Deciding Authority: The Supreme Court of India
Name of the Judges: G.B. Pattanaik, S.N. Phukan & S.N. Variava
Date of Judgement: 19/02/2002
Facts: The appellant Avtar Singh, a convict, is undergoing the sentence of imprisonment. He filed an application before the Punjab & Haryana High Court seeking for a direction to the State Government to include the period of parole availed by him in the total period of imprisonment undergone by him. The application was dismissed by the impugned judgment holding that the period of parole cannot be counted towards the actual sentence undergone by him. Being aggrieved, present appeal by special leave has been filed. Avtar Singh has also filed the writ petition challenging the vires of sub-section (3) of Section 3 of the Haryana Good Conduct Prisoners(Temporary Release) Act, 1988 (for short ’the Act’) on the ground that the sub-section is arbitrary, illegal, ultra vires and unconstitutional.
Judgement: Two points have been urged by the learned counsel for the appellant. Firstly, it is submitted that since the Constitution Bench of this Court in Sunil Fulchand Shah versus Union of India and Ors. [2000 (3) SCC 409] has held that the period of parole can also be counted as a period of sentence of the imprisonment, sub-section (3) of Section 3 of the Act is unconstitutional and violative of Article 21 of the Constitution. Secondly, it has been contended that sub- section (3) of Section 3 of the Act is discriminatory inasmuch as a prisoner released temporarily under Section 3 shall not be entitled to count such period of release towards the total period of sentence, whereas temporary release of a prisoner under Section 4 such temporary period of release on furlough would be counted towards the total period of sentence.
This Court in State of Haryana and Others versus Mohinder Singh and Others [2000 (3) SCC 394] held that ’furlough’ and ’parole’ are two distinct terms now being used in the Jail Manuals or laws relating to temporary release of prisoners. In Sunil Batra versus Delhi Administration and Others etc. the Constitution Bench has given recognition of creation of a separate class of prisoners undergoing death sentence. Section 3 has been enacted to meet the urgent pressing personal problem of a prisoner. Under this section any prisoner irrespective of his period of sentence or detention can be released on parole to meet such problem, whereas the condition for releasing a prisoner on furlough under Section 4 is rigorous and such release on furlough cannot be claimed by certain classes of prisoners as mentioned in the section. On close look at both the sections it would appear that these sections operate on different fields. Section 3 has been enacted to meet certain situation of the prisoner but Section 4 has been enacted as a reformative measures as a prisoner has to show good conduct while in incarceration. In this Court’s considered opinion this classification is based on rational criteria and cannot be said to be discriminatory in nature. This Court, therefore, finds no force in the first contention of the learned counsel for the appellant.
The second contention of the learned counsel for the appellant has also to be rejected in view of the decision of this Court in Sunil Fulchand Shah (supra). The Constitution Bench has clearly held that though ordinarily the period of temporary release of a prisoner on parole needs to be counted towards the total period of detention but this condition can be curtailed by legislative act, rules, instructions or terms of grant of parole.
Decision:
The appeal and the writ petition are dismissed.
Sudipta Bhowmick, 4th Year, KIIT School of Law.
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