Convicts Can't Invoke Section 389 CrPC To Seek Interim Suspension Of Sentence For Short Term Release: Kerala High Court

A Division Bench of Justice Alexander Thomas and Justice C. Jayachandran added that the provision is meant for suspending the execution of the sentence during the pendency of an appeal on its merits. 

"Enabling release under Section 389 for short-term requirements is neither statutory, nor conducive, besides being subversive and in disregard of the special provisions of the Prisons Act and Rules."

The petitioner had approached the Court challenging the denial of parole/leave to her husband, a convicted prisoner.

Advocates P. Mohamed Sabah, Libin Stanley, Saipooja, Sadik Ismayil, R. Gayathri, M. Mahin Hamza and Alwin Joseph appearing for the petitioner contended that her husband is entitled to be released on ordinary leave for 60 days in a calendar year under Rule 397 of the Prisons Rules.

On the other hand, the Senior Government Pleader Saigi Jacob Palatty argued that the grant of leave is discretionary. Additional Advocate General Asok M Cherian also appeared in the matter.

The Court found that the practice of seeking interim suspension of sentence and release on interim bail under Section 389 CrPC for short-term requirements is not sanctioned by law. It added that the appropriate legal recourse for seeking release on short-term grounds lies in the provisions of the Kerala Prisons and Correctional Services (Management) Act, 2010 and the Prisons Rules. 

"We also find a cardinal distinction between the nature of release of a convict pursuant to suspension of sentence under Section 389, CrPC and grant of relief/parole under the Prisons Act and Rules. In the case of the former, the period during which the convict was released shall be excluded in computing the term, for which he is sentenced. However, in the case of latter, the period of leave/parole will be treated as part of the term, for which the convict is sentenced. This distinction is a clear pointer to the proposition that release of the convict for short-term requirements, be it under emergent or ordinary leave, is to be dealt with in accord with the Prisons Act and Rules and not under Section 389, CrPC." 

It was also observed that a convict may approach the court under Article 226 of the Constitution if an order for leave is not granted or if the statutory authority does not take action within a reasonable time, if the statutory remedy is not feasible or if the fact situation does not offer a remedy under the Prisons Act and Rules.

"Power under Section 389 was coined only to refuse the jurisdiction under Article 226 of the Constitution in the matter of granting emergent/ordinary leave. We are neither in a position to attorn the conclusion that the power under Article 226 is not available in the given subject matter, nor could we accede to the existence of such a power in Section 389, Cr.P.C." 

The court clarified that Section 389 CrPC pertains to the suspension of the execution of a sentence pending the appeal of a conviction. It is not intended to be utilized for addressing the short-term personal requirements of the convict. Instead, the Court emphasised that convicts seeking temporary release for purposes like medical treatment, attending a family function such as a marriage, or other personal reasons should follow the procedures laid down under the Prisons Act and Rules.

The Court also rejected the adverse police report suggesting a threat to public peace and tranquillity upon his release since he had been released on interim bail nine times without incident. Thus, the adverse police report was found unsustainable and inapplicable.

However, the Bench acknowledged the contention of the Public Prosecutor that repeated release of a life convict, either on leave/parole or interim bail, will send a wrong message to the community at large, which expects the incarceration of a convict and therefore, that is a valid ground for refusal of the leave/parole. 

In the same decision, it was held that prisoners do not have an inherent right to claim parole or leave and that the right to seek temporary release is contingent on meeting the statutory conditions under the Prisons Act and Rules and the discretion of the competent authority.

Case Title: Sandhya v Secretary & Ors.

Citation: 2023 LiveLaw (Ker) 388

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