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2002 DIGILAW 198 (AP)

State Of A. P. v. Gandham Jaya

2002-02-11

L.NARASIMHA REDDY, S.R.NAYAK

body2002
S. R. NAYAK, J. ( 1 ) THIS writ appeal filed by the State and state authorities is directed against the order of the learned single Judge dated 4. 4. 2000 made in W. P. No. 4524 of 2000. ( 2 ) THE respondent herein, viz. , Gandham Jaya, filed the writ petition praying for a mandamus directing the appellant-authorities to take into account the parole period in counting the total period of sentence of two years imposed on his wife Smt. G. Manga in Crl. A. No. 580 of 1997 by order dated 15. 4. 1998. The learned single Judge, by the order under appeal, allowed the writ petition and directed-"taking into consideration the facts and circumstances of the above case, I direct the respondents to release the wife of the petitioner i. e. , Smt. Gandham Manga, who is the appellant No. 1 in Crl. A. No. 580 of 1997 on the file of this Court, forthwith from imprisonment and her bail bonds shall be cancelled setting her free. The writ petition is allowed. No order as to costs. " ( 3 ) WE have heard the learned Additional Advocate General, appearing for the appellant-State authorities and Mr. Ch. Dhananjaya, learned counsel for the respondent. We find an error apparent on the face of the order under appeal. There is no controversy that if the authorities were to exclude the period of parole from the total period of sentence, by the time the writ petition was instituted in this Court, the writ petitioner s wife was not entitled to be released because as on that day she admittedly did not serve two years of sentence. Although the order under appeal does not refer to the Judgment of the Supreme Court in Sunil Fulchand Shah etc. , v. Union of India and Ors. , as could be seen from the affidavit averments, the above relief was sought by the petitioner placing reliance on the above said Judgment of the Supreme Court. The Supreme Court in the above decision held- "that parole does not interrupt the period of detention and, thus that period needs to be counted towards the total period of detention unless the terms for grant of parole, rules or instructions, prescribe otherwise. The Supreme Court in the above decision held- "that parole does not interrupt the period of detention and, thus that period needs to be counted towards the total period of detention unless the terms for grant of parole, rules or instructions, prescribe otherwise. ( 4 ) THUS, from the above statement of law of the Supreme Court, the parole period has to be included in the period of detention or sentence, as the case may be, unless the terms for grant of parole or the rules or instructions prescribe otherwise. Rule 18 of the Suspension of Sentence on parole Rules, 1981, framed by the Governor under sub-section (5) of section 432 of the Code of Criminal Procedure, directs that the period spent on parole shall not be counted as part of sentence. In other words, the statutory rule directs that the period spent on parole shall not be counted as part of the period of sentence. If this is the rule position, in the light of the judgment of the Supreme Court in Sunil Fulchand Shah (supra 1) the period spent by the writ petitioner s wife on parole cannot be treated as part of the period of sentence and therefore, directing the appellant-authorities to release the respondent s wife, would not arise. It is because, as pointed out supra, as on the date of institution of the writ petition, if the period of parole were to be excluded by the authorities from the period of sentence, the writ petitioner s wife did not complete two years of sentence. In that view of the matter, the institution of the writ petition itself was premature and liable to be dismissed inlimine. ( 5 ) IN the result and for the foregoing reasons, we allow the writ appeal and set aside the order of the learned single Judge dated 4. 4. 2000 made in W. P. No. 4524 of 2000 and dismiss the writ petition with no order as to costs. The appellant-State authorities are now at liberty to give effect to this Judgment. However, this order shall not come in the way of the writ petitioner or his wife seeking remission of the sentence, if she is otherwise entitled to seek under any other rule or administrative instructions.