STATE OF GUJARAT v. JAYANTILAL MAGANLAL PATEL — 1995 DIGILAW 380 (GUJ)

B. N. KIRPAL, H. L. GOKHALE, J. ( 1 ) ). This is a Letter Patent Appeal against the judgment of the learned Single Judge who allowed the writ petition filed by the respondent and allowed the release of the respondent on parole for a period of 20 days. ( 2 ) ). Briefly stated the facts are that the respondent was convicted of an offence and sentenced under Section 302 IPC for life imprisonment. It is stated that an appeal against the conviction is still pending disposal in this Court. ( 3 ) ). During the pendency of this appeal an application was filed by the respondent herein before the Government for the grant of parole. This permission was granted initially on 12th July 1995 till 31st July 1995. According to the respondent on or about 25th July 1995 an application was made for extension of parole. When no decision was taken on this application the respondent on 1st August 1995 filed a petition under Article 226 of the Constitution wherein the prayer was that parole be further extended for a period of 20 days. It appears that on the very same day the respondent had surrendered and he also made an application for the extension of parole. The reason which was given for extension of parole was that his wife was under treatment for angina and high blood pressure and certificate of one Dr. K. T. Patel was produced. ( 4 ) ). At the time of hearing of the petition after notice had been issued by the learned Single Judge it was submitted by the appellant herein that as the respondent had already surrendered the prayer for extension of parole could not survive. The learned Single Judge entertained an oral prayer for amendment of the writ petition and did not grant time to the appellants to deal with the amended petition. In fact no amended petition was filed but after noting that the Counsel for the appellant herein did not want to take time to verify the contents of the medical certificates which had been produced the learned Single Judge came to the conclusion that having regard to the ailment which the respondents wife was suffering the authority was directed to release the respondent on parole for 20 days. ( 5 ) ). ( 5 ) ). On the appeal being filed a contention has been raised by the Counsel for the respondent that because the learned Single Judge has passed the order while exercising criminal jurisdiction the Letters Patent Appeal is not maintainable. We do not agree with this argument for the simple reason that the petition by the respondent was under Article 226 of the Constitution and the learned Single Judge in terms has observed in the impugned order that in proceedings under Article 226 of the Constitution he was doing substantial justice and the request of the respondents Counsel for permission to amend the writ petition was granted. It is no doubt true that the exercise of power related to a person who had been convicted of a crime but the criminal jurisdiction which is referred to in Clause 15 of the Letters Patent Clause would be with regard to the exercise of powers of Appeal or Revision by the High Court under the relevant provisions of the Code of Criminal Procedure and not in exercise of powers under Article 226 of the Constitution. Therefore the Letters Patent Appeal is maintainable. ( 6 ) ). Ms. Sharma relied upon the judgment of a Division Bench of this Court given in a Letter Patent Appeal decided on 30th April 1981 and arising out of Special Civil Application No. 244 of 1980. In that case the petitioner had sought a direction to the Police Officer in charge of a police station to arrest an alleged offender. On that petition being dismissed the petitioner therein had filed the Letters Patent Appeal. In that case the Appeal Court dismissed the Letters Patent Appeal holding that the Letters Patent Appeal was not maintainable it observed in clear terms as follows:. . . It is thus clear that though the petitioner sought to base his relief under Articles 14 and 16 of the Constitution in fact and substance there was invoking of criminal jurisdiction of this High Court and it was therefore in the fitness of things that after the petition was filed as a Special Civil Application it was converted into a Special Criminal Application. The Letters Patent Appeal is not maintainable since the order which was passed by the learned Single Judge was passed in the exercise of criminal jurisdiction though it was invoked under Article 226 of the Constitution. The Letters Patent Appeal is not maintainable since the order which was passed by the learned Single Judge was passed in the exercise of criminal jurisdiction though it was invoked under Article 226 of the Constitution. Under these circumstances the Letters Patent Appeal is not maintainable and it is dismissed since it is not maintainable. . . . In the aforesaid case the conversion of the Special Civil Application to Special Criminal Application possibly meant that the High Court exercised jurisdiction under Section 482 of the Code of Criminal Procedure and not under Article 226 Thus the facts in that matter and the present matter are quite different. In the present case it cannot in any way be said that the petitioner had invoked the criminal jurisdiction under the provisions of the Code of Criminal Procedure of the High Court when he had in fact filed the Special Civil Application under Article 226 of the Constitution before the Single Judge. Hence the present Letters Patent Appeal will have to be held as maintainable. ( 7 ) ). On the facts of this case it is difficult to agree with the conclusions arrived at by the learned Single Judge. Firstly the High Court does not sit in appeal over a decision which is taken on facts by the concerned authority. It is not in dispute that the Prisons (Bombay Furlough and Parole) Rules 1959 are applicable for the grant of furlough and parole. Under Rule 19 the competent authority may release a person on parole in cases of serious illness or death of any member of the prisoners family or of his nearest relatives or for any other sufficient cause. General guidelines have been issued by the Home Department where circumstances have been set out which are to be regarded as sufficient cause for the grant of parole. Admittedly serious illness of the prisoners wife is a circumstance which can be considered sufficient for the grant of parole. The authority in the instant case did take into consideration the medical certificate but came to the conclusion that this was not a sufficient cause for further extension of parole. Admittedly serious illness of the prisoners wife is a circumstance which can be considered sufficient for the grant of parole. The authority in the instant case did take into consideration the medical certificate but came to the conclusion that this was not a sufficient cause for further extension of parole. It is to be borne in mind that the respondent had already enjoyed a parole of 20 days and the High Court in exercise of its jurisdiction under Article 226 of the Constitution does not sit in appeal over a decision of the competent authority. Where however relevant facts are not taken into consideration or the decision of the competent authority can be said to be perverse or one which no reasonable person could have arrived then the High Court can certainly reverse the decision and order the grant of parole. In the present case however we find there was no justification for any further extension of time. What is sufficient cause will depend upon the facts of each case but a lifelong illness like angina and high blood pressure would by itself not be a sufficient cause for the grant of parole If the wife of the respondent had been hospitalised or there was danger to her life or surgery was to he performed then certainly parole should have been granted In the present case however the medical certificate which was produced showed that the respondents wife was an outdoor patient and even if she had angina and high blood pressure that by itself would not be a reason for the grant be parole ( 8 ) ). It is further to be seen that in the instantcase even the amended writ petition had not been filed and sufficient opportunity was not granted to the appellants herein to take instructions and file a reply But that apart on merits we do not think the learned Single Judge was right in reversing the decision of the authorities concerned. ( 9 ) ). Before we part with the matter there is one aspect of the power to grant parole to which we must advert. The present case is one where the jail authorities governmental authorities had initially granted parole to the convict and had later on declined to extend the same This is was in a case where the appeal of the convict (respondent herein) is pending in this Court. The present case is one where the jail authorities governmental authorities had initially granted parole to the convict and had later on declined to extend the same This is was in a case where the appeal of the convict (respondent herein) is pending in this Court. The parole is granted under Rule 19 of the Prisons (Bombay Furlough and Parole) Rules 1959 which rule reads as follows: 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 prisoners family or of his nearest relatives or any other sufficient cause as against that Section 389 (i) of the Code of Criminal Procedure 1973 governs the release of an appellant on bail The said Section 389 (i) reads as follows: 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. Therefore the question arises as to whether the administration car) exercise this power of granting parole in situations where there is a specific provision empowering the judiciary to deal with the same. In K M. Nanavati v. State of Bombay AIR 1961 SC 112 the general power to grant pardon etc. vested in the executive i. e. 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 Code of Criminal Procedure (present Section 389 of the 1973 Code) fell for consideration before the Supreme Court. The Supreme Court found that there was no conflict between the two and held that so long as the judiciary had the power to pass a particular order in a pending case. to that extent the power of the executive will have to be held limited in view of the words either of Section 401 (now Section 432 of the 1973 Code) and Section 426 (now Section 389 of the 1973 Code ). Then the Supreme Court observed: they can he harmonised without any difficulty. to that extent the power of the executive will have to be held limited in view of the words either of Section 401 (now Section 432 of the 1973 Code) and Section 426 (now Section 389 of the 1973 Code ). Then the Supreme Court observed: they can he 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 manner under Section 426. ( 10 ) ). The aforesaid judgment has been followed by the Bombay High Court in the case of Jayant Veerappa Shetty v. State of Maharashtra reported in 1985 Criminal Law Reports (Maharashtra) page 598 In the facts of that case the Court had to cancel the parole on the application of an aggrieved party due to the convict indulging into another crime when his appeal against conviction had been pending before the High Court. Following the judgment of the Supreme Court in K. M. Nanavatis case the Division Bench of the Bombay High Court in terms held in the above referred matter 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. We are in agreement with the aforesaid view. We therefore hold that the power of grant of parole cannot be exercised by the administration where the appeals of the convict concerned are pending and such persons can be released on bail only by the Appellate Court under Section 389 (1) of the Code of Criminal Procedure and not by the administration. We therefore hold that the power of grant of parole cannot be exercised by the administration where the appeals of the convict concerned are pending and such persons can be released on bail only by the Appellate Court under Section 389 (1) of the Code of Criminal Procedure and not by the administration. The power of the administration will be exercisable only during the remainder of the period after conviction as held by the Supreme Court in K. M. Nanavatis case (supra ). For the aforesaid reasons this appeal is allowed and the order of the learned Single Judge is set aside. .