ROHAN DHUNGAT ETC. versus THE STATE OF GOA & ORS. ETC. on 5 January 2023

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Bombay at Goa in Criminal WritPetition Nos. 466 of 2021, 467 of 2021, 471 of 2021 and 472 of 2021dated 03.08.2022, by which, the High Court has dismissed the said writpetitions holding that the period of Parole is to be excluded from theHperiod of sentence while considering the 14 years to actual imprisonment for the purpose of premature release, the original writ petitioners havepreferred the present Special Leave Petitions.

2. That the original petitioners are all convicts undergoing lifeimprisonment. That all of them were released on parole under theprovisions of Goa Prisons Rules, 2006 (hereinafter referred to as the“Rules, 2006”). That all the original petitioners applied for prematurerelease under the Rules, 2006. The State Sentence Revenue Boardrecommended for premature release. The State Government soughtopinion of the convicting Court on the premature release of the petitioners.The convicting Court opined that the convicts shall not be releasedprematurely considering the gravity of offence. Therefore, the StateGovernment rejected the premature release of the petitioners. Theconvicts – original writ petitioners, therefore, preferred the respectivewrit petitions before the High Court of Bombay challenging the State’sdecision to not considering their case for premature release. Before theHigh Court, it was the case on behalf of the original writ petitioners thatthe convicts have completed 14 years in custody and therefore, as suchwere entitled for premature release. It was the case on behalf of theconvicts- original petitioners that the period of parole is not to be excludedfrom the period of sentence under the Rules, 2006 while considering 14years of actual imprisonment for the purpose of premature release. Takinginto consideration the Rule 335 of the Rules, 2006 which provides thatthe period of release on Furlough and Parole “shall be counted as remissionof sentence ….” the High Court by impugned judgment and order hasobserved and held that the period of parole is to be excluded from theperiod of sentence while considering 14 years of actual imprisonmentfor the purpose of premature release. As the respective convicts – originalwrit petitioners excluding period of parole did not complete 14 years ofactual imprisonment, the High Court by the impugned judgment and orderhas dismissed the respective writ petitions. Feeling aggrieved anddissatisfied with the impugned common judgment and order passed bythe High Court, the original writ petitioners have preferred the presentpetitions.

3. Shri Siddharth Dave, learned senior counsel appearing on behalfof the respective petitioners has vehemently submitted that in the factsand circumstances of the case the Hon’ble High Court has seriouslyerred in holding that the period of parole is to be excluded from theperiod of sentence under the Rules, 2006 while considering 14 years ofactual imprisonment for the purpose of premature release.

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3.1. It is vehemently submitted by Shri Dave learned SeniorCounsel for the respective petitioners that the Hon’ble High Court haserred in relying on the Rule 335 of the Rules, 2006 to hold that sinceperiod of release on parole is counted as remission, the same cannot becounted as part of sentence.

3.2. It is submitted that even while on parole the accused /convictscan be said to be in custody / judicial custody and therefore, period ofparole is to be included while considering 14 years of actual imprisonmentfor the purpose of premature release.

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3.3 It is vehemently submitted that as such the view taken by theCHigh Court is just contrary to the decision of this Court in the case ofSunil Fulchand Shah vs. Union of India reported in (2000) 3 SCC409 as well as in the case of Avtar Singh vs. State of Haryana reportedin (2002) 3 SCC 409 (para 11).

3.4. It is further submitted by Shri Dave learned senior counselDfor the original writ petitioners-convicts that even as per Section 55 ofthe Prisons Act, 1894, a prisoner when being taken to or from any prisonin which he may be lawfully confined, shall be deemed to be in prisonand therefore, deemed to be in custody and therefore, the period ofparole shall have to be included as in custody for the purpose of actualperiod of imprisonment while considering 14 years of actual imprisonment.E

Making above submissions, it is prayed to hold that the period ofparole is to be included while considering 14 years of actual imprisonmentfor the purpose of premature release.

4. The short question which is posed for the consideration of thisFCourt is whether the period of parole is to be excluded from the periodof sentence under the Rules, 2006 while considering 14 years of actualimprisonment for the purpose of premature release?

5. While considering the aforesaid question /issue, the object andpurpose of parole is required to be taken into consideration.

GParole is a conditional release. Parole can be granted in case ofshort-term imprisonment. Duration of parole extends to one month. Paroleis granted by the State Government. For parole, specific reason isrequired. Parole can be granted for number of times.

6. “Imprisonment” is defined under Rule 2(21) of the Rules, 2006.H“Imprisonment” means imprisonment of either description as defined in Section 53 of the Indian Penal Code, 1860 and the General ClausesAct,1897. The term of imprisonment is not included in the computationof term of parole.

7. Keeping in mind the above, the issue involved in the presentcase viz. whether the period of parole is to be excluded from the periodof sentence while considering 14 years of actual imprisonment for thepurpose of premature release is to be considered.

7.1 The High Court while passing the impugned judgment andorder and taking the view that the period of parole is to be excludedfrom the period of sentence while considering 14 years of actualimprisonment has heavily relied upon or considered Rule 335 of the Rules,2006 which provides that the period of release on Furlough and Parole“shall be counted as remission of sentence ….”. Once the period ofparole is to be counted as remission of sentence, as rightly observed andheld by the High Court, the period of parole is also required to be excludedfrom the period of sentence while considering 14 years of actualimprisonment.

8. Now, so far as the reliance placed upon the decision of thisCourt in the case of Sunil Fulchand Shah (supra) relied upon by learnedsenior counsel for the respective petitioners – convicts / prisoners isconcerned, the said decision shall not be applicable to the facts of thecase on hand. It was a case of detenue under the provisions of theCOFEPOSA Act. Even in the said decision, it is observed and held thatthe period of detention would not stand automatically extended by anyperiod of parole granted to the detenu unless the order of parole or rulesor instructions specifically indicates as a term and condition of parole, tothe contrary. In the present case the term ‘imprisonment’ is not includedin the computation of term of parole. Rule 335 specifically provides thatparole is to be counted as remission of sentence. Therefore, the saiddecision would not be applicable to the facts of the case on hand.

8.1 Similarly, the decision of this case in the case of Avtar Singh(supra) also shall not be applicable to the facts of the case on hand whileconsidering the issue viz. whether the period of parole is to be excludedfrom the period of sentence under the Rules, 2006 while considering 14years of actual imprisonment.

9. Now, so far as the submission on behalf of the petitioners relyingupon Section 55 of the Prisons Act, 1894 that even on parole the prisoners A

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Ashall be deemed to be in custody and therefore, the said period is to beincluded for the purpose of actual imprisonment is concerned, theaforesaid has no substance. Section 55 of the Prisons Act, 1894 shall notbe applicable with respect to release on parole. Section 55 of the PrisonsAct, 1894 shall be applicable in a case where a prisoner is taken outfrom any prison, he shall deem to have been in prison. However, theBsame shall not be applicable with respect to release on parole.

10. If the submission on behalf of the prisoners that the period ofparole is to be included while considering 14 years of actual imprisonmentis accepted, in that case, any prisoner who may be influential may getthe parole for number of times as there is no restrictions and it can beCgranted number of times and if the submission on behalf of the prisonersis accepted, it may defeat the very object and purpose of actualimprisonment. We are of the firm view that for the purpose of consideringactual imprisonment, the period of parole is to be excluded. We are incomplete agreement with the view taken by the High Court holding so.

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11. In view of the above and for the reasons stated above, allthese Special Leave Petitions deserve to be dismissed and are accordinglydismissed.

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Ankit Gyan

(Assisted by : Abhishek Pratap Singh and Aarsh Choudhary, LCRAs)

SLPs dismissed.

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