Gujarat High CourtChimanrao Baberao Father Of Prisoner ... vs State Of Gujarat And Ors. on 5 December, 1984Equivalent citations: (1985)1GLR452Author:S.B. MajmudarBench:S.B. MajmudarJUDGMENT
 

S.B. Majmudar, J.1. These two special criminal applications were ordered to be placed before the Full Bench of this Court as it was felt that the decision rendered by the Division Bench of this Court in Spl. Cr. Application No. 756 of 1983, decided by A.M. Ahmadi & M.B. Shah, J J. on 20th June, 1983 required reconsideration in the light of a later Full Bench judgment of this Court, in the case of Nalia Jiria v. Slate of Gujarat and Ors. XXV (I) GLR 464. That is how these two petitions reached before us for hearing on 26th November, 1984. The petitioners moved these applications through jail as they are undergoing different sentences of imprisonment. Mr. D.K. Trivedi, learned counsel, appeared for the respondents. We ordered Rules to be issued in these two special criminal applications. Mr. Trivedi, learned Asst. Public Prosecutor waived service of the Rules. We have heard him finally on the merits of these applications.2. In order to appreciate the common points involved in these two applications, it is necessary to quickly glance through the relevant facts leading lo these applications. In special criminal application No. 653 of 1984, the prisoner Dattarao Chimanrao is undergoing sentence of life imprisonment in Baroda Central Jail. The petitioner, Chimanrao Baberao Jadav. is the father of the prisoner. He states that his son, the convict, has applied to the Additional District Magistrate, Baroda to grant him parole leave and accordingly the said officer has sanctioned him 30 days' parole leave. However, the petitioner is not in a position to get his son released by making a deposit of Rs. 500/- as ordered. The petitioner is an old man getting pension of Rs. 200/- per month and he has to maintain grown up and small six members of his family and he finds it difficult to make both ends meet. He is therefore, not in a position to make a deposit of Rs. 500/- in the jail. He therefore, requests this Court to direct the authorities to release his son on parole leave on personal bond. It is obvious that the petitioner is not in a position to furnish any surety bond.3. So far as the petitioner in special criminal application No. 663 of 1984 is concerned, he is undergoing life imprisonment in Baroda Central Jail. The competent authority has granted him parole leave for 15 days, but the petitioner is not in a position to avail of that leave on account of the fact that he is not in a position to furnish security of Rs. 500/- and he requests the intervention of this Court for issuance of suitable direction to the competent authority to release the petitioner on parole leave on personal bond. It is obvious that this petitioner is also not in a position to furnish any surety bond. It is submitted on behalf of the competent authority that as per the Prisoners (Bombay Furlough and Parole) Rules, 1959 (hereinafter referred to as 'the Rules') it is not possible for the competent authority to release the concerned petitioners on parole on personal bond without insisting upon their furnishing either cash security of Rs. 500/- or a surety bond to that effect, from any solvent surety. It is submitted on behalf of the respondents that the Division Bench of this Court, in special criminal application No. 756 of 1983, decided on 20th June, 1983, while interpreting Rule 24 of the Rules has held that the prisoner can be granted parole leave on his executing a surety bond in the sum of Rs. 500/- over and above his own personal bond and that if he is not in a position to execute the surety bond, he may be permitted to deposit an amount of cash security. The said judgment, as noted earlier, is rendered by the Division Bench consisting of A.M. Ahmadi and M.B. Shah, JJ.4. The aforesaid contention raised on behalf of the respondents placing reliance upon the aforesaid Division Bench judgment of this Court necessitates a look at the relevant rules governing the procedure for releasing the prisoners on parole. The concerned rules were framed by the then State of Bombay in exercise of the powers conferred by Clauses (5) and (28) ofSection 29of the Prisons Act, 1894. It is not in dispute that these rules have continued to apply even after the formation of the State of Gujarat on bifurcation of the bigger bilingual State of Bombay. Rule 18 of the Rules indicates the authorities competent to sanction parole. Rule 19 provides that a prisoner may be released on parole for such period as the Competent Authority referred to in Rule 18 in its discretion may order, in case of serious illness, or death of any member of the prisoner's family or of his nearest relative or for any other sufficient cause. Rule 20 provides that the period spent on parole is not to be counted as remission of the sentence, while as per Rule 21 a prisoner can be granted parole either on his own application or on an application made by his relatives or friends, or legal adviser. Rule 22 deals with the procedure for dealing with the parole applications and Rule 23 provides for inquiries to be made on receipt of the applications. Then follows Rule 24 which is relevant for our present purpose. Hence, it is reproduced in extenso as under:24. Conditions subject to which prisoners may be granted parole. - The Competent Authority may grant parole to a prisoner subject to his executing a surety bond and a personal bond in Forms A and B respectively to observe all or any of the conditions mentioned therein and also subject to such other conditions, if any, as may be specified by the Competent Authority:Provided, that when prisoners convicted of serious offences are released on parole, a condition shall be included in the parole order directing or requiring the prisoner to report at the Police Station nearest to the place where he intends to spend his parole initially on his reaching such place and thereafter once or twice a week at such intervals as may be considered expedient:Provided further that when a prisoner applies for parole for the purpose of appearing at an examination he will not be eligible to be released on parole unless the Inspector General of Prisons has passed an order permitting him to appear at such examination.Now a mere look at the aforesaid rules shows that the competent authority can grant parole to a prisoner subject to his executing a surety bond and a personal bond in Forms A and B respectively. Form A is the proforma of the surety bond which can be got furnished by the prisoner as per Rules 6, 10 and 24. Rules 6 and 10 deal with grant of furlough to the concerned prisoner. Thus if surety bond is to be furnished by a prisoner who is either released on furlough or on parole, the proforma of such a surety bond will be one and the same. So far as Form B is concerned, it is a profoma for personal bond which has to be executed by the concerned prisoner who is either granted furlough leave under Rule 7 or parole leave as per Rule 24. The proforma for the personal bond, Form B, is common as per requirements of both the Rules 7 and 24. A literal reading of the aforesaid Rule 24, no doubt, indicates that before a prisoner can be released on parole leave, he has not only to execute a personal bond in Form B but also a surety bond in Form A. The words used in the rule are "subject to his executing a surety bond and a personal bond in Forms A and B respectively." The Division Bench of this Court in Special Criminal Application No. 756 of 1983 read literally the Rule 24 and observed as under :The underlined word "and" suggests that the prisoner can be released on parole on his executing not only a personal bond but also a surety bond. Unlike in the case of furlough (Rule 10) there is no provision for giving case security. In the instant case the complaint is that cash surety bond of Rs. 500/- is insisted upon." Now it is obvious that if Rule 24 is read in the literal manner in which the Division Bench read the same, the said conclusion would follow. The aforesaid decision of the Division Bench of this Court will have to be re-examined in the light of the later Full Bench decision of this Court in the case of NatiaJiria v. Stale of Gujarat and Ors. XXV (1) GLR464, In that case the Full Bench of this Court speaking through one of us, P.S. Poti, C.J. in terms held that a prisoner can be granted furlough leave in an appropriate case only on his executing a personal bond and the requirement of Rule 10 read with Rule 7 that he should also execute a surety-bond or give cash security can be dispensed with. This decision was rendered in the light of the words "if so required" as employed in Rule 10 of the rules. In coming to the aforesaid conclusion the Full Bench made the following pertinent observation:Poverty is no crime. Even so property oriented approach in statutory provisions often results in a poor man being prized out of justice. The acuteness of extreme poverty could be best understood only by experiencing it. The plight of impecunious in all its severity may not be fully realised even by an enlightened class engaged in statute and rule making. Whatever may be said of the legislations prior to the Constitution, in an egalitarian society where justice is promised to the poor and the rich alike, there is no scope for a law which virtually keeps out a penurious person from the benefit of the law or puts him to the penalty of a provision for reason of his impecuniousness. If an instance or illustration of this situation is necessary to convincingly project the point sought to be made out here, there could be no better case than the one now before us. A surety bond for Rs. 100/- is by any standard a nominal surety bond and one cannot think of a surety bond for any lesser sum. If there is insistence by law on the furnishing of a surety bond any compassionate and understanding authority cannot stipulate better than to require a surety bond of Rs. 100/-. But, even so there may be many in this country who will not be able to take advantage of a right to free air conferred on him to be availed of on furnishing such a surety bond merely for the reason that he is enable to get anyone to stand surety for him in a bond of Rs, 100/-. Should he forfeit his right for that reason is the question.The Full Bench then noticed Rule 10 of the rules which reads as under:Rule 10. Conditions of release: The Sanctioning Authority shall grant furlough to a prisoner subject to his executing a personal bond or giving cash security in Form C appended to these rules, and also subject to a surety executing a bond, in Form A appended to these rules, if so required. The release may further be subject to all or any of the following conditions:(1) that the said prisoner shall reside at Taluka in.... the.... District/Greater Bombay during the period of release on furlough and shall not go beyond the limits of the said District/Greater Bombay without the permission of the District Magistrate/Commissioner of Police. Greater Bombay, or such Officer as the said District Magistrate/Commissioner of Police may appoint in this behalf.(2) that the said prisoner shall be of good behaviour and shall not commit any offence punishable by or under any law in force in India;(3) that the said prisoner shall not associate with bad characters or lend a dissolute life;(4) that the said prisoner shall, in case he proposes to change his religion during the period of furlough, give a minimum of seven days' prior intimation to the said District Magistrate/Commissioner of Police as also the Superintendent of Prison from which he has been released, about such intention, and he shall also furnish them with information regarding the new religion and the new name, it any, which he proposes to adopt;(5) that the said prisoner will surrender himself to the Superintendent of the Prison from which he was released on the expiry of the period of furlough.(6) that the said prisoner will report once a day to the Officer-in-charge ( ) Police Station during the period of furlough,
 

or
 

that the said prisoner shall, immediately on arrival at the place mentioned in (1) above, report at the Police Station nearest to the said place, and thereafter.Interpreting Rule 10 the Full Bench held as under:Rule 10, it may be noticed, qualifies the conditions under which the sanctioning authority is to grant furlough by the words if so required". This is quite significant and evidently the relevance of this was not brought to the notice of the learned Judges of the Division Bench on the earlier occasion. The words "if so required" cast a duty and obligation on the sanctioning authority to consider whether the case requires waiver of the insistence on the exception of a surety bond. The appropriate justification for such waiver would be where, as in this case, a person is, by reason of his penury and his absence of influence in society, unable to furnish a surety bond. As Krishna Iyer, J. said, though in a different context, in the context 0f bail,Moti Ram and Ors. v. State of Madhya PradeshAIR 1978 SC l954 "affluents do not befriend indigents". Hence Rule 10 has to be read and understood as justifying the sanctioning authority in waiving the insistence upon a surety bond in cases such as that of the prisoner here.In the view we take of the rule it may not be necessary to consider the validity of the rule and may not even have to read down the rule. Had we been called upon to do so we would have derived support in our attempt to a considerable extent in the following observations of Bhagwati, J. of course spoken again in a different context, in the context of bail, inHussainara Khatoon and Ors. v. Home Secretary State of Biharof the judgment the learned Judge said:3. Now, one reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pre-trial detention is our highly unsatisfactory bail system. It suffers from a property oriented approach which seems to proceed on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. TheCode of Criminal Procedure, even after its renactment. continues to adopt the same antiquated approach as the earlier Code enacted towards the end of the last century and where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial. Moreover, as if this were not sufficient different to the poor, the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay up the amount of the bail in case the accused fails to appear to answer the charge. This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount-of bail fixed by the courts is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such lime as the court is able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life (2) they are prevented from contributing to the preparation of their defence, and (3) they lose their job, if they have one and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. It is here that poor find our legal and judicial system oppressive and heavily weighted against them and a feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of inequality with the non-poor.5. Now it is obvious that in view of the aforesaid Full Bench decision which is a later decision the ratio of the decision of the Division Bench in Special Criminal Application No. 756 of 1983 has to be re-examined. So far as Rule 24 of the rules is concerned, it by itself does not refer to Rule 10. On the language of Rule 24, the Division Bench found that there was no room available for dispensing with the requirement of furnishing surety bond or cash security and only requiring the execution of personal bond by the convict before being released on parole. However, the applicability of Rule 10 in such cases is not ruled out at all as we shall presently see Rule 28 of the rules reads as under:28. Application of certain rules to parole cases - The provisions of Rules 8(5), 10, 11 and 12 shall mutatis mutandis apply in the case of release of prisoners on parole.It is, therefore, clear that when Rule 24 is read with Rule 26, the provisions of Rule 10 also automatically get attracted to parole cases. So far as Rule 10 is concerned, the Full Bench in the aforesaid decision in terms held that in suitable cases, the competent authority can release a prisoner on his executing only personal bond. If that is so, the same latitude of Rule 10 gets automatically attracted to parole cases via Rule 28. Unfortunately, Rule 28 was not noticed by the Division Bench in the aforesaid case in Special Criminal Application No. 756 of 1983 and hence the Division Bench felt constrained to observe that in every case, the prisoner before being released on parole has to execute in addition to his personal bond a surety bond or he may be called upon to deposit cash security. Once it is held that Rule 10 also applies to parole cases, the ratio of the decision of the Full Bench of this Court squarely gets attracted to such cases. It must, therefore, be held that in suitable cases, the competent authority will have not only the power but even the duty to release the convict on personal bond once it is found at the concerned convict is in such a helpless condition that he cannot get a surety to stand for him and he has no money to give cash security. It must be kept in view that whether a convict is released on furlough or on parole, he is granted a temporary leave to go out of incarceration with a condition that he should return moment the period of leave is over, to the four walls of the prison, where he has to serve out the rest of his sentence. The insistence for surety bond or cash security is with a view to seeing that there is sufficient sanction imposed on him so that he may promptly return to the jail after his leave period, either of furlough or of parole, is over. Thus, the object of getting executed the surety bond or insistence for cash security is to secure reappearance of the convict. Under these circumstances, whether he is released on parole or on furlough, the rationale underlying the insistence of a surety bond or cash security in addition to the personal bond of the convict would remain the same. For getting the furlough leave a prisoner has to execute a surety bond under Rule 6 and a personal bond under Rule 7. For being released on parole leave, he has normally to fulfil both these requirements aslaid down byRule 24. However, as held by the Full Bench of this court, the strict requirement of Rule 6 can be waived in suitable cases, by reading Rule 6 in the light of Rule 10. If that is so, there is no reason why the requirement of furnishing the surety bond by the convict for being released on parole as per Rule 24 cannot be dispensed within suitable cases on a combined reading of Rule 24 and Rule 10 via Rule 28. In our view, therefore, the ratio of the decision of the Full Bench in Natia Jiria (supra) squarely applies even to parole cases.6. Under these circumstances, it is not necessary for us to examine the alternative situation as to whether in the absence of such a latitude being available to the prisoner in suitable cases, the strict insistence for the compliance of both the requirements of Rule 24 for being released on parole, as assumed by the Division Bench in the aforesaid decision would render the rule arbitrary and would make it vulnerable on the touch stone ofArticles 14and21of the Constitution of India. We would have been required to go into this question if the beneficial provisions of Rule 10 were not available to the convict seeking release on parole leave. As seen above, the beneficial provisions of Rule 10 as interpreted by the Full Bench are applicable even to parole cases and hence, we are not required to undertake the exercise of reading down Rule 24 and in reading the word 'and' as 'or' in suitable cases of extreme penury and helplessness of the concerned convict who cannot get a surety to stand for him and who has no money to offer cash security so that the rule may not get treated as arbitrary in such cases. If at all such a situation would have arisen we would have unhesitatingly suitably read down Rule 24 so that in appropriate cases the word 'and' which is used as a conjunctive in the sentence "his executing surety bond and a personal bond in Forms A and B respectively," could be read as 'or' meaning thereby that the rule would have been read down as requiring the concerned convict who has to be released on parole to either execute a surety bond or a personal bond and not necessarily both. It is now well settled that in propel cases, the court interpreting the provisions of a statute can, if the context of the setting of the statute require, read the word 'and' as 'or' and vice versa, in the case of Jshwar Singh Bindra and Others v. State of U.P.  Grover, J. speaking for the Supreme Court read the word 'and' as employed in the definition of 'drug' contained inSection 3(b)of the Drugs Act. 1940 as 'or'. As per the said provision the term 'drug' was defined as under:all medicines for internal or external use of human beings or animals and all substances intended to be used for or (in the diagnosis, treatment), mitigation or prevention of disease in human beings or animals other than medicines and substances exclusively used or prepared for use in accordance with the Ayurvedic or Unani systems of medicine.7. The conjunctive 'and' between the words 'medicines, etc.' and 'all substances etc.' was read as 'or'. In that connection, Graver, J. made the following observations in para 11 of the report :Now if the expression 'substances' is to be taken to mean something other than stand how the word 'and' as used in the definition of drug inSection 3(b)(l)between 'medicines' and 'substances' could have been intended to have been used conjuncmedicines" and "substances" could have been intended to have been used conjunctively. It should be much more appropriate in the context to read it disconjunctively. In Straud's Judicial Dictionary 3rd Edi. it is stated at page 135 that "and has generally a cumulative sense, requiring the fulfilment of all the conditions that it joins together, and herein it is the antithesis of or. Sometimes, however, even in such a connection, it is, by force of a context, read as 'or'. Similarly, in Maxwell on Interpretation of Statutes 11th Edi. it has been accepted that "to carry out the intention of the legislature it is occasionally, found necessary to read the conjunctions 'or' and 'and' one for the other.8. In view of the aforesaid settled legal position, we would nave been justified in riding the conjunctive 'and' in Rule 24 as disconjunctive 'or' if Rule 10 had not come to the succour of Rule 24. In the absence of the beneficial provisions of Rule 10 being available to suitably reduce the rigor of Rule 24, we would have been required to read down Rule 24 as aforesaid, with a view to seeing that Rule 24 does not succumb on anvil ofArticle 14of the Constitution of India, in the settings of peculiar facts of such hard cases. However, the said exercise is spared to us in the facts and circumstances of the case. As a result of the aforesaid discussion, it must be held, with greatest respect, that the decision of the Division Bench of this Court in Special Criminal Application No. 756 of 1983 does not lay down the correct legal position. It has to be accepted that in suitable cases, the competent authority has power albeit duty to release the concerned convict on parole on his executing only personal bond if it is found on facts that he is in such a poor and helpless condition that there is no one to stand as surety for him and he has no money or wherewithal to furnish any cash security may be of a very small amount, in addition to his personal bond.9. On the facts of the present case, it is obvious that both these prisoners belong to such a helpless category of persons who on account of their penury are not in a position to either give a solvent security or a cash security. Hence, they are entitled to be released only on personal bonds. The respondents are accordingly directed to release these two prisoners on parole leave as already granted to them on their executing personal bonds only with other usual conditions. Rules issued in both these applications are made absolute accordingly.