The Parole system in India : A case law analysis

( A project report )

Submitted on : 25/10/2018

Project submitted to:

Mr. Manoj Kumar

(Faculty: Criminology and Penology II)

Project submitted by

Shivanshu Bais
Semester IX, Roll no. 152

HIDAYATULLAH NATIONAL LAW UNIVERSITY RAIPUR, C.G.

The parole system in India : A case law analysisPage 1

 ACKNOWLEDGEMENT

I am highly elated to carry out my research on the topic, ‘The parole system in India : A case law
analysis. I would like to give my deepest regard to my course teacher “Mr. Manoj Kumar”, who
held me with her immense advice, direction and valuable assistance, which enabled me to march
ahead with this topic. I would like to thank my friends, who gave me their precious time for
guidance and helped me a lot in completing my project by giving their helpful suggestion and
assistance. I would like to thank my seniors for their valuable support. I would also like to thank
the library staff and computer lab staff of my university for their valuable support and kind
cooperation

Shivanshu Bais

Semester IX

The parole system in India : A case law analysisPage 2

 CONTENT

1. Abstract ……………………………………………………………………………04

2. Introduction…………………………………………………..……………………04

3. Objectives ………………………………………………………………………….05

4. Research methodology ……………………………………………………………..05

5. Parole system………………………………………………………………………06

6. Objectives of parole………………………………………………………………06-07

7. Parole in India, Selection and Supervision of Offenders Paroled In India………07-08

8. Parole regulations…………………………………………………………………09

9. Provisions of the prisons act 1894……………………………………………………...10-11

10. Judicial position…………………………………………………………………12-16

11. Case law analysis on the parole system…………………………………………17-21

12. Conclusion…………………………………………………………………………22

13. Bibliography ………………………………………………………………………..23

The parole system in India : A case law analysisPage 3

 ABSTRACT:

Parole is reforming process for prisoners to help them to come into the mainstream of life. It is
an instrument for social rehabilitation of the prisoner. The present project reviews the concept of
parole and Indian parole system. Judicial stand on parole and various court decisions. It also
discusses Steps to prevent misuse of parole and balancing social security and human rights
through parole is elaborated.

INTRODUCTION

Parole is a major correctional process in jail reforms. It is a part of consideration granted to the
prisoners to help them to come back into the mainstream of life. It is a tool for social
rehabilitation of the prisoner. In recent times, the concept of parole been utilized by the highly
influential class to escape the prison sentence. Thus, we have so many examples who are
enjoying free life, even after committing inhuman offences and conviction. There are lakhs of
other prisoners, uninfluential, and do not have means to utilize the process, or refused the benefit
on simple grounds. The present article is to review the concept of parole, its objectives,
procedures in the legal system and critical issues in parole.

In India, the grant of Parole is largely governed by the rules made under the Prison Act, 1894 and
Prisoner Act, 1900. Each of the States has its own parole rules, which may have minor variations
with each other. There are two types of parole- custody and regular. The Custody Parole is
granted in emergency circumstances like death in the family, serious illness or marriage in the
family while Regular Parole is allowed for a maximum period of one month, except in special
circumstances, to convicts who have served at least one year in prison. The released prisoner
remains under the supervision of the paroling authority. Parole may be revoked for violation of
parole regulations. There are certain categories of convicts who are not eligible for being
released on parole like prisoners involved in offences against the State, or threats to national
security, non-citizens of India, people convicted of murder and rape of children or multiple
murders etc. Parole is essentially an executive function and instances of release of detenues
on parole were literally unknown until this Court and some of the High Courts in India in recent
years made orders of release on parole on humanitarian considerations.

The parole system in India : A case law analysisPage 4

 OBJECTIVES

1. To have a detailed study of the Indian Parole system.

2. To analyze the role of administration when it comes to offenders.

3. To discuss the various legal provisions related to the parole in india.

RESEARCH METHODOLOGY

The method of research adopted for the project is the analytical and descriptive method.

The texts that were used for the project include articles, research papers and news given in
various websites as well as online journals.

The parole system in India : A case law analysisPage 5

 PAROLE SYSTEM

Parole is the conditional release of an offender who has already served a portion of his sentence
in a correctional institution. While on parole, the released prisoner remains in the custody and
under the supervision of the paroling authority. The period of parole may be as long as the time
the prisoner would otherwise have served in the institution or it may be terminated earlier. At
any point during this period, parole may be revoked for a violation of parole regulations and the
violator must return to the institution to serve the remainder of his sentence in confinement.

Walter Croflon advocated reform of the individual as a purpose of imprisonment and moreover
urged that "Tickets of leave" be given to those who showed a change in attitude. Thus, what is
now called parole was from its start to the concepts of offender reformation and indeterminacy in
sentencing. Parole ideally includes treatment in the form of supervision, guidance and assistance.

It has been rightly held that all released prisoners can benefit from the guidance of parole
officers, but the benefit that society itself would derive if all prisoners were kept under close
surveillance during the period of adjustment immediately following incarceration, is also
considerable. A prisoner who has spent a decade inside has lost touch with the everyday world of
transport, shopping and renting, but has gained a set of different everyday living skills relevant to
prison life that needs to be unlearned. Parole gives a chance of reformation to the prisoner. It can
have a positive impact towards changing the prisoner’s attitude to what they have done and make
them come to accept that their behavior was wrong.

OBJECTIVES OF PAROLE

Parole had its root in the Positivist School.

The word ‘Parole’ comes from the French word “je donne ma parole” meaning ‘I give my word’,
while the dictionary definition is ‘word of honour. The term ‘parole’ was first coined in a
correctional context in 1847 by Samvel G. Howe, a Boston penal reformer. The Classical School
of thought opined that people are free to choose their own conduct. While committing any crime,
an offender always calculates his gain, his pleasure, at the cost of other’s pain.

The parole system in India : A case law analysisPage 6

So he must be punished. But the Positivist school argued that it is the circumstance which forces
anybody to commit crime. So he must be rehabilitated. From there the thought of parole arose. It
provides a second chance to the prisoner to rehabilitate himself. The offender might have
committed an offence, but it is not desirable that he always be labeled and must not be given any
chance to rehabilitate himself. Its objectives are twofold: the rehabilitation of the offender and
the protection of society. It is a means of helping the inmate to become a law-abiding citizen,
while at the same time ensuring that he does not misbehave or return to crime. The paroling
function may be important as a "safety valve" to help control the levels of prison populations in
relation to capacities and thus to avert the dangers and costs of over-crowding. Parole is a
correctional method to bring about the reformation in the characteristics of such persons. If the
delinquent proves, he can mend his ways and shall refrain from such criminal activities which
are detrimental to community and if he shows an overall improvement in his character and
conduct, the purpose of this correctional method is fulfilled.

Parole in India, Selection and Supervision of Offenders Paroled In India

The grant of Parole is largely governed by the rules made under the Prison Act, 1894 and
Prisoner Act, 1900. Each of the States has its own parole rules, which have minor variations with
each other . There are two types of parole- custody and regular. The custody parole is granted in
emergency circumstances like death in the family, serious illness or marriage in the family
Regular Parole is allowed for a maximum period of one month, except in special circumstances,
to convicts who have served at least one year in prison. It is granted on certain grounds such as:
Serious Illness of a family member Accident or Death of a family member Marriage of a member
of the family Delivery of Child by wife of the convict Maintain family or social ties Serious
damage to life or property of the family of convict by natural calamities Pursue filing of a
Special Leave Petition. Certain categories of convicts are of convicts are not eligible for being
released on parole like prisoners involved in offences against the State, or threats to national
security, non-citizens of India etc. People convicted of murder and rape of children or multiple
murders etc. are also exempted except at the discretion of the granting authority. Selection for
parole is based on two separate considerations.

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First one, more or less arbitrary because it is usually fixed by statute. The second entirely
discretionary involving a decision and a calculated risk by the parole board. The First
consideration is the offender's parole eligibility, the second his suitability for parole. To these
considerations which are explicit, there may be added others which are no less decisive because
they are less tangible. Parole cannot be granted to every type of offender. The purpose of parole
is to bring about a change in the behavior of the person sentenced and also at extraordinary
circumstances such as serious illness or death of near relatives, death of the kith and kin and so
forth. The offender paroled has to be kept under close surveillance by the police so that he does
not relapse into the commission of crime. Even though the paroled offender is not in physical
confinement, for all practical purposes he is a person sentenced and every of his movement of
him has to be closely monitored so that his associations and his activities which perpetrate crime
can be mitigated.

PAROLE REGULATIONS

1) The paroled person should hold the permit always and should produce on being tendered by
any police officer or magistrate or any other competent authority.

2) He shall not associate with notorious bad characters, ruffians and anti-social elements.

3) He shall not indulge in coercing any of the witnesses or complainant to adduce evidence in his
favor.

4) He shall report any charge in the address or his movement and leaving the locality or
jurisdiction which is specifically prescribed in his behalf.

5) He shall also obey all laws and public ordinances.

6) He shall not indulge in alcoholism, intoxicating beverages and narcotics.

It is important to note that the grant of parole is not a matter of right, but a concession granted to
the prisoner. The grant is regulated by rules laid down in each State and is a part of executive
discretion. Such discretion should not be exercised arbitrarily or capriciously. This call for a
significant role to be played by state and jail authorities in this regard. They should understand

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the offender’s social history. The grounds on which parole to be granted have to be properly
examined. The grant of parole should be based on considerations such as: Nature of Offence and
circumstances related thereto; Time spent in prison; Conduct of the convict; Previous
antecedents, if any; Possibility of engaging in illegal activities, committing crimes, during the
period; Possibility of seeking vengeance, causing harassment, in specific categories of crimes. It
should be ensured that the convict should not be deprived of his rights as a human being. The
liberties and freedoms remain curtailed during the term of sentence. But that should not take
away the fundamental humane considerations of life. All are equal in the eyes of law, none is
rich or poor, educated or uneducated. Thus different treatment within the prison is uncalled for. It
is high time that the administrative and jail authorities act in a reasonable, unbiased and
responsible manner.

PROVISIONS OF THE PRISONS ACT 1894

The Prisons Act of 1894 being Act No. 9 of 1894 has defined the furlough system and
the parole system under Sections 5(A) and 5(B) of the Prisons Act, 1894 which reads as follows :

Section 5(A) ‘Furlough system‘ means the system of releasing prisoners in jail on furlough in

accordance with the rules for the time being in force.
Section 5(B) ‘Parole system‘ means the system of releasing prisoners in Jail on parole, by
suspension of their sentences in accordance with the rules for the time being in force.
Section 6. Pursuant to the powers conferred by Clauses 5 and 28 of Section 59 of the Prisons
Act, 1894 (9 of 1894) in its application to the State.
The parole and furlough rules are part of the penal and prison system with a view to humanise
the prison system. Those rules enable the prisoner to obtain his release and to return to the
outside world for a short prescribed period. The objects of such a release of prisoner can be read
from para 101 of the report submitted by the All India Jail Manual Committee as also the objects
mentioned in Model Prison Manual.

The parole system in India : A case law analysisPage 9

These objects are :
Parole is essentially an executive function and instances of release of detenues on parole were
literally unknown until this Court and some of the High Courts in India in recent years made
orders of release on parole on humanitarian considerations. Historically ‘parole‘ is a concept
known to military law and denotes release of a prisoner of war on promise to return. Parole has
become an integral part of the English and American systems of criminal justice intertwined with
the evolution of changing attitudes of the society towards crime and criminals. As a consequence
of the introduction of parole into the penal system, all fixed term sentences of imprisonment of
above 18 months are subject to release on licence, that is, parole after a third of the period of
sentence has been served. In those countries, parole is taken as an act of grace and not as a matter
of right and the convict prisoner may be released on condition that he abides by the promise. It is
a provisional release from confinement but is deemed to be a part of the imprisonment. Release
onparole is a wing of the reformative process and is expected to provide opportunity status of the
prisoner. Rules are framed providing supervision by parole authorities of the convicts released
on parole and in case of failure to perform the promise, the convict released on parole is directed
to surrender to custody.

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 JUDICIAL POSITION ON PAROLE

In the view of Indian judicial system, parole is claimed to be a success in rehabilitation and
checking crime attitude. Parole has been defined by Hon. Court as “a conditional release of a
prisoner, generally under supervision of a parole officer, who has served part of the term for
which he was sentenced to prison”. Parole relates to executive action taken after the door has
been closed on a convict. [Mohinder Sing vs state of Haryana, 2000 ] During parole period there
is no suspension of sentence but the sentence is actually continuing to run during that period
also.”

Sunil fulchandshah vs Union of india ,2001 1 Hon. court remarked that “It is not out of place to
mention that if the State takes up a flexible attitude it may be possible to permit long spells of
parole, under controlled conditions, so that fear that the full freedom if bailed out, might be
abused may be eliminated by this experimental measure, punctuated by reversion to prison.
Unremitting insulation in the harsh and hardened company of prisoners leads to many
unmentionable vices that humanizing interludes of parole are part of the compassionate
constitutionalism of our system”

Babu Singh and Ors. v State of U.P 2 The Court opined that persons kept incarcerated and
embittered without trial should be given some chance to reform themselves by reasonable
recourse to the parole powe, calculated risks, by release for short periods may, perhaps, be a
social gain, the beneficent jurisdiction being wisely exercised.

Babulal Das v The State of West Bengal 3 and In Inder Singh v The State of Delhi
Administration the Court has emphasized on the need for liberal use of parole even in the case of
heinous crimes.

CRITICAL ISSUES :

1
AIR 1989, SCR (2) 867
2
AIR 1965 SCR (2) 771
3
AIR 1975 SCR (3) 193

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Two significant issues arise in case of Parole in contemporary India- one, the refusal of grant of
parole on insufficient grounds and second, the misuse of parole. Misuse of Parole: concept of
parole has been emphasized by the Judiciary and penologists to reduce the problems of prison
life, whether parole really serves a purpose or provides a way to escape becomes a significant
question. Misuse is clearly evident in the following cases.

In Bibi Mohanty4 case. The convict, the son of a DGP, Orissa, was sentenced for rape of a
German national. He was sentenced to seven years rigorous imprisonment along with fine. He
was granted fifteen days parole to visit his ailing mother.. He escaped and his father pleaded
ignorance about his whereabouts. A significant period of seven years elapsed, The police caught
him him from Kerala The convict changed his identity. His father refused to accept that the
person arrested was his son. A court has recently ordered the DNA test to establish his identity.
Parole also provides a dangerous opportunity to a criminal to engage in criminal activities while
on parole. As in Saibanna v State of Karnataka case and in the case of Krishan v State of
Haryana.

REFUSAL OF PAROLE

Release on parole is a wing of the reformative process and is expected to provide opportunity to
the prisoner to transform himself into a useful citizen. Parole is a grant of partial liberty of
lessening of restrictions to a convict prisoner. . The Code of Criminal Procedure does not contain
any provision for grant of parole. By administrative instructions, rules have been framed in
various States, regulating the grant of parole. Parole Rules or administrative instructions, framed
by the Government are purely administrative in character and for securing release on parole, a
convict has, to approach the Government concerned or the jail authorities. In most cases, the
executive acts in a mere mechanical manner, without application of mind and appreciation of
facts. They reject parole on grounds like breach of peace or the possibility of the prisoner
committing a crime during the parole period.

The criteria for probable refusal of parole, laid down by Delhi High Court are as follows:

4
AIR 2009 ker36

The parole system in India : A case law analysisPage 12

 i) A reasonable apprehension, based upon material available with the Government that
the petitioner, if released on bail may not return back to Jail to undergo the remaining
portion of the sentence awarded to him;
ii) ii) A serious apprehension of breach of law and order or commission of another
offence by the petitioner if he comes out on parole;
iii) iii) Past conduct of the petitioner such as jumping the bail or parole granted earlier to
him;
iv) iv) A reasonable possibility of the petitioner trying to intimidate or harm those who
have deposed against him or their relatives. The Court emphasized that it is neither
possible nor desirable to exhaustively lay down all such grounds as would justify
denial of parole in a particular case. Each case has to be examined by the Government
dispassionately and with an open mind.

CASE LAW ANALYSIS ON PAROLE

The courts in India have generally favoured the view that the prisoners who have been
incarcerated or kept in prison without trial for a long time, should be released on parole to
maintain unity of family. It may be useful to refer to some of the decisions to support this
contention.

The need to paroling out long-term prisoners periodically for reasonable spells, subject to
sufficient safeguards ensuring their proper behaviour outside and prompt return inside, was
highlighted by the Supreme Court in Hiralal Mallick v. State of Bihar5.

In this case the appellant was found guilty of the offence under Section 326 (causing grievous
hurt) of the Indian Penal Code and sentenced to eight years’ imprisonment. He was only 12 years
of age at the time of commission of the offence. The High Court reduced the sentence to four
years keeping in view the tender age of the accused. The Supreme Court directed release of the
appellant on parole for reasonable spells so that his family ties are not snapped for long being
insulated from the world and he does not become beastial and dehumanised.

5
1977 AIR 2236, 1978 SCR (1) 301

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The Apex Court, however, noted that granting of parole for reasonable spells is subject to
6
sufficient safeguards ensuring prisoner’s proper behaviour outside the prison and prompt return
inside on completion of parole term.

In Gurdeep Bagga v. Delhi Administration 7, a petition by life convict for parole on the plea of
illness of mother was rejected by the High Court on the ground that the petitioner was earlier
continuously on parole for more than two years and he had two elder sisters to look after the
ailing mother. The Supreme Court, however, took a lenient view and recommended annual leave
for life convict to maintain unity of family.

The Supreme Court, in Dharamvir v. State of Uttar Pradesh, was once again called upon to
consider the desirability of release of long-term prisoners on parole at regular intervals so that
they are not totally cut-off from the society. In the instant case, the appellant was found guilty of
murder and convicted for imprisonment for life.

There being no scope for reduction of period of sentence, the Apex Court found parole desirable
in such cases. It therefore, issued directions to the State Government and the jail authorities that
such prisoners be allowed to go on parole for two weeks once in a year throughout the period of
imprisonment, provided they behaved well while on parole.

The Apex Court, in Suresh Chandra v. State of Gujarat, pointed out the importance of the
penological innovation in the shape of parole to check recidivism. It recommended liberal use of
parole as a viable alternative for reducing overcrowding in prisons.

In Krishanlal v. State of Delhi8, the Supreme Court refused to accept economic necessity as a
relevant factor for reducing the period of imprisonment for the offence of forgery. The Court,
however, agreed that the accused could be released on parole for reasonable spells in such cases.

In Samir Chatterjee v. State of West Bengal, the Supreme Court set aside the order of the
Calcutta High Court releasing on parole a person detained under Section 3 (1) of MISA and
disfavoured the observation that long term preventive detention can be self-defeating and
criminally counter-productive.

6
AIR 1953 ALL 37
7
32 (1987) DLT 52 A
8
AIR 1978 LJ 248

The parole system in India : A case law analysisPage 14

In Smt. Poonam Lata v. Wadhawan and others9, where a person detained under COFEPOSA
Act of 1974 was released under an order of the Supreme Court on parole, it was held that the
period of parole has to be excluded in reckoning the period of detention. In the instant case, the
detenu was engaged in receiving smuggled goods from across the Indo-Nepal border and was
making payments in foreign currency and remitting the sale proceeds of such smuggled goods
out of country in shape of U.S. dollars with the help of others.

The counsel for the detenu Shri Jethmalani had contended that preventive detention was not a
sentence by way of punishment and therefore, the concept of serving out the sentence which
pertains to punitive jurisprudence, cannot be imported within the realm of preventive detention.

This decision (i.e., Smt. Poonam Lata’s case) has, however, been overruled by the Supreme
Court by its judgment in Sunil Fulchand Shah v. Union of India & other which decided that
parole may be granted by way of temporary release as contemplated by Section 12(1) or 12(1A)
of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974
(COFEPOSA) where detenu has approached the Government for securing release on parole.

The grant of parole to such detenus under COFEPOSA Act is an administrative decision to be
taken by the Government or its functionaries and the courts cannot, generally speaking, exercise
the power to grant temporary parole because of the bar of judicial intervention under Section
12(6) of the COFEPOSA.

This bar, however, does not affect the jurisdiction of High Court under Article 226 or of
Supreme Court under Arts. 32, 136, 142 of the Constitution of India. The Supreme Court further
ruled in this case that the period of detention under Section 10 of COFEPOSA has to be
computed from the date of actual detention and not from the date of order of detention.

This in other words, means that an order made under Section 12 of the temporary release of a
detenu on parole does not bring the detention to an end for any period and does not interrupt the
period of detention. It only changes the mode of detention by restraining the movement of the
detenu in accordance with the conditions prescribed in the order of parole. In short, the period of
parole has to be counted towards total period of detention unless rules prescribe otherwise.

9
AIR 1987 SCR (2) 1123

The parole system in India : A case law analysisPage 15

In Veerumchanni Raghvendra Rao v. State of Andhra Pradesh10, the Supreme Court ruled that
release on parole and suspension of sentence during pendency of appeal in Supreme Court is
liable to be struck down being ultra vires the statutory powers of State Government.

The Andhra Pradesh Parole Rules, 1981 (Rule 23), and Andhra Pradesh Prison Rules, 1979
[Rule 974 (2)] were struck down in this case being inconsistent with Section 432(5) read with
Section 389 of the Code of Criminal Procedure, 1973.

In its landmark decision in Kesar Singh Guleria v. State of Himachal Pradesh, the Supreme
Court observed that for exercising the power, function and duty to temporarily release the
prisoners on parole, the paramount consideration which the releasing authority shall bear in mind
is that the right to be released is not defeated merely because the prisoner on account of his
impecunious condition is unable to offer a security bond or surety bond.

The discretion to waive the requirement of furnishing bond should be exercised in cases of poor
prisoners bearing in mind other relevant considerations of family-ties, roots in community and
social conditions etc.

In the case of State of Haryana v. Hasmat11, the accused (respondent) along with some others
was found guilty of offences punishable under sections 302, 307, 148 read with section 149 IPC
and was sentenced to undergo imprisonment for life. During the pendency of his appeal he was
in jail and was allowed the benefit of release on parole three times and had not misused liberties
during parole period. On this ground he contended that he should be given the benefit of
suspension of sentence during pendency of his appeal and be released on bail. Rejecting the plea
of the respondent (accused), the Supreme Court observed:—

“Section 389 of Cr. P.C. deals with suspension of execution of sentence (in this case life
imprisonment) pending the appeal and release of the appellant on bail. There is a distinction
between bail and suspension of sentence. One of the essential ingredients of section 389 Cr. P.C.
is the requirement for the Court to record reasons in writing for ordering suspension of the
sentence or order appealed. If he is in confinement, the said Court can direct that he be released
on bail or on his own bond. This clearly indicates that an order directing suspension of sentence
during appeal and grant of bail should not be passed as a matter of routine.”

10
AIR 1996 SCC (3) 132
11
AIR 1985 HAR 254

The parole system in India : A case law analysisPage 16

In this case, the High Court had granted bail primarily on the ground that after conviction, the
respondent (accused) had been granted parole on three occasions and there was no allegation of
any misuse of liberty during the period of parole. But the Supreme Court set aside the order of
the High Court on the ground that in case of offence like murder, the Court should consider the
relevant factors like the manner in which the offence was committed and its gravity etc. and then
consider whether after being convicted for the offence will it be desirable to order his release on
bail.

The High Court had not considered this aspect at all. The Court further referred to its earlier
rulings in Vijay Kumar v. Narendra & others, and Ramji Prasad v. Rattan Kumar Jaiswal and
another, wherein it was held that in cases involving conviction under section 302, IPC
suspension of sentence and bail should be granted only in very exceptional cases.

The question for decision before the Supreme Court in the case of State of Madhya Pradesh v.
Kusum, related to entertaining applications of prisoners whose appeals for bail etc. were pending
or those whose bail applications had been rejected and they had moved the High Court in appeal
against such rejection.

In the instant case, the respondent, a woman accused was convicted for an offence of murder
punishable under Section 302, IPC and was sentenced to rigorous imprisonment for life. She had
filed an application for release under the Madhya Pradesh Prisoners’ Release on Probation Act,
1954 and the rules framed there under in 1964 (Rule 2 in this case). The circular dated 3-8-2005
issued by Inspector General of Prisons stated that prisoners whose appeals are pending before the
Appellate Court are not entitled to be considered for the purpose of release on probation. The
respondent’s prayer was therefore, rejected by the Probation Board on 8-8-2005 with the
approval of the State Government. In appeal, the High Court of Madhya Pradesh upheld the
decision of the State Government and maintained the legality of the circular issued by the
Inspector General Prisons.

In appeal against the judgment of the High Court, the Supreme Court referred to its earlier ruling
in the case of Arvind Yadav v. Ramesh12 Kumar and others, and held that, “the convicts have no
indefeasible right to be released. The Probation Board and the State Government are required to
take into consideration the relevant factors before deciding or declining the release and the facts
of individual case are to be taken into consideration for deciding the issue of release.”

12
AIR 1978 SCC 243

The parole system in India : A case law analysisPage 17

In Arvind Yadav’s case the accused Ramesh Kumar was accused in 14 cases filed under various
sections of IPC and the manner of committing murder was gruesome and brutal and therefore, he
was rightly denied release on probation. The rules provide for a detailed procedure for
consideration of application for release of prisoners on probation.

Once rejected, an application for release can be filed again after two years. The Board consists of
Home Secretary of the State, I.G. Prisons or Deputy I.G. and another member. Therefore, there
was no infirmity in the rejection of respondent’s application for release in the instant case and
appeal was dismissed.

MISUSE OF PAROLE

Misuse is clearly evident in the case of Sidharth Vashisht @ Manu Sharma vs. The State of
N.C.T. of Delhi13 case, where the convict Manu Sharma asked for parole on three grounds: to
attend religious rites for his late grandmother, to tend to his ageing mother and, to take care of
the family’s business interest. He misused parole and returned to Jail only after he was traced to
a Delhi pub enjoying his night life with friends, drinks and dance.

The Bibi Mohanty case, in which the convict, son of a DGP, Orissa, was sentenced for rape of a
German national. He was sentenced to seven years rigorous imprisonment along with fine. He
was granted fifteen days parole to visit his ailing mother. He escaped and his father pleaded
ignorance about his whereabouts. A significant period of seven years elapsed, and the police
caught him from Kerala. The convict had changed his identity. His father refused to accept that
the person arrested was his son. Court ordered the DNA test to establish his identity.

Another case is that of Sanjay Dutt who was convicted and imprisoned for a period of five
years. He was granted Parole time and again in the name of health issues, his wife’s surgery, and
daughter’s surgery. In another case Vikas Yadav, a politician convicted for murder of Nitish
Katara  has come out on parole more than 80 times, taking it to 5 times a month.

13
MANU/SC/0044/2005

The parole system in India : A case law analysisPage 18

These cases depict a lot about the functioning of our administration. It shows the partiality and
discrimination allowed and followed in the jail by the administration which most of the times
goes unchecked and rectified.

The Code of Criminal Procedure does not contain any provision for grant of parole. By
administrative instructions, rules have been framed in various States, regulating the grant of
parole. Parole Rules or administrative instructions, framed by the Government are purely
administrative in character and for securing release on parole, a convict has, to approach the
Government concerned or the jail authorities. Thus in most cases, the executive acts in a mere
mechanical manner, without application of mind and appreciation of facts. This raises an
important question- Should the Executive have the power of decision making on parole or is the
judiciary a more competent authority to decide on matters of freedom of the prisoner? Is it not
important that a uniform rules and regulations be framed across the country for grounds of
release on Parole? It is said that good behaviour is one of the important grounds for release on
Parole. Who decides ‘good behaviour’? What qualities ought to be present in order to fulfil the
standards and criteria of good behaviour? It has been found that some of the Applications are
merely rejected without stating any grounds. Further no reply to the Applications and RTI’s
filed. Who should be held accountable for this? What measures are taken by the administrative
and jail authorities to check the corrupt and illegal practices while granting Parole in some of the
cases?

Even the Hon’ble Supreme Court and High Courts have questioned the administrative authorities
on what grounds parole is granted and why discrimination made between the rich and poor. For
instance Hon’ble Justices SC Dharmadhikari and Bharati Dangre of the Bombay High Court in
one of the cases directed the State to submit an affidavit detailing the steps followed while
granting parole and furlough to an “average” inmate and whether the poor are also granted
parole.

It is important to note that the grant of parole is not a matter of right, but a concession granted to
the prisoner. The grant is regulated by rules laid down in each State and is a part of executive
discretion. Such discretion should not be exercised arbitrarily or capriciously. This call for a
significant role to be played by state and jail authorities in this regard. They should understand

The parole system in India : A case law analysisPage 19

the offender’s social history. The grounds on which parole to be granted have to be properly
examined. The grant of parole should be based on considerations such as: Nature of Offence and
circumstances related thereto; Time spent in prison; Conduct of the convict; Previous
antecedents, if any; Possibility of engaging in illegal activities, committing crimes, during the
period; Possibility of seeking vengeance, causing harassment, in specific categories of crimes. It
should be ensured that the convict should not be deprived of his rights as a human being. The
liberties and freedoms remain curtailed during the term of sentence. But that should not take
away the fundamental humane considerations of life. All are equal in the eyes of law, none is
rich or poor, educated or uneducated. Thus different treatment within the prison is uncalled for. It
is high time that the administrative and jail authorities act in a reasonable, unbiased and
responsible manner.

The parole system in India : A case law analysisPage 20

 CONCLUSIONS

Freedom and liberty of conscience should be the concept of parole and establish societal love
and acceptance. Inconsistent orders based on irrelevant grounds, False police reports, misuse of
power and position should be avoided in parole. It is important to review the existing system and
procedures of Parole and give serious consideration so that the deserved should not be rejected.

Parole is said to be one of the major correctional process in jail reforms. It is for the social
rehabilitation of the prisoners, a way to help them to come back into the mainstream of life.

In recent times, one cannot deny that the concept of parole been changed in order to suit needs,
especially of the “highly influential class” prisoners. They have used parole time and again to
escape the prison sentence. We have examples where on the one hand parole was granted to the
highly influential class on frivolous grounds, while on the other hand there are lakhs of other
prisoners, uninfluential, and do not have means to utilize the process, or were refused the benefit
on simple grounds.

The grant of parole should be based on considerations such as: Nature of Offence and
circumstances related thereto; Time spent in prison; Conduct of the convict; Previous
antecedents, if any; Possibility of engaging in illegal activities, committing crimes, during the
period; Possibility of seeking vengeance, causing harassment, in specific categories of crimes. It
should be ensured that the convict should not be deprived of his rights as a human being. The
liberties and freedoms remain curtailed during the term of sentence. But that should not take
away the fundamental humane considerations of life.

Release on parole is a wing of the reformative process and is expected to provide opportunity to
the prisoner to transform himself into a useful citizen. Parole is a grant of partial liberty of
lessening of restrictions to a convict prisoner.

Parole is essentially an executive function and instances of release of detenues on parole were

literally unknown until this Court and some of the High Courts in India in recent years made
orders of release on parole on humanitarian considerations.

The parole system in India : A case law analysisPage 21

 BIBLIOGRAPHY

1. History of Parole System, www.wikipedia.org.

2. JaytilakGuha Roy, Prisons and Society: A Study of the Indian Jail System (Gian
Publishing House Delhi 1989).
3. J. C. Chaturvedi, Penology and Correctional Administration (Isha Books New Delhi
2006).
4. All India Jail manual v. Indian Kanoon.com for relevant court decisions.
5. www.indiankanoon.com
6. Manupatra for cases and citations of various cases
7. http://www.shareyouressays.com/essays/essay-on-judicial-trend-of-parole-system-in-
india-1215-words/121541
8. http://intolegalworld.com/2018/09/20/the-parole-system-in-india/

The parole system in India : A case law analysisPage 22