The Gujarat High Court on Friday granted 15-days parole to a convict serving life sentence for burning the Sabarmati Express which led to post-Godhra riots in 2002.

Justice Nisha M Thakore held that grant of parole does not equate to suspension of sentence, but is rather counted as part of sentence, and does not interfere with pending appeal proceedings before the Supreme Court. The Gujarat government had opposed the parole citing judicial precedents.

The petitioner, Hasan Ahmed Charkha alias Lalu, was convicted for offences punishable under the Sections 143, 147, 148, 302, 307, 323, 324, 325, 326, 322, 395, 397, 435, 186, 188, read with Section 120(B), 149, 153(A) of IPC, as well as Sections 141, 150, 151, and 152 of the Indian Railways Act. Additionally, he was convicted under Sections 3 and 5 of the Prevention of Damage to Public Property Act and Section 135(1) of the Bombay Police Act.

The case was registered in 2002 with the Godhra Police Station in Panchmahal, and Charkha was sentenced to life imprisonment by the Additional Sessions Judge in Godhra.

Subsequently, the petitioner approached the High Court in an appeal which was dismissed confirming the order of conviction and sentence of life imprisonment. Subsequently, he approached the Supreme Court through a Special Leave Petition in 2018, which is still pending. While awaiting a decision on the appeal, Charkha applied for bail, which is currently under consideration by the Supreme Court.

In the backdrop of these circumstances, Charkha filed a plea before the High Court seeking parole on the grounds that his presence was required for the weddings of his two nieces. His counsel emphasized that Charkha’s jail conduct record has been good, that he has been granted parole before and had surrendered on time and that no untoward incident has been reported during his earlier releases.

The State however opposed the grant of parole, stating that convicts are not entitled to be released on parole or furlough during pendency of the appeal against the conviction and sentence at a higher court of appeal, in this case the SC. The State further contended that judicial comity demands that the High Court refrain from exercising its powers in this regard where the appellate court is seized of the matter.

It was also submitted that releasing the convict on parole would amount to suspension of sentence, which is only permissible under Section 389 CrPC and therefore, exercise of powers under writ jurisdiction would amount to interference of the appellate court jurisdiction, which is seized of the appeal against conviction.

The key question before the Court was whether, during the pendency of the appeal and bail application before the Supreme Court, the High Court should grant parole to the petitioner through writ jurisdiction under Article 226 of the Constitution of India.

In its decision, the High Court relied on a Supreme Court judgment in the case of Dadu alias Tulsidas v. State of Maharashtra (2000) 8 SCC 437. The Supreme Court's ruling reiterated that parole does not amount to the suspension of the sentence and that the convict continues to serve the sentence despite being granted parole under statutory provisions, rules, jail manuals, or government orders. Based on this legal principle, the Court concluded that it had jurisdiction to examine applications seeking parole leave under Article 226 of the Constitution.

Additionally, the Court referred to a number of precedents along with Rule 335 of the Goa Prisons Rules, 2006, and Rule 832 note (i) of the Jail Manual, and opined, “The conjoint reading of the aforesaid provisions clearly indicates that grant of parole is not treated as suspension of sentence and on the contrary, it has to be read as part of sentence.”

“Thus, in light of the aforesaid expressed provisions and settled legal position, I am of the firm view that the release of prisoner on parole would not amount to suspension of sentence. This Court, therefore, has jurisdiction to entertain the present petition under Article 226 of the Constitution” the court added.

“The petitioner is hereby directed to be released on parole leave for period of 15 days from the date of his actual release, on usual terms and conditions as may be deemed fit by the authorities. The notification issued by the State under section 268 of the Code of Criminal procedure, in case of petitioner, shall remain in abeyance, during the aforesaid period of parole leave,” the court said while allowing the petition.

Case Title: Hasan Ahmed Charkha @ Lalu Thro Afsa Hasan Lalu Versus State Of Gujarat R/Special Criminal Application No. 7866 Of 2023

Case Citation: 2023 Livelaw (Guj) 120

Appearance:

M S Bhadki(8665) For The Applicant(S) No. 1 Mr Makbul I Mansuri(2694) For The Applicant(S) No. 1

Public Prosecutor For The Respondent(S) No. 1

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