Avtar Singh Vs. State of Haryana & Anr.
EmailAppeal: Criminal Appeal No. 271 of 2002
Writ Petition (Crl.) No.119 of 2001
(Arising out of S.L.P.(Crl.) No.4361 of 2000)
(From the Judgment and Order dated 30.11.2000 of the Punjab and Haryana High Court in Crl. Misc. No. 17823-M of 2000)
Writ Petition (Crl.) No.119 of 2001
(Arising out of S.L.P.(Crl.) No.4361 of 2000)
(From the Judgment and Order dated 30.11.2000 of the Punjab and Haryana High Court in Crl. Misc. No. 17823-M of 2000)
Petitioner: Avtar Singh
Respondent: State of Haryana & Anr.
Apeal: Criminal Appeal No. 271 of 2002
Writ Petition (Crl.) No.119 of 2001
(Arising out of S.L.P.(Crl.) No.4361 of 2000)
(From the Judgment and Order dated 30.11.2000 of the Punjab and Haryana High Court in Crl. Misc. No. 17823-M of 2000)
Writ Petition (Crl.) No.119 of 2001
(Arising out of S.L.P.(Crl.) No.4361 of 2000)
(From the Judgment and Order dated 30.11.2000 of the Punjab and Haryana High Court in Crl. Misc. No. 17823-M of 2000)
Judges: G. B. PATTANAIK, S.N. PHUKAN & S.N. VARIAVA, JJ.
Date of Judgment: Feb 19, 2002
Appearances:
Mr.K. P.Singh, Mr.Alok, Advocates for Mr. J. P. Dhanda, Advocate (NP), Mr. Y. Raja Gopala Rao, Mr. Prem Malhotra, Mr. Mahabir Singh, Advocates for the appearing parties.
Head Note:
CRIMINAL LAW
Haryana Good Conduct Prisoners (Temporary Release) Act, 1988
Sections 3(3) and 4 – Parole – Nature and scope – Whether the period of parole includible in the total period of sentence – Effect of Supreme Court’s decision in Sunil Fulchand’s case (JT 2000 (2) SC 230) in case of punitive detention – Temporary re-lease of prisoners under the Haryana Act of 1988 – Section 3(3) providing that the period of temporary release contemplated by section 3 shall not be counted towards the total period of sentence of a prisoner – Constitutional validity of such provision – Whether it is arbitrary, illegal and ultra vires to the Constitution – Whether it is discriminatory vis-a-vis section 4 where in re-spect of temporary release on furlough, such period is includible in the total period of sentence – Petitioner filing application seeking direction for inclusion of the period of temporary re-lease in the total period of imprisonment undergone by him – On dismissal of the application, petitioner filing appeal and also filing writ challenging the constitutional validity of section 3(3). Dismissing the appeal as well as the writ, held, section 3 has been enacted to meet certain situations of the prisoner but section 4 has been enacted as a reformative measure and therefore, the classification being based on rational criteria cannot be held to be discriminatory. Sunil Fulchand’s case had clearly laid down that though ordinarily the period of temporary release on parole needs to be counted towards the total period of detention, such condition can be curtailed by the legislative Act, rules, instructions or terms of grant of parole. Section 3(3) being a valid piece of legislation, by denying the period of parole in counting the actual sentence, it cannot be said that the right of a prisoner has been taken away.
Held:
Parole is essentially an executive function and now it has become an integral part of our justice delivery system as has been recognised by courts. Though, the case of Sunil Fulchand Shah (JT 2000 (2) SC 230) was a case of preventive detention, we are of the opinion that the same principle would also apply in the case of punitive detention. (Para 10)
Thus, the constitution bench by majority decision clearly held that the period of temporary release of a prisoner on parole is to be counted towards the total period of detention, unless it is otherwise provided by legislative Act, rules, instructions or terms of the grant of parole. (Para 11)
Thus, the Legislature for the purpose of temporary release has created two classes of prisoners. If we compare these two sec-tions, we find that conditions of temporary release on furlough under section 4 is more rigorous and a prisoner shall not be entitled to such temporary release unless he fulfills the condi-tions laid down in the said section. But in section 3, no such rigorous condition has been imposed and only the circumstances under which the temporary release can be granted have been stated. Moreover, certain classes of prisoners cannot get the benefit of furlough. (Para 13)
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 our considered opinion, this classification is based on ration-al criteria and cannot be said to be discriminatory in nature. (Para 16)
By a valid legislative Act, the period of temporary release on parole has been denied while counting the actual sentence under-gone by the prisoner. It cannot be said that such right of a prisoner has been taken away without due process of law. (Para 18)
Cases Reffered:
1. State of Haryana and Others v. Mohinder Singh and Others (JT 2000 (1) SC 629) (Para 16)
2. Sunil Fulchand Shah v. Union of India and Ors. (JT 2000 (2) SC 230) (Paras 8)
3. Sunil Batra v. Delhi Administration and Others etc. (1979 SCR (1) 392) (Para 14)
4. Cha-rles Gurmukh Sobhraj v. Delhi Administration and Others (Para 14)
2. Sunil Fulchand Shah v. Union of India and Ors. (JT 2000 (2) SC 230) (Paras 8)
3. Sunil Batra v. Delhi Administration and Others etc. (1979 SCR (1) 392) (Para 14)
4. Cha-rles Gurmukh Sobhraj v. Delhi Administration and Others (Para 14)
JUDGEMENT:
Phukan, J.
1. Leave is granted.
2. This appeal by special leave and the writ petition were heard together as the questions involved are common and, therefore, by this judgment we dispose of both the appeal and the writ peti-tion.
3. 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 of 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.
4. When both the appeal and the writ petition came before a bench of this Court, these were referred to a larger bench with the following observations:-
“In the writ petition, section 3(iii) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 is challenged on the ground that it is violative of Article 14 and Article 21. In State of Haryana v. Mohinder Singh (JT 2000 (1) SC 629 = 2000 (3) SCC-394) and the constitution bench in Sunil Fulchand Shah v. Union of India and Ors. (JT 2000 (2) SC 230 = 2000 (3) SCC 409), this Court held that parole and furlough period can also be counted as the period of sentence of imprisonment. But in those decisions, the question of validity of the impugned sub-section of the Act mentioned above has not been considered. When the con-stitutional validity of the said sub-section is challenged and the focus is made on Article 21, we are of the opinion that this must be heard by a larger bench. Registry will place this matter for orders of the Hon’ble the Chief Justice of India.”
5. That is how both the appeal and the writ petition have come up before this bench.
6. Before we proceed further to consider the contentions of the learned counsel, we extract below sections 3 and 4 of the Act:-
“3.Temporary release of prisoners on certain grounds.-(1) The state government may, in consultation with the district magis-trate or any other officer appointed in this behalf, by notifica-tion in the official gazette and subject to such conditions and in such manner as may be prescribed, release temporarily for a period specified in sub-section (2), any prisoner, if the state government is satisfied that-
(a) a member of the prisoner’s family had died or is seriously ill or the prisoner himself is seriously ill; or
(b) the marriage of prisoner himself, his son, daughter, grand-son, grand daughter, brother, sister, sister’s son or daughter is to be celebrated; or
(c) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricul-tural operation on his land or his father’s undivided land actu-ally in possession of the prisoner; or
(d) it is desirable to do so for any other sufficient cause.
(2) The period for which a prisoner may be released shall be determined by the state government so as not to exceed-
(a) where the prisoner is to be released on the ground specified in clause (a) of sub-section (1), three weeks;
(b) where the prisoner is to be released on the ground specified in clause (b) or clause (d) of sub-section (1), four weeks; and
(c) where the prisoner is to be released on the ground specified in clause (c) of sub-section (1), six weeks:
Provided that the temporary release under clause (c) can be availed of more than once during the year, which shall not, however, cumulatively exceed six weeks.
(3) The period of release under this section shall not count towards the total period of sentence of a prisoner.
(4) The state government may, by notification authorise any officer to exercise its powers under this section in respect of all or any other ground specified thereunder.
4.Temporary release of prisoners on furlough.- (1) The state government or any other officer authorised by it in this behalf may, in consultation with such other officer as may be appointed by the state government, by notification, and subject to such conditions and in such manner as may be prescribed, release temporarily, on furlough, any prisoner who has been sentenced to a term of imprisonment of not less than four years, and who-
(a) has, immediately before the date of his temporary release, undergone continuous imprisonment for a period of three years, inclusive of the pre-sentence detention, if any;
(b) has not during such period committed any jail offence (except an offence punished by a warning) and has earned at least three annual good conduct remissions:
Provided that nothing herein shall apply to a prisoner who-
(i) is a habitual offender as defined in sub-section (3) of section 2 of Punjab Habitual Offenders (Control and Reform) Act 1952; or
(ii) has been convicted of dacoity or such other offence as the state government may, by notification, specify.
(2) The period of furlough for which a prisoner is eligible under sub-section (1) shall be three weeks during the first year of his release and two weeks during each successive year thereafter.
(3) Subject to the provisions of clause (d) of sub-section (3) of section 8, the period of release referred to in sub-section (1) shall count towards the total period of the sentence undergone by a prisoner.”
7. Thus it is seen that under sections 3 and 4, the Legislature has made two categories of prisoners for temporary release; a prisoner released on parole under section 3 is not entitled for counting the period of release towards the total period of sen-tence of imprisonment undergone by him whereas, a prisoner re-leased on furlough, period of such temporary release shall be counted towards his total period of imprisonment.
8. 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 v. Union of India and Ors.1 (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.
9. In Sunil Fulchand Shah (supra), the constitution bench by a majority after considering various dictionary meaning of the word ‘parole’ held that the action for grant of parole, generally speaking, is an administrative action and in paragraph 27 of the judgment, it was held that parole is a form of temporary release from custody, which does not suspend the sentence of the period of detention, but provides conditional release from the custody and changes the mode of undergoing the sentence. However, in paragraph 30 of the judgment, the above position of parole was further clarified as follows:-
“……..Since release on parole is a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and, thus, needs to be counted towards the total period of deten-tion unless the rules, instructions or terms of grant of parole, prescribe otherwise.”(emphasis supplied)
In the same paragraph, the bench also 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 as a term and condition of parole, to the contrary’. (emphasis ours)
10. Parole is essentially an executive function and now it has become an integral part of our justice delivery system as has been recognised by courts. Though, the case of Sunil Fulchand Shah (supra) was a case of preventive detention, we are of the opinion that the same principle would also apply in the case of punitive detention.
11. Thus, the constitution bench by majority decision clearly held that the period of temporary release of a prisoner on parole is to be counted towards the total period of detention, unless it is otherwise provided by legislative act, rules, instructions or terms of the grant of parole.
12. Under section 3 of the Act, the state government can tempo-rarily release a prisoner for a specified period if the govern-ment is satisfied that (i) any member of his family had died or seriously ill or the prisoner himself is seriously ill or (ii) marriage of himself, his son, daughter, etc. is to be celebrated or (iii) such release is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation on his land or his father’s undivided land actually in possession of the prisoner or (iv) is desirable to do so for any other sufficient cause. The period of release is to be determined by the state government in accordance with sub-section (2) and sub-section (3) provides that period of release under this section shall not be counted towards the total period of sentence of prisoner. Under section 4, a prisoner who has been sentenced to a term of impris-onment of not less than 4 years, cannot be temporarily released on furlough unless he has undergone continuous imprisonment for a period of 3 years and has not committed any jail offence (except an offence punished by a warning) and has also earned at least three annual good conduct remissions. This section also provides that the benefit of furlough cannot be granted to the class of prisoners mentioned in proviso to sub-section (1). The period of such temporary release has been fixed in sub-section (2). It is specifically provided in sub-section (3) that period of temporary release on furlough shall be counted towards total period of sentence undergone by a prisoner.
13. Thus, the Legislature for the purpose of temporary release has created two classes of prisoners. If we compare these two sections, we find that conditions of temporary release on fur-lough under section 4 is more rigorous and a prisoner shall not be entitled to such temporary release unless he fulfills the conditions laid down in the said section. But in section 3, no such rigorous condition has been imposed and only the circum-stances under which the temporary release can be granted, have been stated. Moreover, certain classes of prisoners cannot get the benefit of furlough.
14. Before a constitution bench of this Court in Sunil Batra v. Delhi Administration and Others etc. (1978 AIR 1675 = 1979 SCR (1) 392) and Charles Gurmukh Sobhraj v. Delhi Administration and Others, section 30 of the Prisons Act came up for consideration. The said section runs as follows:-
“30.(1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the jailor and all articles shall be taken from which the jailor deems it dangerous or inexpedient to leave in his possession.
(2) Every such prisoner shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night under the charge of a guard.”
15. The gravamen of the argument in that case was that sub-sec-tion (2) does not authorise the prison authorities in the garb of securing a prisoner under sentence of death, to confine him in a cell apart from other prisoners by imposing solitary confinement upon him. This argument was rejected and it was held that it can hardly be questioned that prisoners under sentence of death form a separate class and their separate classification has to be recognised.
16. This Court in State of Haryana and Others v. Mohinder Singh and Others1 (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 prison-ers. In Sunil Batra (supra), the constitution bench has given recognition of creation of a separate class of prisoners undergo-ing death sentence. Section 3 has been enacted to meet the urgent pressing personal problem of a prisoner. As noted above, 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 fur-lough 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 sec-tion 4 has been enacted as a reformative measures as a prisoner has to show good conduct while in incarceration. In our consid-ered opinion, this classification is based on rational criteria and cannot be said to be discriminatory in nature. We, there-fore, find no force in the first contention of the learned coun-sel for the appellant.
17. The second contention of the learned counsel for the appell-ant 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.
18. We also do not find force in the contention of the learned counsel for the appellant that sub-section (3) of section 3 of the Act is hit by Article 21 of the Constitution. By a valid legislative Act, the period of temporary release on parole has been denied while counting the actual sentence undergone by the prisoner. It cannot be said that such right of a prisoner has been taken away without due process of law. Consequently, these contentions of the learned counsel for the appellant are reject-ed.
19. We, therefore, find no merit in the appeal as well as in the writ petition and consequently, both the appeal and the writ petition are dismissed.
1. Leave is granted.
2. This appeal by special leave and the writ petition were heard together as the questions involved are common and, therefore, by this judgment we dispose of both the appeal and the writ peti-tion.
3. 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 of 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.
4. When both the appeal and the writ petition came before a bench of this Court, these were referred to a larger bench with the following observations:-
“In the writ petition, section 3(iii) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 is challenged on the ground that it is violative of Article 14 and Article 21. In State of Haryana v. Mohinder Singh (JT 2000 (1) SC 629 = 2000 (3) SCC-394) and the constitution bench in Sunil Fulchand Shah v. Union of India and Ors. (JT 2000 (2) SC 230 = 2000 (3) SCC 409), this Court held that parole and furlough period can also be counted as the period of sentence of imprisonment. But in those decisions, the question of validity of the impugned sub-section of the Act mentioned above has not been considered. When the con-stitutional validity of the said sub-section is challenged and the focus is made on Article 21, we are of the opinion that this must be heard by a larger bench. Registry will place this matter for orders of the Hon’ble the Chief Justice of India.”
5. That is how both the appeal and the writ petition have come up before this bench.
6. Before we proceed further to consider the contentions of the learned counsel, we extract below sections 3 and 4 of the Act:-
“3.Temporary release of prisoners on certain grounds.-(1) The state government may, in consultation with the district magis-trate or any other officer appointed in this behalf, by notifica-tion in the official gazette and subject to such conditions and in such manner as may be prescribed, release temporarily for a period specified in sub-section (2), any prisoner, if the state government is satisfied that-
(a) a member of the prisoner’s family had died or is seriously ill or the prisoner himself is seriously ill; or
(b) the marriage of prisoner himself, his son, daughter, grand-son, grand daughter, brother, sister, sister’s son or daughter is to be celebrated; or
(c) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricul-tural operation on his land or his father’s undivided land actu-ally in possession of the prisoner; or
(d) it is desirable to do so for any other sufficient cause.
(2) The period for which a prisoner may be released shall be determined by the state government so as not to exceed-
(a) where the prisoner is to be released on the ground specified in clause (a) of sub-section (1), three weeks;
(b) where the prisoner is to be released on the ground specified in clause (b) or clause (d) of sub-section (1), four weeks; and
(c) where the prisoner is to be released on the ground specified in clause (c) of sub-section (1), six weeks:
Provided that the temporary release under clause (c) can be availed of more than once during the year, which shall not, however, cumulatively exceed six weeks.
(3) The period of release under this section shall not count towards the total period of sentence of a prisoner.
(4) The state government may, by notification authorise any officer to exercise its powers under this section in respect of all or any other ground specified thereunder.
4.Temporary release of prisoners on furlough.- (1) The state government or any other officer authorised by it in this behalf may, in consultation with such other officer as may be appointed by the state government, by notification, and subject to such conditions and in such manner as may be prescribed, release temporarily, on furlough, any prisoner who has been sentenced to a term of imprisonment of not less than four years, and who-
(a) has, immediately before the date of his temporary release, undergone continuous imprisonment for a period of three years, inclusive of the pre-sentence detention, if any;
(b) has not during such period committed any jail offence (except an offence punished by a warning) and has earned at least three annual good conduct remissions:
Provided that nothing herein shall apply to a prisoner who-
(i) is a habitual offender as defined in sub-section (3) of section 2 of Punjab Habitual Offenders (Control and Reform) Act 1952; or
(ii) has been convicted of dacoity or such other offence as the state government may, by notification, specify.
(2) The period of furlough for which a prisoner is eligible under sub-section (1) shall be three weeks during the first year of his release and two weeks during each successive year thereafter.
(3) Subject to the provisions of clause (d) of sub-section (3) of section 8, the period of release referred to in sub-section (1) shall count towards the total period of the sentence undergone by a prisoner.”
7. Thus it is seen that under sections 3 and 4, the Legislature has made two categories of prisoners for temporary release; a prisoner released on parole under section 3 is not entitled for counting the period of release towards the total period of sen-tence of imprisonment undergone by him whereas, a prisoner re-leased on furlough, period of such temporary release shall be counted towards his total period of imprisonment.
8. 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 v. Union of India and Ors.1 (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.
9. In Sunil Fulchand Shah (supra), the constitution bench by a majority after considering various dictionary meaning of the word ‘parole’ held that the action for grant of parole, generally speaking, is an administrative action and in paragraph 27 of the judgment, it was held that parole is a form of temporary release from custody, which does not suspend the sentence of the period of detention, but provides conditional release from the custody and changes the mode of undergoing the sentence. However, in paragraph 30 of the judgment, the above position of parole was further clarified as follows:-
“……..Since release on parole is a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and, thus, needs to be counted towards the total period of deten-tion unless the rules, instructions or terms of grant of parole, prescribe otherwise.”(emphasis supplied)
In the same paragraph, the bench also 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 as a term and condition of parole, to the contrary’. (emphasis ours)
10. Parole is essentially an executive function and now it has become an integral part of our justice delivery system as has been recognised by courts. Though, the case of Sunil Fulchand Shah (supra) was a case of preventive detention, we are of the opinion that the same principle would also apply in the case of punitive detention.
11. Thus, the constitution bench by majority decision clearly held that the period of temporary release of a prisoner on parole is to be counted towards the total period of detention, unless it is otherwise provided by legislative act, rules, instructions or terms of the grant of parole.
12. Under section 3 of the Act, the state government can tempo-rarily release a prisoner for a specified period if the govern-ment is satisfied that (i) any member of his family had died or seriously ill or the prisoner himself is seriously ill or (ii) marriage of himself, his son, daughter, etc. is to be celebrated or (iii) such release is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation on his land or his father’s undivided land actually in possession of the prisoner or (iv) is desirable to do so for any other sufficient cause. The period of release is to be determined by the state government in accordance with sub-section (2) and sub-section (3) provides that period of release under this section shall not be counted towards the total period of sentence of prisoner. Under section 4, a prisoner who has been sentenced to a term of impris-onment of not less than 4 years, cannot be temporarily released on furlough unless he has undergone continuous imprisonment for a period of 3 years and has not committed any jail offence (except an offence punished by a warning) and has also earned at least three annual good conduct remissions. This section also provides that the benefit of furlough cannot be granted to the class of prisoners mentioned in proviso to sub-section (1). The period of such temporary release has been fixed in sub-section (2). It is specifically provided in sub-section (3) that period of temporary release on furlough shall be counted towards total period of sentence undergone by a prisoner.
13. Thus, the Legislature for the purpose of temporary release has created two classes of prisoners. If we compare these two sections, we find that conditions of temporary release on fur-lough under section 4 is more rigorous and a prisoner shall not be entitled to such temporary release unless he fulfills the conditions laid down in the said section. But in section 3, no such rigorous condition has been imposed and only the circum-stances under which the temporary release can be granted, have been stated. Moreover, certain classes of prisoners cannot get the benefit of furlough.
14. Before a constitution bench of this Court in Sunil Batra v. Delhi Administration and Others etc. (1978 AIR 1675 = 1979 SCR (1) 392) and Charles Gurmukh Sobhraj v. Delhi Administration and Others, section 30 of the Prisons Act came up for consideration. The said section runs as follows:-
“30.(1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the jailor and all articles shall be taken from which the jailor deems it dangerous or inexpedient to leave in his possession.
(2) Every such prisoner shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night under the charge of a guard.”
15. The gravamen of the argument in that case was that sub-sec-tion (2) does not authorise the prison authorities in the garb of securing a prisoner under sentence of death, to confine him in a cell apart from other prisoners by imposing solitary confinement upon him. This argument was rejected and it was held that it can hardly be questioned that prisoners under sentence of death form a separate class and their separate classification has to be recognised.
16. This Court in State of Haryana and Others v. Mohinder Singh and Others1 (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 prison-ers. In Sunil Batra (supra), the constitution bench has given recognition of creation of a separate class of prisoners undergo-ing death sentence. Section 3 has been enacted to meet the urgent pressing personal problem of a prisoner. As noted above, 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 fur-lough 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 sec-tion 4 has been enacted as a reformative measures as a prisoner has to show good conduct while in incarceration. In our consid-ered opinion, this classification is based on rational criteria and cannot be said to be discriminatory in nature. We, there-fore, find no force in the first contention of the learned coun-sel for the appellant.
17. The second contention of the learned counsel for the appell-ant 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.
18. We also do not find force in the contention of the learned counsel for the appellant that sub-section (3) of section 3 of the Act is hit by Article 21 of the Constitution. By a valid legislative Act, the period of temporary release on parole has been denied while counting the actual sentence undergone by the prisoner. It cannot be said that such right of a prisoner has been taken away without due process of law. Consequently, these contentions of the learned counsel for the appellant are reject-ed.
19. We, therefore, find no merit in the appeal as well as in the writ petition and consequently, both the appeal and the writ petition are dismissed.
