Holding

Section 3(3) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, which excludes the period of parole from the total sentence, is constitutionally valid.

Summary

Avtar Singh, a convicted prisoner, applied to have the period of his parole counted towards his total sentence. The Punjab and Haryana High Court rejected his claim, holding that Section 3(3) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 excludes parole periods from the total sentence. He appealed and also filed a writ petition challenging the constitutional validity of that provision on grounds of violation of Articles 14 and 21 and alleged discrimination between parole and furlough. The Supreme Court examined the legislative classification under Sections 3 and 4, noting that parole under Section 3 is a less stringent, situational release, whereas furlough under Section 4 is a reformative measure with stricter eligibility. Relying on the precedent in Sunil Fulchand Shah’s case, the Court held that while parole periods are ordinarily counted, the legislature may lawfully exclude them, and the classification is rational, not discriminatory. Consequently, Section 3(3) was upheld as constitutionally valid and the appeal and writ petition were dismissed.

Issues considered

The period of parole granted to a prisoner should be counted towards the total period of imprisonment.
Whether Section 3(3) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 violates Article 14 of the Constitution.
Whether Section 3(3) of the Act violates Article 21 of the Constitution.
Whether the differential treatment of parole (Section 3) and furlough (Section 4) amounts to unlawful discrimination.

Legislation cited

Constitution of Indias. Article 14, s. Article 21
Haryana Good Conduct Prisoners (Temporary Release) Act, 1988s. 3(3), s. 4(3)
Prisons Acts. 30

Subjects

parolefurloughtemporary releaseArticle 21Article 14discriminationconstitutional validityprison lawsentence calculation

Judgment

A AVTAR SINGH
V.

ST ATE OF HAR YANA AND ANR.

FEBRUARY 19, 2002

B [G.B. PATTANAIK, S.N. PHUKAN AND S.N. VARIAVA, JJ.l

Constitution of lndia--Artic/e 21.

Haryana Good Conduct Prisoners (Temporary Release) Act, 1988-Ss. >
C 3(3) and 4-Release of a Prisoner on parole-·fnc/usion of in the total period
of detention-Release of a prisoner on parole and furlough- Distinction
between-Held, period of release of a prisoner on parole though ordinarily
entitled to be counted towards the total period of detention, same could be
curtailed by legislative Act, Rules, instructions or terms- -S-3(3) of the Act
D providing that a prisoner released on parole not entitled to count the said
period toward5 the total period of detention is valid and thus not violative of
Artie/, 21--classification of prisoners released on parole under S-3 and on
furlough under S-4 held not discriminatory.

The issue involved in the present appeal and writ petition is whether
F the period of parole availed by a convict could be included in the total period
of imprisonment undergone by him. High court dismissed the application of
appellant-Convict holding that the period of parole could not be counted
towards the actual sentence undergone by him. Aggrieved, appellant has filed
the present appeal and writ petition challenging the constitutional validity of
S-3(3) of the Haryana Good Conduct Prisoners (Temporary Release) Act,
F 1988.

Dismissing the appeal and the writ petition, the Court

HELD : I.I. Under sections 3 and 4 of the Haryana Good Conduct
Prisoners (Temporary Release) Act, 1988 the legislature has made two
G categories of prisoners for temporary release, a prisoner released on parole
under section 3 is not entitled for counting the period of release towards the
total period of sentence of imprisonment undergone by him whereas, a
prisoner released on furlough, period of such temporary release shall be
counted towards his total period of imprisonment. The Constitution Bench
in Sunil Fulchand Shah's case held that the period of temporary release of a
H 1082
A VT AR SINGH v. STATE OF BARY ANA 1083
prisoner on parole is to be counted towards the total period of detention, unless A
it is otherwise provided by legislative act, rules, instructions or terms of the
gnmt of parole. It cannot be held that sub-section (3) of Section 3 of the Act
is hit by Article 21 of the Constitution. By a valid legislative act the period of
temporary release on parole had been denied while counting the actual
sentence undergone by the prisoner. lt cannot be said that such right of a B
prisoner has been taken away without due process of law.
[1086-G; 1087-G; 1089-H)

Sunil Fulchand Shah v. Union ofIndia and Ors., [2000) 3 SCC 409, relied
on.

l.2. The legislature for the purpose of temporary release has created C
two classes of prisoners. The conditions of temporary release on furlough
under Section 4 is more rigorous and a prisoner shall not be entitled to such
temporary release unless he fulfills the conditions laid down in the said section.
But in Section 3 no such rigorous condition has been imposed and only the
circumstances under which the temporary release can be granted have been D
stated. Moreover certain classes of prisoners cannot get the benefit of furlough.
On close look at both the sections it would appear that these sections operate
on different fields. Section 3 has been enacted to meet certain situation of the
prisoner but Section 4 has been enacted as a reformative measures as a
prisoner has to show good conduct while in i11carceration Thus classification
is based 011 rational criteria and cannot be said to be discriminatory in nature. E
(1089-D-Ei

Sunil Batra v. Delhi Administration and Oro. etc., and Charles Gurmukh
Sobraj v. Delhi Administration and Ors., (1978) AIR SC 1675 ~ (1979( SCR I
392 and Stare of Haryana and Ors. v. Mohinder Singh and Ors.. [200013 SCC
394, referred to. F
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
271 of 2002.

From the Judgment and Order dated 30.11.2000 of the Punjab and
Haryana High Court in Crl. Misc. No. 17823-M of 2000. G
WITH

W.P. (Crl.) No. 119 of 200 I.

K.P. Singh, Alok, for J.P. Dhanda, (NP), Y. Raja Gopala Rao, Prem
Malhotra and Mahabir Singh for the appearing parties. H
1084 SUPREME C'OliRT REPORTS [2002] I S.C.R.

A The Judgment of the Court was delivered by

PHUKAN, J. Leave is granted.
This appeal by special leave and the writ petition were heard together
as the questions involved are common and, therefore, by this judgment we
B dispose of both the appeal and the writ petition.

The appellant - Avtar Singh, a convict, is undergoing the sentence of
imprisonment. He filed an application before the Punjab and Haryana High
Court seeking for a direction to the State Government to include the period
of parole availed by him in the total period of imprisonment undergone by
C him. The application was dismissed by the impugned judgment holding that
the period of parole cannot be counted towards the actual sentence undergone
by him. Being aggrieved, present appeal by special leave has been filed.
Avtar Singh has also filed the writ petition challenging the vires of sub-
section (3) of Section 3 of the Haryana Good Conduct Prisoners (Temporary
Release) Act, 1988 (for short 'the Act') on the ground that the sub-section
D is arbitrary, illegal, ultra vires and unconstitutional.

When both the appeal and the writ petition came before a Bench of this
Court, these were referred to a larger Bench with the following observations:-

"ln the writ petition Section 3(3) of the Haryana Good Conduct
Prisoners (Temporary Release) Act, 1988 is challenged on the ground
E that it is violative of Article 14 and Article 21. In State of Haryana
v. Mohinder Singh, [2000] 3 SCC 394 and the Constitution Bench in
Sunil Fulchand Shah v. Union of India and Ors., [2000] 3 SCC 409.
this Court held that parole and furlough period can also be counted
as the period of sentence of imprisonment. But in those decisions the
question of validity of the impugned sub-section of the Act mentiont:d
F
above has not been considered. When the constitutional validity of
the said sub-section is challenged and the focus is made on Article
21, we are of the opinion that this must be heard by a larger bench.
Registry will place this matter for orders of the Hon 'ble the Chief
Justice of India."
G
That is how both the appeal and the writ petition have come up before
this Bench.
•
Before we proceed further to consider the contentions of the learned
counsel, we extract below Sections 3 and 4 of the Act:-

H "3. Temporary release of prisoners on certain grounds.---{\) The
AVl'AR SINGH v. STATE OF HARY ANA [PHUKAN, J.] I085
State Government may, in consultation with the District Magistrate or A
any other officer appointed in this behalf, by notification in the Official
Gazette and subject to such conditions and in such manner as may be
prescribed, release temporarily for a period specified in sub-section
(2), any prisoner, if the State Government is satisfied that-

( a) a member of the prisoner's family had died or is seriously ill or B
the prisoner himself is seriously ill; or

(b) the marriage of prisoner himself, his son, daughter, grandson,
granddaughter, brother, sister, sister's son or daughter is to be
celebrated; or

(c) the temporary release of the prisoner is necessary for ploughing, C
sowing or harvesting or carrying on any other :igricultural
operation on his land or his father's undivided land actually in
1
possession of the prisoner; or

( d) it is desirable to do so for any other sufficient cause.
D
(2) The period for which a prisoner may be released shall be determined
by the State Government so as not to exceed-

(a) where the prisoner is to be released on the ground specified in
clause (a) of sub-section (I), three weeks;
E
(b) where the prisoner is to be released on the ground specified in
clause (b) or clause ( d) of sub-section (I), four weeks; and

(c) where the prisoner is to be released on the ground specified in
clause (c) of sub-section (I), six weeks:
F
Provided that the temporary release under clause (c) can be availed
more than once during the year, which shall not, however, cumulatively
exceed six weeks.

(3) The period of release under this section shall not count towards
the total period of sentence of a prisoner. G
(4) The State Government may, by notification authorise any officer
to exercise its powers under this section in respect of a.II or any other
ground specified thereunder.

4. Temporary release of prisoners on furlough.~(l) The State H
1086 SUPREME coun REPORTS [2002] I S.C.R.

A Government or any other oft:cer authorised by it in this behalf may,
in consultation with such other otlicer as may be appointed by the
State Government, by notification, and subject to such conditions and
in such manner as may be prescribed, release temporarily, on furl0ugh,
any prisoner who has been sentenced to a term of imprisonment of
not less than four years, and who-
B
(a) has, immediately before the date of his temporary release,
undergone continuous imprisonment for a period of three years,
inclusive of the pre-sentence detention, if any;

(b) has not during such period committed any jail offence (except an
C offonce punished by a warning) and has earned at least three
annual good conduct remissions:

Provided that nothing herein shall apply to a prisoner who-

(i) is a habitual offender as defined in sub-section (3) of Section 2
D of Punjab Habitual Offenders (Control and Reform) Act 1952; or

(ii) has been convicted of dacoity or such other offence as the State
Government may, by notification, specify.
•
(2) The period of furlough for which a prisoner is eligible under sub-
section ( 1) shall be three weeks during the first year of his release
E and two weeks during each successive year thereafter.

(3) Subject to the provisions of clause (d) of sub-section (3) of Section
8 the period of release referred to in sub-section (I) shall count towards
the total period of the sentence undergone by a prisoner."

F Thus it is seen that under Sections 3 and 4 the legislature has made two
categories of prisoners for temporary release; a prisoner released on parole
under Section 3 is not entitled for counting the period of release towards the
total period of sentence of imprisonment undergone by him whereas, a prisoner
released on furlough, period of such temporary release shall be counted towards
G his total period of imprisonment.

Two points have been urged by the learned counsel for the appellant.
Firstly, it is submitted that since the Constitution Bench of this Court in Sunil
Fulchand Shah v. Union of India and Ors., [2000] 3 SCC 409 has held that
the period of parole can also be counted as a period of sentence of the
H imprisonment, sub-section (3) of Section 3 of the Act is unconstitutional and
AVT AR SINGH v. STATE OF HARYANA [PHUKAN,J.) 1087

violative of Article 21 of the Constitution. Secondly, it has been contended A
that sub-section (3) of Section 3 of the Act is discriminatory inasmuch as a
prisoner released temporarily under S.:ction 3 shall not be entitled to count
such period of release towards the total period of sentence, whereas temporary
release of a prisoner under Section 4 such temporary period of release on
furlough would be counted towards the total period of sentence.
B
In Sunil Fulchand Shah (supra), the Constitution Bench by a majority
after considering various dictionary meaning of the word 'Parole' held that
the action for grant of paro1e, generally speaking is an administrative action
and in paragraph 27 of the judgment it was held that parole is a form of
temporary release from cw,tody, which does not suspend the sentence of the C
period of detention, but provides conditional release from the custody and
changes the mode of undergoing the sentence. However, in paragraph 30 of
the judgment the above position of parole was further clarified as follows:-
" ., ...... Since release on parole is 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 D
total period of detention unless the rules, instructions or terms of grant of
parole, prescribe otherwise.'' (emphasis supplied)

In the same paragraph the Bench also held that '. .... .the period of
ddention would not stand automatically extended by any period of parole
grankd to the detenu unless the order uf parole or rules or instructions E
specifically indicates as a lerm unJ condition of parole, lo the cunlrary'.
(emphasis ours)

Parole is essentially an executive function and now it has become an
integral part of our justice delivery system as has been recognised by Courts.
F
Though, the case of Sunil f'ulchand Shah (supra) was a case of preventive
detention, we are of the opinion that the same principle would also apply in
the case of punitive detention.

Thus, the Constitution Bench by majority decision clearly held that the
period of kmporary release of a prisoner on parole is to be counted towards G
the total period of detention, unless it is otherwise provided by legislative
Act, Rules, instructions or terms of the grant of parole.

Under Section 3 of the Act, the State Government can temporarily
release a prisoner for a specified period ifthe Government is satisfied that (i)
any member of his family had died or seriously ill or the prisoner himself is H
1088 SUPREME COURT REPORTS (2002] I S.C.R.

A seriously ill or (ii) marriage of himself, his son, daughter, etc. is to be celebrated
or (iii) such release is necessary for ploughing, sowing or harvesting or
carrying on any other agricultural operation on his land or his father's
undivided land actually in possession of the prisoner or (iv) is desirable to do
so for any other sufficient cause. The period of release is to be determined
B by the State Government in accordance with sub-section (2) and sub-section
(3) provides that period of release under this section shall not be counted
towards the total period of sentence of prisoner. Under Section 4 a prisoner
who has been sentenced to a term of imprisonment of not less than 4 years
cannot be temporarily released on furlough unless he has undergone continuous
imprisonment for a period of 3 years and has not committed any jail offence
C (except an offrnce punished by a warning) and has also earned at least three
annual good conduct remissions. This section also provides that the benefit
of furlough cannot be granted to the class of prisoners m~ntioned in proviso
to sub-section (I). The period of such temporary release has been fixed in
sub-section (2). It is specifically provided in sub-section (3) that period of
temporary release on furlough shall be counted towards total period of sentence
D undergone by a prisoner.

Thus, the legislature for the purpose of temporary release has created
two classes of prisoners. If we compare these two sections, we find that
conditions of temporary release on furlough under Section 4 is more rigorous
and a prisoner shall not be entitled to such temporary release unless he
E fulfills the conditions laid down in the said section. But in Section 3 no :.uch
rigorous condition has been ;mposed and only the circumstances under which
the temporary release can be granted have been stated. Moreowr certain
classes of prisoners cannot get the benefit of furlough.

Before a Constitution Bench of this Court in Sunil Batra v. Delhi
F Adminiscration and Ors. etc. and Charles Gurmukh Sobraj v. Delhi
Administration and Ors.. [1978] AIR SC 1675 = 1979 SCR I 392, Section
30 of the Prisons Act came up for consideration. The said ;ection runs as
follows:-

"30. (I) Every prisoner under sentence of death shall, immediately on
G
his arrival in the pnson after sentence, be searched by, or by order of, the
Jailor and all articles shall be taken from which the Jailor deems it dangerous
or inexpedient to leave in his possession.

(2) Every such prisoner shall be confined in a cell apart from all other
H prisoners, and shall be placed by day and by night un~er the charge
AVT AR SING! Iv. ST ATE OF HAR 't' ANA [PHUKAN. J.] 1089
of a guard." A
The gravamen of the argument in that case was that sub-section (2)
dot:s not authorise the pnson authorities in the garb of securing a prisoner
under sentence of death, to confine him in a cell apart from other prisoners
by imposing solitary confinement upon him. This argument was rejected and
it was held that it was hardly be questioned that prisoners under sentence of B
death form a separate class and their separate classification has to be
recognised.

This Court in State uf flaryana and Ors. v. Mohinder Singh and Ors.,
[2000] 3 sec 394 held that 'furlough' and 'parole" are two distinct tenns
now being used in the Jail Manuals or laws relating to temporary release of c
prisoners. In Sunil Batra (supra), the Constitution Bench has given recognition
of creation of a separate class of prisoners undc15oing death sentence. Section
3 has been enacted to meet the urgent pressing personal problem of a prisoner.
As noted above, under this section any prisoner irrespective of his period of
sentence or detention can be released on parole to meet such problem, whereas D
the condition for releasing a prisoner on furlough under Section 4 is rigorous
and such release on furlough cannot be claimed by certain classes of prisoners
as mentioned in the section. On close look at both the sections it would
• appear that these sections operate on different fields. Section 3 has been
t:nacted to meet certain situation of the prisoner but Section 4 has been
enacted as a rt'formatiw measures as a prisoner has to show good conduct E
while in incarceration. In our considered opinion this classification is based
on rational criteria and cannot be said to be discriminatory in nature. We.
therefore. find no force in the first contention of the learned counsel for the
appeilant.

The second cont.:ntion of the learned counsel for the appellant has also F
to be r.:jected in view of the decision of this Court in Sunil Fulchand Shah
(supra). The Constitution Bench has clearly held that though ordinarily the
period of temporary release of a prisoner on parole needs to be counted
towards the total period of detention but this condition can be curtailed by
legislative act, rules. instructions or terms of grant of parole. G
We also do not find force in the contention of the learned counsel for
the appellant that sub-section (3) of Section 3 of the Act is hit by Article 21
of the Constitution. By a valid legislative act the penod of temporary release
on parole has been denied while counting the actual sentence undergone by
the prisoner. It cannot be said that such right of a prisoner has been taken H
1090 SUPREME COURT REPORTS [2002] I S.C.R.

A away without due process of law. Consequently, these contentions of the
learned counsel for the appellant are rejected.

We, therefore, find no merit in the appeal as well as in the writ petition ..
and consequently both the appeal and the writ petition are dismissed.

B S.V.K. Appeal and Petition dismissed.

•