[Maharashtra Prison Rules] Set Off & Remission Included For Calculating Period Of Incarceration To Determine Parole Eligibility: High Court

A division bench of Justice Vinay Joshi and Justice Valmiki SA Menezes sitting at Nagpur while setting aside rejection of a prisoner’s parole application held –

“Therefore, while applying Rule 4[2] of the Rules, one has to calculate the period by including the period of set off and remission earned by the petitioner. Therefore, as admittedly the petitioner has undergone the entire period awarded for the offence punishable under Section 397 of the Code, he is eligible for furlough leave.”

The petitioner was convicted under section 302 (murder) and section 397 (robbery, or dacoity, with attempt to cause death or grievous hurt) of the IPC. He was sentenced to life imprisonment for murder and rigorous imprisonment of 10 years for the robbery charge. Both sentences are running concurrently.

He sought regular parole on account of serious illness of his father. He has been in jail since June 30, 2013. The Divisional Commissioner, Amravati rejected his application on the ground that he has not completed 10 years of imprisonment and hence is not eligible for parole. Hence the present writ petition.

Under Rule 4(2) of the Maharashtra Prison (Parole and Furlough) Rules, 1959 a person convicted under sections 392 – 402 is eligible for parole once he has completed his stipulated sentence under these sections.

The petitioner contended that he has already completed 10 years of imprisonment including the period of set off and remission.

The prosecution submitted that the period of set off and remission cannot be considered for calculation and the actual period of incarceration has to be considered for calculating eligibility.

The court noted that Rule 4(2) gives an exception that on completion of stipulated sentence for the section, the prisoner would be eligible for grant of furlough.

The court noted that if the petitioner was convicted only for offence under 397 IPC, he would have already been released as the period of set off and remission would have been calculated. He is in jail only because he is also sentenced to life imprisonment under Section 302 IPC. As he has undergone the entire period awarded for the offence under section 397 of the IPC, he is eligible for parole, the court held.

“Since the petitioner has already undergone the imprisonment of 10 years, which was imposed for the offence punishable under Section 397 of the Code, he would come out of the rigor of Rule 4[2] of the Rules, and thus, is entitled for regular parole as prayed for”, the court stated.

Another reason of the State for the rejection of parole was that there is possibility of the petitioner who is from Uttarakhand absconding due to his age being 26 years. The court did not find any logic in this ground.

"We do not find any logic that only because the petitioner is a young fellow, he would abscond. There is no regional restriction to consider petitioners case, if otherwise found suitable", said the court. 

The court noted that there is no adverse material against the convict to deny him the right to furlough. Further, he has not been out on either furlough or parole during the last 10 years.

Noting that his father’s illness is not disputed, the court set aside the Divisional Commissioner’s decision and directed the Authority to release the petitioner on regular parole imposing usual terms and conditions.

Case no. – Criminal Writ Petition No. 772 of 2021

Case Title – Shoyab Mehtab Ali v. Divisional Commissioner and Anr.

Citation: 2023 LiveLaw (Bom) 126