IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.3185 OF 2018(GM-POLICE) BETWEEN:
SRI.SHIVAPRAKASH @ SHIVA S/O LATE ANNAPPA AGED ABOUT 52 YEARS R/AT BEVINAHALLI VILLAGE SOSALE HOBLI T.NARASIPURA TALUK MYSORE - 571 120.
KARNATAKA (By Mr.B.V.PINTO, ADV.) AND:
1. STATE OF KARNATAKA BY UNDER SECRETARY TO GOVT. HOME DEPARTMENT VIDHANA SOUDHA BANGALORE BY STATE PUBLIC PROSECUTOR HIGH COURT BANGALORE – 560 001.
2. ADDL. DIRECTOR GEN. OF POLICE & INSPECTOR GENERAL OF PRISONS SESHADRI ROAD BANGALORE – 560 009.
3. CHIEF SUPERINTENDENT CENTRAL PRISON MYSORE – 570 007.
… PETITIONER … RESPONDENTS (By Mr.VIJAY KUMAR A. PATIL AGA FOR R1 TO R3) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT RESPONDENTS TO RELEASE THE PETITIONER FORTHWITH AFTER HOLDING THAT THE PERIOD OF PAROLE AVAILED BY THE PETITIONER IS A PERIOD OF SENTENCE UNDERGONE BY THE PETITIONER.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.B.V.Pinto, learned counsel for the petitioner. Mr.Vijay Kumar A.Patil, learned Additional Government Advocate for respondent Nos.1 to 3.
Learned Additional Government Advocate has filed the objections. The same is taken on record.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner seeks quashment of Rule 650 of the Karnataka Prison Manual, 1978 as ultra vires and seeks a direction to the respondents to release the petitioner forthwith.
4. Facts giving rise to filing of the petition lie in a narrow compass. The petitioner was arrested on 15.09.1996 by Kuvempunagar Police Station, Mysuru in connection with the offences under Sections 364A, 302 and 201 of Indian Penal Code, 1860. The petitioner was remanded to the judicial custody on 23.09.1996 and was lodged in central jail at Mysuru. The petitioner was convicted by a judgment dated 20.04.2004 and was awarded the death sentence. The appeal preferred by the petitioner was also dismissed by this Court by judgment dated 26.04.2004 and the Supreme Court by an order passed in Criminal Appeal No.1055/2004 commuted the death sentence of the petitioner to life imprisonment for both the offences and directed that the sentence shall run concurrently. It is the case of the petitioner that petitioner has undergone sentence of imprisonment for a total period of 14 years and 197 days, if the parole of 1015 days granted to the petitioner on the ground of his ill health is included. It has been averred in the writ petition that convicts who have undergone 10 yeas of sentence has been released by the respondents on account of good behavior and taking into account the remission granted by the State Government from time to time. In the aforesaid factual background, petitioner has approached this Court seeking the relief as stated supra.
5. Learned counsel for the petitioner while inviting the attention of this Court to a Five Judge Bench decision of the Supreme Court in ‘SUNIL FULCHAND SHAH VS. UNION OF INDIA AND OTHERS’, 2000 CRI.L.J 1444 has submitted that parole does not interrupt the period of detention and the period needs to be counted towards total period of detention unless the terms of grant of parole rules or instruction prescribe otherwise. On the other hand, learned Additional Government Advocate has submitted that petitioner has no statutory right to seek his premature release. It is further submitted that Section 433A of Criminal Procedure Code, 1973 (herein after referred to as ‘the Code’ for short) does not confer any statutory right on the petitioner but creates an embargo on the power of the State Government. It is also submitted that in view of Section 56(2) of the Karnataka Prisoners Act, 1963 (herein after referred to as ‘the Act’ for short) the period of parole has to be excluded from the actual period of imprisonment undergone by a convict. It is also submitted that the petitioner has undergone actual sentence of 12 years 7 months and 16 days and in the absence of any challenge to Section 56(2) of the Act, no relief can be granted to the petitioner. Learned Additional Government Advocate has also invited attention of this Court to the decision of the Supreme Court in the case of ‘GOPAL VINAYAK GODSE vs. STATE OF MAHARASTRA’, AIR 61 SC 300 and paragraphs 67, 75, 83, 88, 90, 90 and 94 of the decision in the case of ‘SWAMY SHRADDANANDA (2) VS. STATE OF KARNATAKA’, (2008) 3 SCC 767.
6. I have considered the submissions made on both the sides and have perused the record. Learned counsel for the petitioner during the course of his submissions has not made any submission with regard to challenge to proviso to Rule 650 of the Karnataka Prison Manual 1978. Therefore, it is not necessary for this Court to deal with the prayer of the petitioner in this regard. Even otherwise, the Prison Manual is a hand book to the prison authorities to implement the provisions of the Karnataka Prisoners Act, 1963 and Karnataka Prisoners Rules, 1974 and in the absence of any challenge to the substantive provisions of law, challenge to the manual is not sustainable, as manual is only a guideline. At this stage, it is relevant to take note of Section 56 of the Act, which reads as under:
56. Release on parole.—(1) The State Government or any authority to which the State Government may delegate its power in this behalf, may, subject to such conditions as may be prescribed, release on parole for such period as it may deem necessary, any prisoner in case of any serious illness or death of any member of the prisoner’s family or of any of his nearest relatives or for any other sufficient cause. (2) The period of release of a prisoner under sub-section (1) shall not count towards the total period of his sentence.
7. Thus, from perusal of section 56 (2) of the Act, it is evident that period of prisoner under Sub Section (1) of Section 56 of the Act shall not count towards the total period of his sentence. Besides that, the State Government had issued an order dated 23.08.2016, which provides that every convicted prisoner whether male or female undergoing sentence of life imprisonment and covered by Section 433A of the Code shall be eligible to be considered for premature release from the prison immediately after serving the sentence of 14 years of actual imprisonment i.e., without remissions. The petitioner has admittedly not served the actual sentence of 14 years.
8. Besides that, the petitioner has no statutory right to seek premature release as the decision in this regard has to be taken in terms of the provisions of the Act and the orders passed by the State Government. So far as reliance placed by the petitioner on the decision rendered by the Supreme Court in the case of ‘SUNIL FULCHAND SHAH’, supra is concerned, the same is of no assistance to the petitioner in the fact situation of the case, as in the aforesaid decision, the Supreme Court has held that period of parole needs to be counted towards the total period of retention until the terms of the grant of parole, rules, or instructions, prescribe otherwise. In the instant case, the Government Order dated 23.08.2016, clearly provides that a convict shall not be eligible for premature release unless he serves 14 years of actual imprisonment. Admittedly, the petitioner has not completed 14 years of imprisonment. Therefore, the petitioner has even no right at this point of time to seek consideration of his case for premature release.
In the result, I do not find any merit in the writ petition, the same fails and is hereby dismissed.
Sd/- JUDGE SS