Bombay High Court
Satish S/O. Shankarrao Shinde vs The State Of Maharashtra And Others on 15 January, 2019
Author: S.S. Shinde
Bench: S.S. Shinde, R.G. Avachat
cwp1789.18
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1789 OF 2018
Satish s/o Shankarrao Shinde,
Age-47 years, Occu:Nil Convict No.6325,
R/o-At Present in Central Prison,
Aurangabad, Dist-Aurangabad.
...PETITIONER
VERSUS
1) The State of Maharashtra,
Through Secretary Home Department,
Mantralaya, Mumbai,
2) The Divisional Commissioner,
Aurangabad,
3) The Superintendent of
Central Prison,
Aurangabad.
...RESPONDENTS
...
Mrs. Bharati B. Gunjal Advocate for Petitioner.
Mr.S.B. Joshi, A.P.P. for Respondent Nos.1 to 3.
...
CORAM: S.S. SHINDE AND
R.G. AVACHAT, JJ.
DATE OF RESERVING ORDER : 08TH JANUARY, 2019 DATE OF PRONOUNCING ORDER : 15TH JANUARY, 2019 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 2 ORDER [PER S.S. SHINDE, J.]:
1. This Petition under Article 226 and 227 of the Constitution of India, has been filed with following substantive prayers:
"B] By issuing appropriate writ or direction in like nature the order passed by the Respondent No.2 [i.e. Divisional Commissioner Aurangabad] dated 17-10-2018 may kindly be quashed and set aside [Exh."C"].
C] By issuing appropriate writ or direction in like nature the amended sub rule (2) (c) of rule 19 of Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment) Rules, 2018 may be struck of and same may kindly be declared as unconstitutional [Exh."G"].
D] By issuing appropriate writ or direction in like nature the Respondent No.2 [i.e. Divisional Commissioner Aurangabad] be directed to reconsider the proposal ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 3 forwarded by the Respondent No.3 [i.e. Superintendent Central Prison, Aurangabad] dated 08-08-2018 (6/8/2018) Exh.A. E) By issuing appropriate writ or direction in like nature the Respondent No.3 [ i.e. Superintendent Central Prison, Aurangabad] may kindly be directed to release the Petitioner on Parole Leave for 45 days forthwith."
2. Learned counsel appearing for the Petitioner submits that the Petitioner was convicted by the Additional Sessions Judge, Latur and sentenced to suffer an imprisonment for life under Section 302 and 309 of the Indian Penal Code, on 18th December, 1999. It is submitted that due to serious illness of sister of the Petitioner, he filed application for parole through Superintendent of Central Prison, Aurangabad to the Divisional Commissioner, Aurangabad on 2nd August, 2018. Thereafter, the Divisional Commissioner, Aurangabad had called the ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 4 police report from the concerned police station. It is submitted that the police report submitted by Lohara police station is favourable to the Petitioner. In the said police report it is specifically mentioned that, statement of medical officer discloses that he has issued medical certificate about serious illness. In police report it is further mentioned that sister of the Petitioner is suffering from Asthma and high blood pressure and she has no one except the Petitioner who can take care of her. So far as the behaviour of the Petitioner, it is mentioned in the police report that though the Petitioner was late on earlier occasion, his conduct was good and therefore the friend of the Petitioner has agreed to take surety. It is submitted that, relying upon the said police report, the Sub Divisional Officer, Omerga, had sent a letter dated 25th September, 2018 to the Divisional Commissioner, Aurangabad, stating therein that, leave sought by ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 5 the Petitioner is on real aspect and by imposing condition with an assurance to surrender within time, there is no objection to release the Petitioner on parole leave.
3. Learned counsel further submits that relying upon the proposal forwarded by the Superintendent of Central Prison, Aurangabad and after going through the police report, the Divisional Commissioner, Aurangabad has wrongly rejected the application of the Petitioner on 17th October, 2018, on the ground that on earlier two occasions i.e. in 2006 when the Petitioner was on parole leave, he overstayed for 802 days and in the year 2012, when Petitioner was released on furlough leave, at that time also he overstayed for 580 days, and as the Superintendent of Central Prison has not recommended the case of the Petitioner therefore, under the provisions of Rule 19 of the Prisons (Bombay Furlough and Parole) ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 6 Rules, 1959, and under Rule 4(1) and 19(2)(c) of Maharashtra Prisons (Mumbai Furlough and Parole Leave) (Amendment) Rules, 2018, dated 16th April, 2018, the Petitioner is not entitled to be released on parole leave.
4. Learned counsel submits that for an overstayed period, the Petitioner has been punished by removing his name from remission register and since last five years his five applications for parole leave, four applications for furlough leave and one application for emergency parole leave came to be rejected on the same grounds. Learned counsel submits that when the police report is favourable to the Petitioner, his application for parole ought to have been allowed. In support of her submissions, learned counsel placed reliance upon the order passed by the Division Bench of this Court (CORAM: S.S. SHINDE AND K.K. SONAWANE, JJ.) in the case of ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 7 Dattu s/o Shahaji Yamgar vs. State of Maharashtra (Criminal Writ Petition No.549 of 2017), dated 3rd May, 2017, wherein this Court has observed that, if the favourable police report is there and the responsible surety holder is ready to take the surety, then the prisoner ought to have been released on furlough leave.
5. Learned counsel, referring to the names of nine convicts as mentioned in Page No.7 of the Petition, submits that Respondent No.2 has made discrimination between the Petitioner and other prisoners who were also overstayed for two times but their leave was sanctioned by Respondent No.2 and the said prisoners have been released on the ground of favourable police report. It is submitted that the order passed by Respondent No.2
- Divisional Commissioner, is not legal and proper. Respondent No.2 has not considered the fact that the application of the Petitioner is ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 8 maintainable as sister of the Petitioner is living in his family as she has no one else than the Petitioner to take care of and sister of the Petitioner is seriously ill. It is further submitted that till today the Petitioner has undergone near about 14 years of imprisonment and during the said period no complaint has been registered against him and considering the said aspect and over all behaviour of the Petitioner, the Superintendent of Central Prison, Aurangabad has issued good conduct certificate to him on 8th May, 2018.
6. Learned counsel further submits that for the purposes of releasing the prisoners, the State has framed the rules for prisoners i.e. the Prisons (Bombay Furlough and Parole) Rules, 1959. The aim and object of framing such rules was that the prisoner should not be deprived of his civil liberties. By Government Notification dated 16th ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 9 April, 2018, the State of Maharashtra has sought amendment in the said Rules and amended sub-rule (2)(a) of Rule 19 has been introduced, which provides that, all the prisoners eligible for furlough shall be eligible for regular parole for serious illness of father, mother, spouse, son and daughter. Learned counsel submits that the Petitioner is challenging the validity of amended sub Rule (2)(a) of Principal Rule 19 of the Rules of 1959, as the same is illegal, arbitrary and violative of Article 14, 21 of the Constitution of India. It is submitted that the said amendment is liable to be quashed and set aside as it basically changes nature, preamble and intention of Rule. The added sub-rule (2)(a) of Rule 19 of the Rules of 1959, is arbitrary and ultra vires as there is no justification for deleting the word 'for nearest relatives' and it defeats the rights of the prisoners. Added sub rule (2)(a) in Rule 19 of the Rules of 1959, suffers from arbitrariness. ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 :::
cwp1789.18 10 Every arbitrary action or inaction amounts to violation of Article 14 of the Constitution of India.
7. Learned counsel submits that as the sister of the Petitioner is seriously ill and there is no one in the family to take care of her, the Petitioner be released on parole leave. Hence, learned counsel prayed that the Writ Petition may be allowed.
8. On the other hand, learned A.P.P. appearing for the State, relying upon the averments in the affidavit in reply filed on behalf of Respondent No.2, submits that the case of the Petitioner for parole leave is not recommended by the Superintendent, Central Prison, Aurangabad on the ground that on earlier two occasions when the Petitioner was released on parole leave, after expiry of said period the ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 11 Petitioner did not surrender to the jail authorities and he was required to be arrested by the police. It is submitted that earlier when the Petitioner was released on parole on 3rd October, 2006, he did not report back on completion of period of parole and overstayed for 802 days and he was required to be arrested by the police and brought back to the jail. Thereafter again in January, 2012, when Petitioner was released on parole, he overstayed for 580 days and that time also he was required to be arrested and brought back to the jail. Thus, the Petitioner was absconding for about 1382 days and on both occasions he did not surrender on his own and was required to be arrested and presented in jail.
9. Referring to the provisions of amended sub rule (2)(a) of Rule 19 of the Rules of 1959, learned A.P.P. submits that the application of the Petitioner for releasing him on parole leave has ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 12 been rightly rejected by the Divisional Commissioner, as the Petitioner has requested to release him on parole on the ground of serious illness of his sister, and the said Rule provides that prisoners shall be eligible for regular parole for serious illness of his/her father, mother, spouse, son and daughter only. Referring to the provisions of Rule 4(10) of the Notification dated 16th April, 2018, issued by Home Department, Government of Maharashtra, learned A.P.P. submits that the prisoners who have defaulted in any way in surrendering themselves at the appropriate time after their release on parole or furlough, are not entitled to be released on parole or furlough, as the case may be. It is submitted that as the Petitioner did not report back to the jail authorities after completion of parole when on earlier two occasions he was released on parole, the Petitioner is not entitled to be released on parole. Learned A.P.P. further ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 13 submits that after considering the proposal of Superintendent, Central Prison, Aurangabad, past record of the Petitioner, and after considering the Rules of 1959 as amended on 18 th April, 2018, the Divisional Commissioner has rightly rejected the application of the Petitioner to release him on parole.
10. We have considered the rival submissions. With the assistance of learned counsel appearing for the Petitioner and learned A.P.P. appearing for the State, we have carefully perused the grounds raised in the Petition, annexures thereto and reply filed on behalf of Respondent No.2. We have also carefully perused the impugned order passed by the Divisional Commissioner, Aurangabad. The Divisional Commissioner, Aurangabad has rejected the application of the Petitioner to release him on parole, mainly on two grounds, firstly, earlier when on two occasions, the ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 14 Petitioner was released on parole, he did not report back to the jail authorities within the prescribed time and absconded, and was required to be arrested, and secondly, on the ground of illness of sister, parole cannot be granted.
11. Along-with its reply, the Respondents have placed on record a chart showing the details when earlier Petitioner was released on parole/ furlough and when he reported back to the jail authorities. The said chart shows that earlier when Petitioner was released on parole on 3rd October, 2006, he did not report back to the jail authorities on his own after expiry of the said period and overstayed for 802 days, and he was required to be arrested by the police and brought back to the jail. Again on 12 th January, 2012, when the Petitioner was released on parole leave, he overstayed for 580 days and was required to be arrested and brought back to the jail. Therefore, ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 15 relying upon the provisions of Rule 4(10) of the Notification dated 16th April, 2018 issued by Home Department, Government of Maharashtra, the Divisional Commissioner has rightly rejected the application of the Petitioner seeking parole leave. Rule 4(10) of the Notification dated 16th April, 2018 by which Rules of 1959 are amended, reads as under:
"4. Eligibility for furlough:- All Indian prisoners except from following categories whose annual conduct reports are good shall be eligible for furlough:-
(10) Prisoners who have at any time escaped or attempted to escape from lawful custody or have defaulted in any way in surrendering themselves at the appropriate time after release on parole or furlough."
12. Admittedly, the Petitioner when earlier released on parole, on two occasions he did not report back to the jail authorities after expiry ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 16 of the parole and he was required to be arrested. In all the Petitioner was unauthorizedly out of the jail for 1382 days and therefore his application was rightly rejected by the Divisional Commissioner.
13. The reliance placed by the counsel appearing for the Petitioner upon unreported Judgment in the case of Dattu s/o Shahaji Yamgar vs. the State of Maharashtra and another (Criminal Writ Petition No.549 of 2017 decided on 3rd May, 2017), cited supra, is misplaced in the facts of the present case. The facts of the present case vis-a-vis the facts of the case cited supra are not similar, as in the said case during the police inquiry, statements of four persons were recorded, who were eye witnesses during the trial.
14. Learned counsel appearing for the Petitioner submits that as the sister of the ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 17 Petitioner is seriously ill and there is no one in the family to take her care, the Petitioner may be released on parole. In this respect it would be apt to refer to the provisions of sub rule (2)- a of Rule 19 of the Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment) Rules, 1959, which came into force by the Notification dated 16th April, 2018, issued by the Home Department, Government of Maharashtra. Sub rule (2)- a of Rule 19 of the amended Rules of 1959 reads as under:
(2) Regular Parole- All the prisoners eligible for furlough shall be eligible for regular parole for following reasons:-
a. Serious illness of father/ mother/spouse/son/daughter."
15. Admittedly, the Petitioner has prayed to release him on parole, on the ground of serious illness of his sister and in view of the ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 18 aforesaid rule, there is no provision to seek parole on the ground of ailment of sister.
16. Learned counsel appearing for the Petitioner has also challenged the vires of sub rule 2- a of Rule 19 of the amended Rules of 1959.
In our considered opinion, the Government of Maharashtra, after considering the entire aspects of the matter, has taken a policy decision to introduce the Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment) Rules, 2018, and the rules are suitably amended in respect of release of the prisoners on parole and furlough. Therefore, we do not find any substance in the said contentions raised by the counsel appearing for the Petitioner.
17. In view of the discussion made herein above, we are not inclined to exercise our discretion in favour of the Petitioner and give ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 ::: cwp1789.18 19 direction to the Respondents to release the Petitioner on parole. Hence the Criminal Writ Petition is rejected.
18. However, we make it clear that rejection of this Petition shall not be construed as an impediment to the Petitioner to apply in future for parole/furlough, as the case may be, in case there are genuine grounds.
[R.G. AVACHAT, J.] [S.S. SHINDE, J.] asb/JAN19 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 12:37:18 :::