To answer the question whether the period of detention would stand automatically extended by any period of parole granted to a detenu, we need to examine the concept and effect of parole more particularly in a preventive detention case.
10. Bail and parole have different connotations in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the CrPC contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested In a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the Court would still retain constructive control over him through the sureties.
In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word 'Bail' is surety. In Halsbury's Laws of England (Halsbury's Laws of England, 4th Ed., Vol. 11, Para 166), the following observation succinctly brings out the effect of bail:
The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody or his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handling him over to the custody of law and he will then be imprisoned.
11. 'Parole', however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. The dictionary meaning of 'Parole' is:
THE CONCISE OXFORD DICTIONARY - NEW EDITION
The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behavior; such a promise, a word of honour.
BLACK'S LAW DICTIONARY - SIXTH EDITION
Release from jail, prison or other confinement after actually serving part of sentence; conditional release from imprisonment which entitles parolee to serve remainder of his term outside confines of an institution, if he satisfactorily complies with all terms and conditions provided in parole order.
According to The law Lexicon [P. Ramanatha Aiyar's The Law Lexicon with Legal Maxims, Latin Terms and Words and Phrases; p. 1410]. 'parole' has been defined as:
A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole.
According to Words and Phrases (Words and Phrases (Permanent Edition); Vol. 31; Pp. 164, 166, 167; West Publishing Co.]
'Parole' ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. People ex. rel. Rainonev. Murphy, 135 NE 2d 567, 571, 1 N.Y. 2d 367, 153 N.Y.S, 2d 21,26.
'Parole' does not vacate sentence imposed, but is merely a conditional suspension of sentence. Wooden v. Goheen Ky. 255 SW 2d 1000, 1002.
A 'parole' is not a 'suspension of sentence,' but is a substitution, during continuance of parole, of lower grade of punishment by confinement in legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the Court. Jenkins v. Madigari C.A. Irid, 211 F. 2d904, 906.
A 'parole' does not suspend or curtail the sentence originally imposed by the Court as contrasted with a 'commutation of sentence' which actually modifies it.
12. In this country, there are no statutory provisions dealing with the question of grant of parole. The CrPC does not contain any provision for grant of parole. By administrative instructions, however, rules have been framed in various States, regulating the grant of parole. Thus, the action for grant of parole is generally speaking an administrative action. The distinction between grant of bail and parole has been clearly brought out in the judgment of this Court in State of Haryana v. Mohinder Singh MANU/SC/0073/2000 : 2000CriLJ1408 to which one of us (Wadhwa, J.) was a party. That distinction is explicit and I respectfully agree with that distinction.
13. Thus, it is seen that 'parole' is a form of "temporary release" from custody, which does not suspend the sentence or the period of detention, but provides conditional release from custody and changes the mode of undergoing the sentence.
16. Since, release on parole is only a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and, thus, needs to be counted towards the total period of detention unless the rules, instructions or terms for grant of parole, prescribe otherwise. The period during which parole is availed of is not aimed to extend the outer limit of the maximum period of detention indicated in the order of detention. The period during which a detenu has been out of custody on temporary release on parole, unless otherwise prescribed by the order granting parole, or by rules or instructions, has to be included as a part of the total period of detention because of the very nature of parole.
The detenu is not a free man while out on parole. Even while on parole he continues to serve the sentence or undergo the period of detention in a manner different than from being in custody. He is not a free person. Parole does not keep the period of detention in a state of suspended animation. The period of detention keeps ticking during this period of temporary release of a detenu also because a parolee remains in legal custody of the State and under the control of its agents, subject to any time, for breach of condition, to be returned to custody.
The answer to the question, therefore, is that the period of detention would not stand automatically extended by any period of parole granted to the detenu unless the order of parole or rules or instructions specifically indicates as a term and condition of parole, to the contrary. The period during which the detenu is on parole, therefore, requires to be counted towards the total period of detention.
IN THE SUPREME COURT OF INDIA
W.P. (Crl.) No. 248 of 1988 (with W.P. (Crl.) No. 831-1990 and SLP(Crl.) No. 1492 of 1988
Decided On: 16.02.2000
Sunil Fulchand Shah Vs. Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
Dr. A.S. Anand, CJI., G.T. Nanavati, K.T. Thomas, D.P. Wadhwa and S. Rajendra Babu, JJ.
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