Special Parole Granted During COVID Can't Be Counted While Calculating Period Of Imprisonment: Orissa High Court

The Orissa High Court clarified that the period of special parole availed by prisoners due to the outbreak of the COVID-19 pandemic cannot be counted as a period of imprisonment and thus, while counting the period of imprisonment undergone by a convict, the special parole period has to be excluded.

While denying relief to the petitioner who urged the Court to release him from jail custody, the Division Bench of Justice Sangam Kumar Sahoo and Justice Chittaranjan Dash observed:

“…in view of the settled position of law, the special parole period, which was granted in favour of the petitioner on account of COVID-19 pandemic cannot be taken into account for determining the actual period of imprisonment.”

The Court was hearing a plea filed by a person convicted under Sections 376(2)(d)(i)/506 of the IPC and Section 4 of the POCSO Act and was directed to undergo rigorous imprisonment for ten years.

Being aggrieved by the said order, he had earlier approached the High Court in criminal appeal which acquitted him under Section 376(2)(d)(i) but convicted under Section 10 of the POCSO Act and sentenced him to undergo rigorous imprisonment for a period of six years.

While sentencing him so, on 12.10.2022, the High Court verified the case records and came to learn that the petitioner was taken into custody on 11.10.2015 and was released on bail on 25.03.2017. However, after pronouncement of judgment, he was again taken into judicial custody on 30.01.2018.

Thus, the Court deemed that the petitioner had been in judicial custody since then and had remained in jail for more than six years. Therefore, it had ordered release of the petitioner from jail custody.

Despite of the release order, when the petitioner was taken into judicial custody on 31.03.2023, he was constrained to file the instant writ petition seeking his release from illegal confinement.

Saswata Patnaik, Additional Government Advocate appearing for the State informed the Court that though the petitioner was released on special parole on 02.06.2021 when the COVID pandemic was on its peak, the fact was not disclosed before the High Court while the criminal appeal was decided.

Accordingly, she submitted that if the special parole period is excluded from the total period of imprisonment undergone by the petitioner, it is apparent that he has not undergone imprisonment for six years, as has been ordered by the Court. Thus, she argued that he was rightly taken into custody.

The Government Counsel argued that the period of special parole cannot be included in the period of imprisonment and in that respect, she relied upon the judgments of the Supreme Court in Anil Kumar v. State of Haryana & Ors. and Rohan Dhungat & Ors. v. The State of Goa & Ors.

In Anil Kumar, the Apex Court had held that when a prisoner is on parole, his period of release does not count towards the total period of sentence. Similarly, in Rohan Dhungat, it was held as follows:

“…any prisoner who may be influential may get the parole for number of times as there is no restrictions and it can be granted number of times and if the submission on behalf of the prisoners is accepted, it may defeat the very object and purpose of actual imprisonment. We are of the firm view that for the purpose of considering actual imprisonment, the period of parole is to be excluded.”

Therefore, in view of the settled position of law, the Court was of the view that special parole period, which was granted in favour of the petitioner on account of COVID-19 pandemic, cannot be taken into account for determining the actual period of imprisonment.

“…since the petitioner has not undergone the substantive sentence of six years as imposed by this Court after modifying the order of the learned trial Court, rightly the petitioner was taken into judicial custody on 31.03.2023 to serve out the remaining part of the sentence,” it held.

Accordingly, the criminal writ petition was dismissed.

Case Title: Durga Prasad Jena v. State of Odisha & Ors.

Case No: WPCRL No.72 of 2023

Counsel for the Petitioner: Mr. Samvit Mohanty, Advocate

Counsel for the State: Mrs. Saswata Patnaik, Addl. Govt. Advocate

Citation: 2023 LiveLaw (Ori) 120

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