Until a legislation is made or appropriate rules are framed by the State government regulating the grant of parole (temporary release), there should be no release of any prisoner on parole at all, the Madras High Court has held.
“In the event, any statute is made or the government frames appropriate rules regulating parole, the said Act or rules may provide for the manner in which the period of parole may be treated either as part of the sentence period or not,” a Full Bench, comprising Justices K.N. Basha, T. Sudanthiram and S. Nagamuthu, said in its judgment.
The question before the Full Bench was “whether the period spent on parole by a convict shall be counted as sentence period or not?”
The Bench ruled that since there was no statute or administrative rule or regulation to grant temporary release on parole, such release granted hitherto should be treated only as suspension of sentence. It should not be counted towards the sentence period.
Yesu alias Velaiyan, a life convict lodged in the Central Prison, Palayamkottai, spent around 480 days on parole. But the authorities did not count the period as period of sentence spent by him. He moved the Madurai Bench for a direction to consider the parole period as part of the period of sentence. A single Judge by an order on October 7, 2009, allowed the plea. Challenging this, the State filed an appeal.
There was also a writ petition before the Madurai Bench seeking to quash an order of the Home Secretary of May 2009 and a consequent direction to the authorities to include the period of parole availed of by Chelladurai in his total period of imprisonment undergone and release him.
When the appeal came up before a Division Bench, the Additional Public Prosecutor referred to a judgment wherein it was held that the parole period should not be counted as sentence period. In a separate case, another Division Bench had held that parole period should be counted as sentence period. However, later, the same Bench reviewed its order and held that the parole period should not be counted as sentence period.
The detenu's counsel cited Supreme Court judgments in his favour. The Division Bench, which was considering the appeal, said the issue needed to be placed before a larger Bench.
The Full Bench said the government had framed the Tamil Nadu Suspension of Sentence Rules. Outside its scope, the government could not grant any suspension of sentence. The Tamil Nadu Prison Rules did not regulate temporary release of prisoner on parole. It dealt only with suspension of sentence. No rules had been framed by government by way of administrative instructions under Art.162 of the Constitution regarding grant of parole. Thus, neither the government nor any other authority had power to grant parole for want of rules or a statute.
