"Will Covid Leave Period Of Convict's Parole Be Considered To Calculate His Period Of Actual Sentence?" : Supreme Court To Consider

The Supreme Court of India will consider the question of whether the Covid Leave period of parole of a convict can be considered for calculating his period of actual sentence or not.

The Court will also consider if that period can be considered as the period already undergone by him or not by virtue of court's order in the suo moto case regarding Contagion of Covid 19 virus in prisons (whereby it directed States and UTs to determine which class of prisoners can be released on parole or an interim bail) and the subsequent Notification issued by the Maharashtra Government granting emergency parole.

A Bench comprising the Chief Justice of India NV Ramana, Justice AS Bopanna and Justice Hima Kohli issued the direction while considering case of the appellant who has undergone actual sentence of 11 years, 08 months and 05 days and was granted Emergency Covid Parole Leave on 15th May 2020, is on parole leave till date, and the period of parole has not been counted while calculating his total period of actual sentence.

The Bench had earlier directed the State of Maharashtra to take a policy decision as to whether the Covid Leave period of parole of a convict can be considered for calculating his period of actual sentence or not. The State had also been asked to decide whether such a decision is to be applied to all the prisoners or some exceptions are required to be made.

However, the Bench was informed by the State that it cannot take a policy decision in this matter, as it is barred by Section 433 A of the Criminal Procedure Code which provides for restriction on powers of remission or commutation.

According to Section 433 A, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.

The Bench has therefore directed the Counsel for the State of Maharashtra to supply a copy of the petition to the office of the Solicitor General and all the State counsels. The matter will now be heard with the suo moto case regarding contagion of Covid 19 virus in prisons.

The present appeal has been filed against Bombay High Court's order dated 02.09.2010 acquitting the appellant under Section 498A of the Indian Penal Code and upholding his conviction under Section 302 IPC.

On last occasion, the Bench was informed by State's Counsel that there are about 20,000 prisoners, whose cases are similar to the appellant.

The present appellant was released on Emergency Covid Parole Leave on 15th May 2020 as per Government Notification dated 8th May 2020 and he is still on parole leave.

The Counsel for the State informed the Court that the case of a convict, who has been awarded life imprisonment, is considered by the State Government for pre-mature release after completion of 14 years of actual sentence as per the Prisoners Act.

The Bench had therefore observed that had the appellant not been granted parole on 15th May 2020, he would have completed 14 years of actual sentence and, thus, his case would have been considered for pre-mature release.

The Bench had also considered the total period of sentence undergone by the appellant as stated in the Surrender Certificate dated 27.10.2021 provided by the State of Maharashtra:

Under trial period from 10.09.2007 to 00 11 03 12.08.2008 : 11 Months 3 days

The actual imprisonment undergone by the prisoner from 13.08.2008 to 15.05.2020: 11 years 8 months

Remission (including annual good conduct remission and general remission) till date: 5 years 3 months

Total period of imprisonment undergone by the prisoner including remission and excluding out days till Dt.30.09.2021: 17 years 11 months.

The State was represented through Advocate Sachin Patil. The appellant was represented through Advocates Shekhar G.Devasa, Manish Tiwari, Shashi Bhushan Nayar and Ramesh Jadhav.

Case Title: Mubinkhan vs State Of Maharashtra

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