Rohan Dhungat vs The State Of Goa

IN THE SUPREME COURT OF INDIA EXTRA-ORDINARY APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL) NOS. 12574-12577 OF 2022 (@ DIARY NO. 29535 OF 2022)

Rohan Dhungat Etc. ...Petitioner(s)

Versus

The State of Goa & Ors Etc. …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court of Bombay at

Goa in Criminal Writ Petition Nos. 466 of 2021, 467 of 2021,

471 of 2021 and 472 of 2021 dated 03.08.2022, by which,

the High Court has dismissed the said writ petitions holding

that the period of Parole is to be excluded from the period of

sentence while considering the 14 years to actual

imprisonment for the purpose of premature release, the Signature Not Verified Digitally signed by Neetu Sachdeva original writ petitioners have preferred the present Special Date: 2023.01.05 16:39:18 IST Reason:

Leave Petitions.

Page 1 of 10

2. That the original petitioners are all convicts undergoing life

imprisonment. That all of them were released on parole

under the provisions of Goa Prisons Rules, 2006

(hereinafter referred to as the “Rules, 2006”). That all the

original petitioners applied for premature release under the

Rules, 2006. The State Sentence Revenue Board

recommended for premature release. The State Government

sought opinion of the convicting Court on the premature

release of the petitioners. The convicting Court opined that

the convicts shall not be released prematurely considering

the gravity of offence. Therefore, the State Government

rejected the premature release of the petitioners. The

convicts – original writ petitioners, therefore, preferred the

respective writ petitions before the High Court of Bombay

challenging the State’s decision to not considering their case

for premature release. Before the High Court, it was the case

on behalf of the original writ petitioners that the convicts

have completed 14 years in custody and therefore, as such

were entitled for premature release. It was the case on

behalf of the convicts- original petitioners that the period of

parole is not to be excluded from the period of sentence

under the Rules, 2006 while considering 14 years of actual

Page 2 of 10 imprisonment for the purpose of premature release. Taking

into consideration the Rule 335 of the Rules, 2006 which

provides that the period of release on Furlough and Parole

“shall be counted as remission of sentence ….” the High

Court by impugned judgment and order has observed and

held that the period of parole is to be excluded from the

period of sentence while considering 14 years of actual

imprisonment for the purpose of premature release. As the

respective convicts – original writ petitioners excluding

period of parole did not complete 14 years of actual

imprisonment, the High Court by the impugned judgment and

Hon’ble Mr. Justice M.R. Shah has pronounced the reportable judgment of the Bench comprising His Lordship and Hon’ble Mrs. Justice B.V. Nagarathna.

The appeal is dismissed in terms of the signed reportable judgment.

Pending applications, if any, stand disposed of.

(NEETU SACHDEVA) (NISHA TRIPATHI) ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR

(signed reportable judgment is placed on the file) order has

dismissed the respective writ petitions. Feeling aggrieved

and dissatisfied with the impugned common judgment and

order passed by the High Court, the original writ petitioners

have preferred the present petitions.

Page 3 of 10

3. Shri Siddharth Dave, learned senior counsel appearing on

behalf of the respective petitioners has vehemently

submitted that in the facts and circumstances of the case

the Hon’ble High Court has seriously erred in holding that

the period of parole is to be excluded from the period of

sentence under the Rules, 2006 while considering 14 years

of actual imprisonment for the purpose of premature release.

3.1. It is vehemently submitted by Shri Dave learned Senior

Counsel for the respective petitioners that the Hon’ble High

Court has erred in relying on the Rule 335 of the Rules,

2006 to hold that since period of release on parole is

counted as remission, the same cannot be counted as part

of sentence.

3.2. It is submitted that even while on parole the accused

/convicts can be said to be in custody / judicial custody and

therefore, period of parole is to be included while considering

14 years of actual imprisonment for the purpose of

premature release.

3.3. It is vehemently submitted that as such the view taken by the

High Court is just contrary to the decision of this Court in the

Page 4 of 10 case of Sunil Fulchand Shah vs. Union of India reported

in (2000) 3 SCC 409 as well as in the case of Avtar Singh

vs. State of Haryana reported in (2002) 3 SCC 409 (para

11).

3.4. It is further submitted by Shri Dave learned senior counsel

for the original writ petitioners-convicts that even as per

Section 55 of the Prisons Act, 1894, a prisoner when being

taken to or from any prison in which he may be lawfully

confined, shall be deemed to be in prison and therefore,

deemed to be in custody and therefore, the period of parole

shall have to be included as in custody for the purpose of

actual period of imprisonment while considering 14 years of

actual imprisonment.

Making above submissions, it is prayed to hold that the

period of parole is to be included while considering 14 years

of actual imprisonment for the purpose of premature release.

4. The short question which is posed for the consideration of

this Court is whether the period of parole is to be excluded

from the period of sentence under the Rules, 2006 while

considering 14 years of actual imprisonment for the purpose

Page 5 of 10 of premature release?

5. While considering the aforesaid question /issue, the object

and purpose of parole is required to be taken into

consideration.

Parole is a conditional release. Parole can be granted

in case of short-term imprisonment. Duration of

parole extends to one month. Parole is granted by the State

Government. For parole, specific reason is required. Parole

can be granted for number of times.

6. “Imprisonment” is defined under Rule 2(21) of the Rules,

2006. “Imprisonment” means imprisonment of either

description as defined in Section 53 of the Indian Penal

Code, 1860 and the General Clauses Act,1897. The term of

imprisonment is not included in the computation of term of

parole.

7. Keeping in mind the above, the issue involved in the present

case viz. whether the period of parole is to be excluded

from the period of sentence while considering 14 years

of actual imprisonment for the purpose of premature release

is to be considered.

Page 6 of 10 7.1. The High Court while passing the impugned judgment and

order and taking the view that the period of parole is to be

excluded from the period of sentence while considering 14

years of actual imprisonment 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 of

parole is to be counted as remission of sentence, as rightly

observed and held by the High Court, the period of parole is

also required to be excluded from the period of sentence

while considering 14 years of actual imprisonment.

8. Now, so far as the reliance placed upon the decision of this

Court in the case of Sunil Fulchand Shah (supra) relied

upon by learned senior counsel for the respective petitioners

– convicts / prisoners is concerned, the said decision shall

not be applicable to the facts of the case on hand. It was a

case of detenue under the provisions of the COFEPOSA Act.

Even in the said decision, it is observed and held that the

period of detention would not stand automatically extended

by any period of parole granted to the detenu unless the

order of parole or rules or instructions specifically indicates

Page 7 of 10 as a term and condition of parole, to the contrary. In the

present case the term ‘imprisonment’ is not included in the

computation of term of parole. Rule 335 specifically provides

that parole is to be counted as remission of sentence.

Therefore, the said decision 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 while considering the issue viz. whether the

period of parole is to be excluded from the period of

sentence under the Rules, 2006 while considering 14 years

of actual imprisonment.

9. Now, so far as the submission on behalf of the petitioners

relying upon Section 55 of the Prisons Act, 1894 that even

on parole the prisoners shall be deemed to be in custody

and therefore, the said period is to be included for the

purpose of actual imprisonment is concerned, the aforesaid

has no substance. Section 55 of the Prisons Act, 1894 shall

not be applicable with respect to release on parole. Section

55 of the Prisons Act, 1894 shall be applicable in a case

where a prisoner is taken out from any prison, he shall deem

Page 8 of 10 to have been in prison. However, the same shall not be

applicable with respect to release on parole.

10. If the submission on behalf of the prisoners that the period of

parole is to be included while considering 14 years of actual

imprisonment is accepted, in that case, any prisoner who

may be influential may get the parole for number of times as

there is no restrictions and it can be granted number of times

and if the submission on behalf of the prisoners is accepted,

it may defeat the very object and purpose of actual

imprisonment. We are of the firm view that for the purpose of

considering actual imprisonment, the period of parole is to be

excluded. We are in complete agreement with the view taken

by the High Court holding so.

11. In view of the above and for the reasons stated above, all

these Special Leave Petitions deserve to be dismissed and

are accordingly dismissed.

………………………………….J. [M.R. SHAH]

………………………………….J. [C.T. RAVIKUMAR]

NEW DELHI;

Page 9 of 10 JANUARY 05, 2023

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