A division bench of Rajasthan High Court in a recent reportable judgment dismissing a large number of writ petitions held
"It is only on the conclusion of the judicial function that the other executive function by way of releasing the accused on parole, etc. are to be exercised. The executive powers of the State deals with a situation in which pendency of appeal is not envisaged whereas in the case of the powers of the courts, pendency of an appeal is postulated. The powers of the State deals with generally whereas that of the judiciary are special, as after awarding of sentence an appeal is pending before the appellate court.
Such powers cannot be put into action simultaneously, otherwise it would bring about a conflict of jurisdiction between the two, namely the judiciary and the executive. Therefore, the powers assumed to itself by the State Government under the parole rules cannot be exercised so long as an appeal by a convicted person is pending and the judicial function is not complete. Parole relates to executive action taken after the door of judicial function is closed for a convict. The parole rules cannot stultify the judicial process and even in emergent circumstances, the court would grant the relief under Section 389 Cr.P.C. to a convict in a deserving case. So long as the judiciary has the power to pass an order in a pending case, the power of the executive is limited in view of the Code of Criminal Procedure as well as the Constitution."
