Case BriefsSupreme Court

Supreme Court: In furtherance of Criminal Justice, the bench of Abhay S. Oka* and MM Sundresh, JJ has held that an appeal against conviction filed by an accused under Sub-Section (2) of Section 374 of the Code of Criminal Procedure, 1973 cannot be dismissed on the ground that the accused is absconding.

In the case at hand, the accused was, on 04.09.2009, convicted by the Sessions Court under Sections 302 and 120B of the Penal Code (IPC) and Section 27(1) of the Arms Act, 1959. An appeal was preferred by the accused before the High Court of Patna. He was later declared absconding. On 25th August 2015, a Division Bench of the Patna High Court dismissed the appeal against conviction without adverting to the merits of the appeal on the ground that the accused was absconding.

The High Court held that though the remedy of an appeal is a valuable right, the appellant forfeited his right to prefer an appeal the moment he escaped from the custody and flagrantly abused the process of law. Such deliberate act on the part of the appellant amounts to defiance of the criminal administration of justice. The High Court went on to observe that,

“… the circumstances of the case before it were exceptional and, therefore, the Court was required to deviate from the settled principle of law that once the appellate court has refused to dismiss the appeal summarily, the same must be heard on merits.”

The Supreme Court, however, did not appreciate such approach of the High Court where it had itself recorded that it was deviating from the settled position of law.

The Court observed that the anguish expressed by the High Court about the brazen action of the appellant of absconding and defeating the administration of justice can be well understood. However, that is no ground to dismiss an appeal against conviction, which was already admitted for final hearing, for non-prosecution without adverting to merits.

The Court, hence, set aside the impugned judgment and remanded the matter to the High Court for consideration on merits.

Considering the fact that the appeal against conviction under Section 302 of IPC is of the year 2009, the Court said that necessary priority deserves to be given to the disposal of the appeal. Requesting the High Court to ensure that appeal is disposed of as expeditiously as possible, preferably within a period of six months, the Court held that

“If the appeal could not be heard within a reasonable time, in that event, the appellant will have to be granted a liberty to apply for suspension of sentence.”

[Dhananjay Rai v. State of Bihar, CRIMINAL APPEAL NO.803 of 2017, decided on 14.07.2022]


*Judgment by: Justice Abhay S. Oka

New releasesNews

The spirit of Rule of Law is that the law must prevail and not the power centers.” – Prof. B.B. Pande

Eastern Book Company organized a launch of “Criminal Law & Criminal Justice: Advanced Legal Writings”, a book by Professor BB Pande, on February 26th, 2022, co-hosted by National Law University, Delhi. The book is the result of a one-of-a-kind endeavor, targeted primarily at extending the frontiers of criminal law and criminal justice.

The event was attended by India’s leading jurists, attorneys, and academics, including Justice MN Venkatachaliah, Former Chief Justice of India, Justice Madan B Lokur, Former Judge, Supreme Court,  Prof Upendra Baxi, Emeritus Professor of Law, University of Warwick and Delhi, Prof Issa Shivji,Professor Emeritus of Public Law & First Julius Nyrere Professor of Pan African Studies, University of Dar es Salaam, Prof (Dr) MP Singh, Distinguished Professor of Public Law, Jindal Global University, Mr Gopal Subramanium, Senior Advocate and Mr Siddharth Luthra, Senior Advocate.  Following the inaugural event, Professor Srikrishna Deva Rao, Vice-Chancellor of NLU Delhi, chaired a panel discussion on Criminal Law and Criminal Justice.

About the book 

The book has 12 chapters, divided into 4 parts, namely 

  1. History and evolution of Western & Indian Criminal Law/Systems 
  2. The elements & essential principles of criminal law/liability. 
  3. The critiques of the formal criminal law systems and their resurrection.
  4. The forgotten and ignored premise of the processual justice. 

The first nine papers are about substantive criminal law, and the last three are about procedural law. Each chapter delves into a specific key subject in terms of critical inquiries/issues. 

The writings aim to provide the reader with a better grasp of the dynamics of the criminal law/criminal justice and rule of law from a broad perspective, spanning nations and periods. They reflect the normative and grassroots legality of criminal law and criminal justice. The goal of these writings is to provide a critical understanding on problems that are underrepresented in legal curricula. They have a broader and more critical perspective on criminal law and criminal justice issues that is not constrained by course requirements. The Writings will be ground-breaking in terms of upgrading the knowledge base in the criminal law and criminal justice subjects for students, instructors, and researchers.

As Ms. Harpreet Kaur (host) was describing the book, she mentioned the preface of the book which said that the idea of the book, had been in the professor’s mind since the last six decades of teaching criminal law, which has now culminated into the present book. Furthermore, she described the book as having included all professor’s case files and incorporated writings of legal scholars. “The book is meant for a wider audience and not only for professors and researchers but also for people who are interested in embellishing their criminal knowledge”, she added.

Book release and Panel Discussion

Mr. Surendra Malik,  Chief Editor, Supreme Court Cases began his speech by welcoming all of the panellists. He formally welcomed and thanked Justice M.N. Venkatachaliah for being present for the launch, “He has written a very enlightened and descript introduction to the book”, Mr Malik added.


Extract from the introduction

“Prof. Pande’s thoughts speak of philosophical foundations and shape of the system of criminal justice of the future. The uniqueness of Prof. Pande’s Writing lies in their ability to traverse from the primitive criminal law/criminal justice concepts to the contemporary forms … holding immense value equally for the law student, researcher, lawyer and the Judge.”

― Justice M.N. Venkatachaliah


“I have always maintained this belief and I keep telling people  that they gain certain insights & knowledge in their field as a professor or as a judge. So, whatever we can give, we must put it in a form of a book and it doesn’t matter who publishes it.” (sic), Mr Surendra Malik said. He humorously added that he had been telling Prof. BB Pande for years to write a book, but the maximum that he could get were a few articles out of him. “Prof BB Pande must be happy (on the release of the book), but I am even more excited,” he said. 

Mr Malik shared his feelings that teachers have a unique role to play in students’ life because they can say things dispassionately and a lot of what they say with clarity, will help both students and researchers. He further added that it will be helpful to the judges as well, as judges can’t speak in a way to teach someone, they simply deliver the judgment . “Teachers also need a good textbook. This is the view of Prof. Kelkar as well”he stated (Prof Kelkar has authored many books with EBC, including many bestsellers on Criminal Procedure Code).

Mr Malik explained how Prof BB Pande approached him with his book’s idea, and how he went on to complete writing 12 chapters of the book. Mr Malik was ecstatic about it, and he spoke about the  process of producing the book. He also praised the team who worked on this book, as without them the book would not have been completed. “This book has material which is not to be found anywhere else”, he said with confidence.

After the address by Mr Malik, the book was officially released by panellists. Thereupon, Prof BB Pande addressed the audience by saying “I have my perception that every teacher & equally a perceptive author, is expected to be essentially a good learner” He talked about three lessons he had learned in his six decades of experience, that is: “Criminal law, like any other branch of law, can be better understood and explained by its history or past rather than the contemporary text or its present form alone. Secondly, Criminal law discourse is full of contradictory or antimonial  narratives which impel the reader to search beyond the limited normative boundaries or the half baked rationalizations.” He further explained his learnings with the help of a few examples and theories. Thirdly, “Criminal law is to be taught and understood as a species of law that is bound by its own elemental scheme” he added. He explained this third lesson with a quote by Ellen Norris, which said, “Speaking about critical criminal law thinkers, they view the law as a social, historical and an ethical phenomenon but they also think about law as law.” These were the three lessons of respecting the history of law, he explained. 

 

“In learning Criminal Law, it must be noted that it is never fully resolved instead it is half resolved” – Prof. B.B Pande

In his introductory remarks, Professor Pande discussed the disparities between classroom instruction of criminal law and experienced reality. He talked about how his hands-on experience with criminal law at Beggars Court and Tihar Prison was beneficial. It helped me grasp that the law as it appears in court and legislation is simply one facet of legal reality. The other operational side, as seen by law enforcement agencies such as the police, prosecution, judges, and attorneys, as well as the genuine stakeholders; the accused and victims of crime remains unaddressed in classroom criminal law education. This is the wider component of criminal law that I attempted to cover in-depth in my book,” he explained. 

Prof. Sri Krishna Deva Rao, Vice-Chancellor, National Law University, Delhi, addressed the audience again, expressing his deep thanks for serving as the session’s moderator. As it was difficult to summarise the book in a few lines, he attempted to speak about certain aspects of the subject, “How criminal law evokes a passionate dialogue than any other branch of law, particularly because of its impact on life, liberties & freedoms of individuals caught in the web of the criminal justice system…There are people behind the dockets, not just case numbers.” he continued.

Mr Rao quoted Prof. B.B Pande and exclaimed a part from Kabir ke dohe, “tu kagaz ki likhi mein kehta meri aankhon ki dekhi

Prof Rao ended his address by asking  questions to Prof Issa Shiv Ji. After Prof. Issa Shivji was given the floor to discuss the work, he first complimented Prof Pande on the publication. He also addressed all of the panellists as his friends in the most modest manner. He discussed why he enjoyed reading this book because it is not just a succession of claims but has been presented in a discursive manner; the book brings up arguments among many schools of thought and beliefs, which piqued his attention.

Before addressing the questions, he recounted the history of both countries and discussed social inequality and differing laws. Prof Shivji discusses British colonialists’ experiences in India and how they used this knowledge to criminal law in Tanzania. He began by noting, “Individualisation is an essential process in which Law plays a significant part,” and he went on to remark, “Back then, a civil wrong like non-payment of tax became a criminal infraction by colonialists.”

Prof Rao then proceeded to Mr Siddharth Luthra, Senior Advocate with his questions. Mr Luthra, awed by the opportunity to share the platform with his mentors, speaks about his law school experience and how he planned to pursue a master’s degree in the field.The study of human nature is the practise of criminal law, he remarked. “We are continuously dealing with human nature, and the source and foundation of a lot of criminalisation must be thoroughly examined,” he continued. He described how his father informed him that practising criminal law is the study of human nature, which he still believes. He commended the work of Prof BB Pande, adding, “It is not for the faint of heart, and it demands a sense of knowing.” Later, he discussed the death sentence in India, stating that we, as Indians, criminalise all forms of behaviour and, if not, we enhance the penalty. In India, litigation might be pending for up to 20 years. “Is this justice?” he questioned. “In our nation, there are no punishment guidelines. So here is where pandemonium is born,” he said. 

During his presentation to the audience, he emphasised his dissatisfaction with all of the country’s legal schools, claiming that they exclusively produce products for the Supreme Court. We must urge kids to go out and learn about the criminal justice system in action. “We are merely creating and encouraging students to become Supreme Court attorneys while disregarding the most important aspect; comprehending the realities of criminal law and the Indian system is more top-heavy. Trial lawyers are highly regarded everywhere else. A lawyer’s first encounter with criminal law is with the police, learning evidentiary law at the trial level, he explained.

One must continue learning and be a constant reader.”- Mr Gopal Subramaniam

“I wish I had the power to name a galaxy, I wish I could sort of say that the Milky Way belongs to him, if anyone taught me what compassion is and what law about compassion is, I will never be able to repay that debt to Professor BB Pande,” Mr Gopal Subramaniam said to Prof Pande with great affection. “We require a new worldview and tools to comprehend the law.” Because there is no inherent audit, and we want new instruments capable of changing human awareness.” he explained. He concluded his speech by thanking the audience and expressing his gratitude for the opportunity to be present with three of his great professors and expressed that,De facto equality is not about identifying gender, it is far more, including mental equality”.

There are four kinds of Justices i.e. Justice according to the Law, Justice beside the law, Justice beyond the Law, and Justice beneath the Law.” Prof Upendra Baxi stated.

He also acknowledged Mr Surendra Malik’s and EBC’s  contribution to legal education. During the panel discussion, Professor Upendra Baxi criticised the Indian criminal justice system, saying, “What we teach in criminology in India is a deception, it is a scam on the public. In India, there is no criminal justice system; instead, we have criminal administration of justice… Except in India, no one gets sentenced to prison for punishment. As punishment, one is sentenced to prison (the important term being “as”). The punishment under the Indian Penal Code is just a prohibition on moving outside. Even in prison, all fundamental rights should be respected, including the freedom to travel outside,” (sic) he stated. 

Some books are to be tasted, some are to be swallowed, and some are to be chewed and digested. This is one of those books. – Justice Madan B Lokur 

In his statement to the panel, Justice Madan B. Lokur stated, “Compassion and sensitivity are crucial in criminal law. However, we are now ignoring (these) concerns. We have given up on compensation for people who have been wrongfully held or charged, and there is no police accountability. Should the cops be permitted to get away with this?” 

“Our criminal justice system prefers to keep individuals in jail. Bail is not being granted, and the accused is not being served with a charge sheet. The procedure itself has become a punishment, and the accused is generally the victim,” Justice Lokur observed. “Criminal law, as I view it, has undergone a huge transformation in terms of processes and judgments in the last few years.” In other situations, such as those involving the UAPA, the law has been flipped on its head. Is it due to judicial hesitation, or is it due to the judiciary’s incapacity to recognise what is going on the ground? The judiciary must break free from the ivory towers,” he concluded.

Finally, Prof Rao requested Prof Pande to make closing remarks regarding the book. “It was a significant day because we learned about criminal law from three separate perspectives: academics, the judiciary, and practising attorneys,” he remarked. He went on to say that the goal is to welcome and inspire fresh thinking in criminal law beyond its current, restricted viewpoint and that the spirit of the Rule of Law is that the law must win over power centres.  The event concluded with a vote of thanks by Prof BB Pande. 

“We have to learn about Criminal Law and not see it with the eyes of the State.” – Prof. B.B. Pande

The book is the result of Professor B.B Pande’s academic and practical understanding of criminal law and the criminal justice system in India and overseas. It is a thought-provoking book that investigates the moral and legal philosophy of criminal justice and focuses on the complex and current difficulties confronting India’s criminal justice system. The book is relevant not just for criminal law practitioners and academics, but also for anybody looking to extend their criminal justice knowledge in both substantive and procedural criminal law.


About the author 

Prof. B.B. Pande is a prominent professor at the National Law University in Delhi, as well as a Visiting Professor at the Dr. Ram Manohar Lohiya National Law University in Lucknow. Prof. Pande’s research spans the fields of penal sociology, criminal law and procedure, and criminology. He began teaching at Jabalpur University in 1962 and joined Delhi University as a Professor of Law in 1988.  He has worked as a Consultant (Research) for the National Human Rights Commission (NHRC) in New Delhi from December 2005 to December 2007. In 1988, 1992, 1995, and 1997, he was given a Fellowship by the Max Planck Institute of International and Foreign Penal Law in Freiburg, Germany. In 2003, he was awarded the Senior Social Scientist Award (1995) and the Kumarappa Reckless Award (2002) by the Indian Society of Criminology.

Since 2000, he has served on many Advisory Committees and as a UNDP Expert Consultant to the Kingdom of Nepal’s Rule of Law and Judiciary Reform programs. He was a Visiting Professor at the University of Dar es Salam in Tanzania (East Africa) from 1981 to 1983, the University of Cardiff in Wales (1998), and the University of Hong Kong (1998). Criminal Law, Criminal Procedure, Law of Evidence, Criminology, Juvenile Justice, Human Rights, and Jurisprudence are among his areas of expertise.


The event can be viewed here:


A copy of the book can be bought here: https://www.ebcwebstore.com/product_info.php?products_id=99099892

Events/WebinarsNew releasesNews

Eastern Book Company is happy to announce the release of Criminal Law and Criminal Justice: Advanced Legal Writings by Prof BB Pande. This book is an outcome of a unique initiative aimed at broadening the horizons of the criminal justice system. 

The idea for this book arose out of Prof C Raj Kumar’s invitation to deliver a set of lectures for an Optional Elective Course at the OP Jindal Global University last summer. The commitment arising out of the acceptance of the invitation led the author to organise and give shape to criminal law and criminal justice ideas with which he had been toying with for almost six decades as a teacher of criminal laws. 

The book release will be followed by a Panel Discussion  on the topic “Criminal Law and Criminal Justice”. The panellists for this event include Justice MN Venkatachaliah, Former Chief Justice of India, Justice Madan B Lokur, Former Judge, Supreme Court, Justice AK Sikri, Former Judge, Supreme Court, Prof Upendra Baxi, Emeritus Professor of Law, University of Warwick and Delhi, Prof Issa Shivji,Professor Emeritus of Public Law & First Julius Nyrere Professor of Pan African Studies, University of Dar es Salaam, Prof (Dr) MP Singh, Distinguished Professor of Public Law, Jindal Global University, Mr Gopal Subramanium, Senior Advocate and Mr Siddharth Luthra, Senior Advocate. The panel discussion will be moderated by Prof. Srikrishna Deva Rao, Vice Chancellor, NLU, Delhi. 


Excerpt from the Preface


This book relates to 12 selected criminal law/criminal justice themes that have assumed significance in contemporary times, more particularly in the context of Indian society. As the primary focus of the Writings is on the advanced debates and controversies, the discussions herein have refrained from raising the basic liability issues in the traditional style. However, the rootedness of the advanced debates in the basic elements ensures that the traditional knowledge holders would not feel handicapped in any manner. Therefore, though the Writings would have a greater attraction for those interested in teaching and researches in criminal law/criminal justice issues, even those who are interested in embellishing their criminal law or criminal justice knowledge or broadening the horizons of their understanding of the subjects would stand to gain enormously from this publication. The Writings have tried to incorporate the latest law trends and current research in the field of criminal law and criminal justice and that required falling back upon the writings and publications of the leading scholars of the West and India.


Excerpt from the Foreword


Prof. Pande’s thoughts speak of philosophical foundations and shape of the system of criminal justice of the future.

Uniqueness of Prof. Pande’s Writing lies in their ability to traverse from the primitive criminal law/criminal justice concepts to the contemporary forms … holding immense value equally for the law student, researcher, lawyer and the Judge.”

Justice M.N. Venkatachaliah

Former Chief Justice of India


Table of Contents


Introduction and Thematic Break Up

A Key to Understanding the Twelve Writings

Part A

HISTORY AND EVOLUTION OF WESTERN AND INDIAN CRIMINAL LAW/SYSTEMS

History of the English and the Roman Criminal Law

History and Early Evolution of the English Criminal Law

History and Evolution of the Indian Criminal Law: Motivations, Structure of the Indian Penal Code

Penal Code as the Rationalised Criminal Law in the Early Colonial and Pre-independence India

Part B

THE ELEMENTS AND ESSENTIAL PRINCIPLES OF CRIMINAL LAW/LIABILITY

The “Actus Reus” Element

The Mens Rea or Guilty-mind Element

Part C

THE CRITIQUES OF THE FORMAL CRIMINAL LAW SYSTEM AND ITS RESURRECTION

Growing Critiques of the Formal Criminal Law System in the Western World

Evaluations of the Critical Criminal Law Writing

Indicators of Resurrection of the Formal Criminal Law Systems in the West and in India

Part D

THE FORGOTTEN AND IGNORED PREMISE OF THE PROCESSUAL JUSTICE

Rationalising the Pre-Trial Processes in India

Strivings for the Creation of Enabling Justicing Conditions

Interlocking Nature of the Procedural Due Process and the Constitutional Due Process

 

Glossary of the Legal and Colloquial Terms used in the Writings

Subject Index


Link for Purchase


A copy of the book can be ordered from this link

 

 

 

 

 

Case BriefsSupreme Court

Supreme Court: Explaining the principles of sentencing policy, the 3-judge bench of NV Ramana, CJ and Surya Kant* and AS Bopanna, JJ has held that while there are practical difficulties in achieving absolute consistency in regards to sentencing, the awarding of just and proportionate sentence remains the solemn duty of the Courts and they should not be swayed by nonrelevant factors while deciding the quantum of sentence.

Principle of proportionality

Explaining the principle of proportionality, the Court said that this principle of commensurate sentencing treats offenders as agents capable of evaluating their own illegal conduct and the social censure associated with it, which is communicated to them by imposing a proportionate sentence. The exercise for assessing ‘proportionality’ is thus dependent upon the gravity of the offence which is determined according to –

(a) mischief caused or risk involved in the offense;

(b) the overall conduct of the offender and;

(c) motives ascribed to the felon.

The Court also stressed upon the guarantee of even-handedness before the law(s), as enshrined in Article 14 of the Constitution and said that the equality of treatment so as to eliminate discriminatory practices in the award of sentencing, is integral to the canons of proportionality.

It, however, clarified that,

“… we cannot be incognizant of the fact that there are practical difficulties in achieving absolute consistency in regards to sentencing. It must be candidly acknowledged that there is an element of discretion present while adjudicating the issue of sentence, however, the same cannot be exercised in an unprincipled manner. This Court has explicitly ruled out the practice of awarding disproportionate sentences, especially those that showcase undue leniency, for it would undermine the public confidence in efficacy of law.”

What should the Courts do? 

Noticing that the sentencing policy keeps pace with changing time, the Court said that the primary emphasis while deciding the quantum of sentence should lie on the gravity or penal value of the offense. However, other guiding elements of rehabilitative justice model, including, appreciation of grounds for mitigation of sentence also deserve to be duly considered within the permissible limits of judicial discretion.

“The awarding of just and proportionate sentence remains the solemn duty of the Courts and they should not be swayed by nonrelevant factors while deciding the quantum of sentence. Naturally, what factors should be considered as ‘relevant’ or ‘non-relevant’ will depend on the facts and circumstances of each case, and no straight jacket formula can be laid down for the same.”

[Surinder Singh v. State, 2021 SCC OnLine SC 1135, decided on 26.11.2021]


*Judgment by: Justice Surya Kant

Know Thy Judge | Justice Surya Kant


Also read:

Explained| Is ‘motive’ an indispensable ingredient for proving the charge of attempt to murder?

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has formulated “broad, general” principles governing rules for granting parole and furlough, holding that parole and furlough are distinct in nature and that although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough.

Interpreting the Bombay Furlough and Parole Rules, made pursuant to Section 59 of the Prisons Act 1894, the Court noticed that the same do not confer a legal right on a prisoner to be released on furlough.

“The grant of furlough is regulated by Rule 3 and Rule 4. While Rule 3 provides the eligibility criteria for grant of furlough for prisoners serving different lengths of imprisonment, Rule 4 imposes limitations. The use of the expression “may be released” in Rule 3 indicates the absence of an absolute right. This is further emphasised in Rule 17 which states that said Rules do not confer a legal right on a prisoner to claim release on furlough. Thus, the grant of release on furlough is a discretionary remedy circumscribed by Rules 3 and 4 extracted above.”

The principles laid down by the Court are:

  • Furlough and parole envisage a short-term temporary release from custody;
  • While parole is granted for the prisoner to meet a specific exigency, furlough may be granted after a stipulated number of years have been served without any reason;
  • The grant of furlough is to break the monotony of imprisonment and to enable the convict to maintain continuity with family life and integration with society;
  • Although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough;
  • The grant of furlough must be balanced against the public interest and can be refused to certain categories of prisoners.

Important Rulings on the difference between Furlough and Parole

State of Maharashtra v. Suresh Pandurang Darvakar, (2006) 4 SCC 776

While both parole and furlough are temporary releases from confinement, parole is granted only for a specific purpose. A prisoner is entitled to apply for furlough once he has served the minimum years of sentence as stipulated in Rule 3.

The “furlough” and “parole” have two different purposes. It is not necessary to state the reasons while releasing the prisoner on furlough, but in case of parole reasons are to be indicated in terms of Rule 19. But release on furlough cannot be said to be an absolute right of the prisoner as culled out from Rule 17. It is subject to the conditions mentioned in Rules 4(4) and 6. Furlough is allowed periodically under Rule 3 irrespective of any particular reason merely with a view to enable the prisoner to have family association, family and social ties and to avoid ill-effect of continuous prison life. Period of furlough is treated as a period spent in the prison. But Rule 20 shows that period spent on parole is not to be counted as remission of sentence. Since the furlough is granted for no particular reason, it can be denied in the interest of society; whereas parole is to be granted only on sufficient cause being shown.

State of Haryana v. Mohinder Singh, (2000) 3 SCC 394

“… when a prisoner is on parole his period of release does not count towards the total period of sentence while when he is on furlough he is eligible to have the period of release counted towards the total period of his sentence undergone by him.”

Asfaq v. State of Rajasthan, (2017) 15 SCC 55

A parole can be defined as conditional release of prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporarily on some basic grounds. In that eventuality, it is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies.

Furlough, on the other hand, is a brief release from the prison. It is conditional and is given in case of long-term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission.

Key differences highlighted in the judgment are:

  • Both parole and furlough are conditional release.
  • Parole can be granted in case of short-term imprisonment whereas in furlough it is granted in case of long-term imprisonment. Duration of parole extends to one month whereas in the case of furlough it extends to fourteen days maximum.
  • Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons.
  • For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment.
  • The term of imprisonment is not included in the computation of the term of parole, whereas it is vice versa in furlough.
  • Parole can be granted number of times whereas there is limitation in the case of furlough.
  • Since furlough is not granted for any particular reason, it can be denied in the interest of the society.

[State of Gujarat v. Narayana, 2021 SCC OnLine SC 949, decided on 20.10.2021]

_________________________________________________________________________________________________________

Counsels:

For State of Gujarat: Tushar Mehta, Solicitor General

For Respondent: Advocate Sanjiv Punalekar


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: In a case where a man was allegedly murdered by his wife and colleague, the bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has refused to grant bail to the colleague on the ground that he cannot claim parity with the co-accused, i.e. the wife of the deceased, who was granted bail on the ground that she had a child of eleven months with her in jail. The Court noticed that the allegations in the FIR and the material that has emerged from the investigation indicated that a major role has been attributed to him in the murder of the deceased and hence, no bail was warranted.

Three important rulings on principles governing grant of bail

Ram Govind Upadhyay v. Sudharshan Singh, (2002) 3 SCC 598

“Grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained.”

Some of the considerations for grant of bail are:

(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496

It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

  1. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
  2. nature and gravity of the accusation;
  3. severity of the punishment in the event of conviction;
  4. danger of the accused absconding or fleeing, if released on bail;
  5. character, behaviour, means, position and standing of the accused;
  6. likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and
  7. danger, of course, of justice being thwarted by grant of bail.

Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, 2021 (6) SCC 230

Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance.

Read more: “Consent of parties cannot obviate the duty of the High Court to indicate its reasons”; Supreme Court explains the law on Bail

[Mahadev Meena v. Raveen Rathod, 2021 SCC OnLine SC 804, decided on 27.09.2021]

___________________________________________________________________

Counsels:

For appellant: Advocate Chitrangda Rastravara

For first respondent: Senior Advocate Siddhartha Dave


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: The Division Bench of Dhiraj Singh Thakur and Puneet Gupta, JJ., dismissed the application seeking suspension of sentence and for grant of bail to the applicant/appellant on the ground of delay.

The applicant had submitted that he had been put in jail for more than thirteen years. Noticing that the appeal against the order of conviction and sentence dated 23-07-2020 was filed on 06-08-2020. The issue with regard to suspension of sentence and grant of bail on account of delay in disposal of the criminal appeal had been considered by a coordinate bench of this court in Rakesh Kumar v. State of J&K, CRA No. 12 of 2018, wherein the Bench had relied on   Akhtari Bi v. State of M.P., (2001) 4 SCC 355, where the Supreme Court had held that speedy justice was a fundamental right flowing from Article 21 of the Constitution. It was held that a right accrued in favour of the accused to apply for bail in a case where there was delay in the disposal of the trial and appeals in criminal cases. It was further held that if an appeal was not disposed of within a period of 5 years for no fault of the appellant, such convicts may be released on bail on conditions as may be deemed fit and proper by the Court. In computing the period of 5 years the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. It was, further clarified that there may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the appeals filed by them.

Noticing that the appeal was preferred in the year 2018 and therefore, 5 years period had not been completed and even otherwise assuming the said period was over, the Bench said that even then it could not have mechanically granted bail without considering whether the delay in the disposal of the appeal was attributable to the appellant. Considerations as mentioned in the case of Akhtari Bi, for refusal of bail beyond 5 years also indicate that grant of bail at the expiry of five years pendency did not follow as a matter of routine. The nature, gravity and seriousness of the offence would also have to be seen. Hence, the Bench held that since five years had not elapsed from the date of the filing of the present appeal and the matter was already listed in the final hearing column, no ground was made out for suspending the sentence and granting bail in the present case.

[Raghubir Singh v. UT of J&K, 2021 SCC OnLine J&K 375, decided on 28-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court:

Counsel for the Applicant: Adv. Anil Gupta

Counsel for UT of J&K: AAG Aseem Sawhney