (2B) is omitted in the present section. In the place of old Sub-section (2A), the present Sub-section (3) is substituted giving effect to the opinion of the Joint Committee. Section 432 Cr.P.C. (New Code) which corresponds to section 401 of the repealed code, gives power to the appropriate Government to suspend or remit sentences.

5. Question for consideration before the Constitution Bench of Hon'ble Supreme Court in K.M Nanavati v. State Of Bombay ., AIR 1961 SC 112, was as to whether for the period when the Supreme Court was in seizin of the case, the Governor could suspend the sentence during that period under Article 161 of the Constitution? Their Lordships of the Supreme Court answered the question by making following observations:

Para 21) "in the present case, the question is limited to the exercise by the Governor of his powers under Article 161 of the Constitution suspending the sentence during the pendency of the special leave petition and the appeal to this Court; and the controversy has narrowed down to whether for the period when this Court is in seizin of the case the Governor could pass the impugned order, having the effect of suspending the sentence during that period. There can be no doubt that it is open to the Governor to grant a full pardon at any time even during the pendency of the case in this Court in exercise of what is ordinarily called 'mercy jurisdiction". Such a pardon after the accused person has been convicted by the Court has the effect of completely absolving him from all punishment or disqualification attaching to a conviction for a criminal offence. That power is essentially vested in the head of the Executive, because the judiciary has no such 'mercy jurisdiction'. But the suspension of the sentence for the period when this Court is in seizin of the case could have been granted by this Court itself. If in respect of the same period the Governor also has power to suspend the sentence, it would mean that both the judiciary and the executive would be functioning in the same field at the same time leading to the possibility of conflict of jurisdiction. Such a conflict was not and could not have been intended by the makers of the Constitution. But it was contended by Mr. Seervai that the words of the Constitution, namely, Article 161 do not warrant the conclusion that the power was in any way limited or fettered. In our opinion there is fallacy in the argument in so far as it postulates what has to be established, namely, that the Governor's power was absolute and not fettered in any way. So long as the judiciary has the power to pass a particular order in a pending case to that extent the power of the Executive is limited in view of the words either of Sections 401 and 426 of the Code of Criminal Procedure and Articles 142 and 161, of the Constitution. If that is the correct interpretation to be put on these provisions in order to harmonise them it would follow that what is covered in Article 142 is not covered by Article 161 and similarly what is covered by Section 426 is not covered by Section 401. On that interpretation Mr. Seervai would be right in his contention 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."

6. In yet another case of Sarat Chandra Rabha v. Khagendra Nath, AIR 1961 SC 334, the Constitution Bench indicated thus:- (Para 4)

"An order of remission does not in any way interfere with the order of the court, it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence passed by the court still stands as it was. The power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the Trial Court and substituting in its place the reduced sentence adjudged by the appellate or revisional court."

7. In Dadu @ Tulsidas v. State of Maharashtra, (2000) 8 SCC 437, their Lordships of the Supreme Court indicated that Parole is not a suspension of the sentence. The convict continues to be serving despite granting of parole under the statute, rules, jail manual or the Government Orders. "Parole" means the release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from jail, prison or other internment after actually being in jail serving part of sentence. Grant of parole is essentially an executive function to be exercised within the limits prescribed in that behalf. It would not be open to the court to reduce the period of detention by admitting a detenue or convict on parole. The court cannot substitute the period of detention either by abridging or enlarging it.

8. In Poonam Lata v. M.L. Wadhawa and Ors., (1987) 3 SCC 347, it was observed that parole is the release of a very long term prisoner from a penal or correctional institution after he has served a part of his sentence under the continuous custody of the State and under conditions that permit his incarceration in the event of misbehaviour. Historically 'parole' is a concept known to military law and denotes release of a prisoner of war on promise to return. Parole has become an integral part of the English, and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. As a consequence of the introduction of parole into the penal system, all fixed-term sentences of imprisonment of above 18 months are subject to release on licence, that is, parole after a third of the period of, sentence has been served. In those countries, parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional release from confinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are framed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody.

9. In Maru Ram and Ors. v. Union of India and Ors., (1981) I SCC 107, the Constitution Bench of Hon'ble Supreme Court indicated that executive power must not be exercised arbitrarily or mala fide and must obey the guide-lines made in conformity with constitutional mandates and manifest purpose of the power.

10. It may thus be inferred that when a prisoner is released temporarily before the expiry of a sentence on the promise of return to jail, he is released on parole. To release a prisoner on parole is an executive function to be exercised within the limits.

Release on parole does not change the status of prisoner. It is a provisional release from confinement but is deemed to be a part of the imprisonment. In Rajasthan a prisoner sentenced to imprisonment for not less than one year may, subject to exceptionally good behaviour, be allowed by the Superintendent Jail, to submit an application for parole, which has to be forwarded to the District Magistrate who may further forward it to the appropriate committee. If a prisoner who has completed with remission, one fourth of his sentence, subject to good conduct in Jail, may be released on first parole for 20 days. In emergent cases the Superintendent of Jail has right to grant parole upto a period of seven days.

11. So far as suspension of the sentence for the period when the appellate court is in seizin of the appeal is concerned it can be granted by the appellate Court itself under Section 389 Cr.P.C. When the application of a prisoner seeking suspension of sentence is rejected and criminal appeal is pending, in that eventuality the prisoner, in our opinion still has a right to move an application for parole if he has completed with remission, one fourth of his sentence subject to his good conduct in jail. In emergent cases however application may be disposed of by the Superintendent of Jail as per parole rules.

12. Since orders granting parole are to be passed during the pendency of criminal appeals preferred by the prisoners, we issue following directions:-

i) It shall be the duty of Superintendent Jail to make an endorsement about the details of pendency of the criminal appeal, before forwarding the application to the District Magistrate.

ii) If the District Magistrate takes decision to further forward the application to the Parole Committee, the information shall necessarily be sent forthwith to the Deputy Registrar (Judicial) of the High Court for enclosing the same with the pending appeal of the prisoner.

iii) The decision taken by the Parole Committee shall also be forwarded to the High Court without any delay.

iv) In the event of granting emergent parole it shall be the duty of superintendent Jail to immediately transmit copy of the order to the Deputy Registrar (Judicial) of the High Court for appending the same in pending appeal.

13. In view of the discussions made herein above we, instead of passing any order on the instant petitions, remit the same in original to the Parole Committee concerned to decide the same afresh strictly in accordance with the Parole Rules forthwith by complying the directions incorporated in this order. The petitions stand disposed of as indicated above.

14. Let copies of this order be forwarded to all the District Magistrates of the State of Rajasthan for making compliance of the directions and issuing necessary instructions to the Jail Superintendents.