Rajasthan High Court - Jaipur
Fazlur Rehman Sufi @ Shamim S/O Abdul ... vs State Of Rajasthan on 4 February, 2021
Bench: Sandeep Mehta, Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Writ Petition No. 515/2020
Fazlur Rehman Sufi @ Shamim S/o Abdul Rehman Sufi, R/o 54/b
2Nd Floor Room No 42 Hingwala Building Meghraj Sethi Marg
Mumbai 400011 Maharashtra At Present Confined In Central Jail
Jaipur Raj. Through His Wife Ashrafi Anisa Fazlur Rehman W/o
Fazlur Rehman Sufi R/o 54/b 2Nd Floor Room No 42 Hingwala
Building Meghraj Sethi Marg Mumbai-400011 Maharashtra
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary (Home)
Govt. Of Raj.
2. The Superintendent, Central Jail Jaipur
3. Union Of India, Through Under Secretary Mha Got. Of
India
----Respondents
Connected With
D.B. Criminal Writ Petition No. 542/2020
Asfaq S/o Shri Abdul Aziz, R/o Nagouri Mohalla Satmarg Near
Ramkaran School Dausa Raj. (At Present Confined In Central Jail
Jaipur) Through His Son Farookh Khan Son Of Shri Asfaq Aged
About 27 Years R/o Lalsot Road Opposite Purana Cinema Hall
Dausa Dist. Dausa Raj.
----Petitioner
Versus
1. Union Of India, Through Special Pp
2. State Of Rajasthan, Through Inspector General Prison
Jaipur
3. The Dist. Collector, Jaipur
4. The Superintendent, Central Jail Jaipur
----Respondents
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D.B. Criminal Writ Petition No. 609/2020
Abre Rehmat Ansari Son Of Shri Noor Mohammed Ansari,
Resident Of Village Kusoona Khurd, Po Gulhariya, Tehsil And P.s -
Menhdawal, District - Sant Kabir Nagar, (U.p) - 272171 Presently
Lodged In Central Jail, Jaipur, Rajasthan Through His Wife
Ameequnisa Abre Rehmat Ansari W/o Shri Abre Rehmat Ansari
R/o Village- Kusoona Khurd, Po Gulhariya, Tehsil And P.s -
Menhdawal, District- Sant Kabir Nagar - 272171 (U.p)
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary (Home)
Govt. Of Rajasthan
2. The Superintendent, Central Jail, Jaipur
3. Union Of India, Through Under Secretary, Mha Govt Of
India
----Respondents
D.B. Criminal Writ Petition No. 848/2020
Habib Ahmed Khan S/o Mohammad Afzal Khan, R/o Kaharon Ka
Adda Rae Bareilly (U.p.) At Present Confined In Central Jail
Jaipur Raj. Through His Son Mohammad Asif Khan S/o Habib
Ahmed Khan Aged About 55 Years R/o Kaharon Ka Adda Khinni
Talla Rae Bareli Raebareili U.p.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. The Superintendent, Central Jail Jaipur
3. The Union Of India, Through
----Respondents
For Petitioner(s) : Mr. Mujahid Ahmad through V.C.
Mr. Nishant Vyas
Mr. Lakhan Singh Tomar
For Respondent(s) : Mr. R.D. Rastogi, ASG assisted by
Mr. Akshay Bhardwaj through V.C.
Ms. Alka Bhatnagar, P.P.
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HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE PRAKASH GUPTA
Order
Order reserved on : 03/02/2021
Order pronounced on : 04/02/2021
REPORTABLE
BY THE COURT : (PER HON'BLE MEHTA, J.)
These four writ petitions have been filed by the petitioners Fazlur Rahman Sufi @ Shamim, Asfaq, Habib Ahmad Khan, Abre Rehmat Ansari, all of whom have been convicted for various offences including that under the TADA Act and have been awarded life sentence and are incarcerated at the Central Jail, Jaipur.
It is not in dispute that each of the petitioners have been incarcerated in prison for a period in excess of 26 years. For the sake of ready reference it may be mentioned here that the petitioners have already availed first parole by virtue of the following orders:-
Name of the convict Order granting first parole petitioner Order dated 22.02.2019 Fazlur Rahman Sufi @ passed by the Hon'ble Supreme Court in Criminal Shamim Appeal No.340/2019 for a period of 21 days Order dated 14.05.2018 Asfaq passed by the Hon'ble Supreme Court in Criminal Appeal No.10464/2017 (MA No.1178/2018) for a period of 21 days (1) Order dated 02.08.2018 Habib Ahmad Khan passed by the Co-ordinate Bench of this Court in Parole Writ Petition No.700/2018 for a period of 20 days. The said parole was further extended for a period of four days by order dated 29.08.2018 (Downloaded on 06/02/2021 at 08:48:21 PM) (4 of 14) [CRLW-515/2020] (2) Order dated 15.01.2020 passed by the Co-ordinate Bench of this Court in Parole Writ Petition No.654/2019 for a period of 15 days.
Order dated 15.04.2019
Abre Rehmat Ansari passed by the Hon'ble
Supreme Court in Writ Petition
(Criminal No.02/2018) for a
period of 21 days
After the petitioners had availed first/second paroles, as above, representatives/relatives of the petitioners submitted representations to the Government of India, Ministry of Home Affairs for grant of subsequent parole to the convict petitioners, which have been dismissed as below:-
Name of the convict Order rejecting
petitioner parole application
Fazlur Rahman Sufi @ Shamim 10.07.2020
Asfaq 22.06.2020
Habib Ahmad Khan 28.08.2020
Abre Rehmat Ansari 10.07.2020
For ready reference, the aforesaid orders are quoted
hereinbelow:-
Fazlur Rahman Sufi @ Shamim
"F.No. 13011/05/2019-LC Date 10.07.2020
ORDER
Whereas, this Ministry had received a
representation dated nil from Mrs. Anisa Fazlur Rehman for 2nd parole to her TADA convict husband Fazlur Rehman Sufi @ Shamim facing lifetime imprisonment at Central Jail, Jaipur (Rajasthan).(Downloaded on 06/02/2021 at 08:48:21 PM)
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2. And whereas, in order to consider parole to TADA convict Fazlur Rehman Sufi @ Shamim, this Ministry sought inputs from the authorities concerned.
3. And whereas, the matter was examined in detail in consultation with the Prosecuting Agency & State Government.
4. And whereas, as per Maharashtra Prisons (Bombay parole and furlough) Rules 1959, prisoners convicted under terrorist activities are not eligible for furlough and regular parole.
5. Now therefore, taking into consideration the recommendation of State Government, Prosecuting Agency and the serious nature of crime committed by Fazlur Rehman Sufi @ Shamim, the request of Mrs. Anisa Fazlur Rehman for 30 days parole to her TADA convict husband Fazlur Rehman Sufi @ Shamim does not find merit and is disposed of accordingly."
Asfaq "F.No.13011/02/2019-LC Date 22.06.2020 ORDER Whereas, a D.B. Criminal Writ Petition (Parole) No. 853/2019 was filed by TADA convict Asfaq before Hon'ble High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur for 30 days parole.
2. And whereas, disposing off the aforesaid petition, the Hon'ble High Court of Rajasthan vide its order dated 03rd March, 2020 directed to consider the representation dated 29.08.2019 made by the petitioner Asfaq for 30 days parole.
3. And whereas, in order to examine the request of TADA convict Asfaq, this Ministry sought inputs from the authorities concerned.
4. And whereas, the matter was examined in detail in consultation with the Prosecuting Agency.
5. Now therefore, taking into consideration the serious nature of crime committed by him and recommendation of prosecuting authority that release of the convicted accused on parole will be a serious threat to the society and nation, Government of India has decided not to agree to the request of Asfaq for 30 days parole. Hence, the representation dated (Downloaded on 06/02/2021 at 08:48:21 PM) (6 of 14) [CRLW-515/2020] 29.08.2019 of TADA Convict Asfaq does not find merit and disposed of accordingly."
Habib Ahmad Khan "F.No. 13011/02/2019-LC Dated 28th August, 2020 ORDER Whereas, a D.B. Criminal Writ Petition (Parole) No.392/2020 was filed by TADA convict Dr. Habib Ahmed Khan before Hon'ble High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur for permanent parole.
2. And whereas, the Hon'ble High Court of Rajasthan vide its order dated 11.08.2020 directed to consider for his permanent parole. The Hon'ble Court further directed Union of India to consider the said application in expeditious manner within 15 days.
3. And whereas, in the recent past this Ministry vide order dated 25th July, 2019 has already rejected parole request of TADA convict Dr. Habib Ahmed Khan on the basis of inputs received from Prosecuting Agency.
4. And whereas, the matter was examined in detail with the comments of Prosecuting Agency submitted earlier
5. Now therefore, taking into consideration the facts stated above and serious nature of crime committed by Dr. Habib Khan, Government of India has decided not to agree to the request of Dr. Habib Ahmed Khan for permanent parole. Hence, the request of TADA convict Dr. Habib Ahmed Khan does not find merit and is disposed of accordingly."
Abre Rehmat Ansari
"F.No. 13011/05/2019-LC Date 10/07/2020
ORDER
Whereas, this Ministry had received a
representation dated nil from Mrs. Ameequnnisa Abre Ansari for 2nd parole to her TADA convict husband Abre Rehmat Ansari facing lifetime imprisonment at Central Jail, Jaipur (Rajasthan).
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2. And whereas, in order to consider parole to TADA convict Abre Rehmat Ansari, this Ministry sought inputs from the authorities concerned.
3. And whereas, the matter was examined in detail in consultation with the Prosecuting Agency.
4. Now therefore, taking into consideration the serious nature of crime committed by Abre Rehmat Ansari and recommendation of Prosecuting Agency, the request of Mrs. Ameequnnisa Abre Rehmat Ansari for 2nd parole to her TADA convict husband Abre rehmat Ansari does not find merit and is disposed of accordingly."
Being aggrieved by the dismissal of their applications for subsequent/second paroles, the petitioners have approached this Court by way these writ petitions under Article 226 of the Constitution of India. Notice of the writ petitions have been issued to the respondents.
Mr. R.D. Rastogi, learned ASG, has put in appearance on behalf of the Union of India and the learned Public Prosecutor represents the State. Pleadings are complete.
There is a pertinent assertion in all writ petitions that the conduct of the convict concerned while in jail has been satisfactory and that they complied with all the terms and conditions imposed by the Court and Jail Authorities while availing earlier parole/s. These pertinent assertions made on behalf of the petitioners in the writ petitions have not been disputed either by the State Government or by the Union of India in the reply/counter affidavit.
Learned counsel representing the petitioners placed reliance on the earlier parole orders passed in favour of the petitioners and the Hon'ble Supreme Court's judgment in the case of Asfaq vs. State of Rajasthan [(2017) 15 SCC 55] and (Downloaded on 06/02/2021 at 08:48:21 PM) (8 of 14) [CRLW-515/2020] urged that the petitioners, who are of old age, deserve indulgence of second parole so as to enable them to maintain family ties and for various other pressing/emergent reasons.
Mr. R.D. Rastogi, learned ASG appearing for the Union of India, vehemently and fervently opposed the submissions advanced by the petitioners' counsel. He placed reliance on the judgments rendered by the Hon'ble Supreme Court's judgments in the cases of Sunil Fulchand Shah vs. Union of India & Ors [(2000) 3 SCC 409], State of Gujarat & Anr. vs. Lal Singh @ Manjit Singh & Ors. [(2016) 8 SCC 370] and Asfaq vs. The State of Rajasthan [(2017) 15 SCC 55] and the Division Bench judgment of this Court in Shambhu Dayal Vs. State of Rajasthan & Ors [(2012) 4 RLW 3073], the order dated 29.08.2018 passed by this Court in D.B. Criminal Writ Petition No.466/2018 (Fazlur Rahman Sufi @ Shamim vs. State of Rajasthan & Ors) to oppose the prayer of the petitioners and vociferously urged that in pleadings of the writ petitions, reference has been made to the Rajasthan Prisoners Release on Parole Rules, 1958 for seeking parole, whereas these rules do not apply to the petitioners' cases. Mr. Rastogi submitted that pleadings in the writ petition of Abre Rehmat Ansari are contradictory inasmuch as at one place it is mentioned that the petitioner's father has passed away, whereas in subsequent paragraphs, it is mentioned that he is on death bed. Mr. Rastogi has also, during the course of arguments, forwarded secret reports pertaining to each of the petitioner in sealed envelopes which were opened in the court and have been without disclosure of the contents of the reports to the parties. The reports were (Downloaded on 06/02/2021 at 08:48:21 PM) (9 of 14) [CRLW-515/2020] perused and then returned in sealed cover. On these grounds, Mr. R.D. Rastogi, sought dismissal of the writ petitions.
We have given our thoughtful consideration to the submissions advanced at bar and gone through the impugned orders and the material available on record. We have respectfully gone through the precedents cited at bar.
Suffice it to say that the position regarding applicability of the Rajasthan Prisoners Release on Parole Rules, 1958 to these cases is no longer res-integra as has been held by Division Bench of this Court in the case of Shambhu Dayal (supra) and in the order dated 29.08.2018 passed by Division Bench of this Court in D.B. Criminal Writ No. 466/2018 (Fazlur Rahman Sufi @ Shamim vs. State of Rajasthan & Ors). However, we are of the view that in a plea made by a convict incarcerated in prison for more than 26 years, the hyper technical opposition by the Union of India that the wrong set of rules are quoted in the pleadings cannot be considered to be valid ground to throw out the petitioners' plea of release on parole on humanitarian grounds and to enable them to maintain family ties. It is important to note here that the orders which have been challenged in all these writ petitions, whereby the representations seeking second/subsequent/permanent parole filed by the petitioners were rejected, were passed by the competent authority of the Union of India exercising the powers under the Parole Rules, 1955 (issued by the Government of India). While considering the case of the petitioner Asfaq [(2017) 15 SCC 55] seeking first parole the Hon'ble Supreme Court observed as below:-
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(10 of 14) [CRLW-515/2020] "15. A convict, literally speaking, must remain in jail for the period of sentence or for rest of his life in case he is a life convict. It is in this context that his release from jail for a short period has to be considered as an opportunity afforded to him not only to solve his personal and family problems but also to maintain his links with society. Convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens. Thus, redemption and rehabilitation of such prisoners for good of societies must receive due weightage while they are undergoing sentence of imprisonment.
17. From the aforesaid discussion, it follows that amongst the various grounds on which parole can be granted, the most important ground, which stands out, is that a prisoner should be allowed to maintain family and social ties. For this purpose, he has to come out for some time so that he is able to maintain his family and social contact. This reason finds justification in one of the objectives behind sentence and punishment, namely, reformation of the convict. The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, al beit for periods. These gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the good of the 2 (2000) 3 SCC 394 society and, therefore, are in public interest.
26. We find that the Rules of the Central Government, in this behalf, are of the year 1955, which are skeleton in nature. There is an imperative and immediate need for updating these Rules thereby including comprehensive provisions, in the light of the discussion contained above, incorporating the aforesaid and other principles so as to provide suitable guidelines to those who have to consider such applications for grant of parole. We are hopeful that this aspect shall be given due consideration at the appropriate level by the Government of India. For this purpose, a copy of this judgment may also be sent to the Ministry of Law & Justice, Government of India.
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(11 of 14) [CRLW-515/2020] From a careful perusal of the above observations of the Hon'ble Supreme Court it is clear that the rules formulated by the Central Government in the year 1955 were skeleton in nature and that there was imperative and immediate need for updating these rules. However, no progress has been made in this regard so far. It was further held that the most important ground on which parole can be granted is to enable the prisoner to maintain family and social ties. For this purpose he has to come out for some time so that he is able to maintain his family and social contact. Thus, even though the rules of 1955 prescribe release on parole on very limited grounds viz. ailment of the prisoner himself or his close family members, the ground for releasing the convict on parole expostulated by Hon'ble Supreme Court after examining these rules as mentioned in para 17 of Asfaq's judgment would hold field in the present scenario. The convict petitioners herein were granted first parole by relying on the above quoted observations in Asfaq's case (supra).
In the case of Mohd. Aijaz Akbar vs. State of Rajasthan & Ors. (Writ Petition (Criminal No.186/2019) decided on 16.12.2019, the Hon'ble Supreme Court granted parole to the writ petitioner therein so that he could maintain his relations with family.
It is not dispute that each of the writ petitioner herein has been extended the facility of first parole and second parole (Dr. Habib Ahmed Khan) by the orders referred to supra and there is no complaint/adverse report that any of the petitioners misused the liberty so granted to them.
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(12 of 14) [CRLW-515/2020] The judgments in the case of Sunil Fulchand Shah, State of Gujarat Vs. Lal Singh, Shambhu Dayal and Fazlur Rehman Sufi @ Shamim (supra), which were relied upon by learned ASG, are distinguishable. In the case of Shambhu Dayal (supra), the Division Bench of this court observed that the State Government has no power to release on parole the accused convicted under the NDPS Act and the application would lie to the Central Government.
While deciding the case of Fazlur Rahman Sufi @ Shamim vide order dated 29.08.2018 the Co-ordinate Bench relied upon the judgment in the case of Shambhu Dayal and reiterated the principles laid down therein. There cannot be any dispute that the parole applications of the accused convicted under the TADA Act would not lie to the State Government as the power to deal with the same lies exclusively with the Competent Authority of the Government of India under the 1955 rules. The petitioners have followed this requisite procedure and their representations for parole have been rejected (supra) by the Government of India. Thus, these judgments are of no help to the respondents for opposing the prayer made in the writ petition.
In the Sunil Fulchand Shah's case (supra), Hon'ble Supreme Court was examining the concept of parole in the cases where the person was under preventive detention. Manifestly the principles applying to that situation would have no application whatsoever to the case of the convict petitioners.
In the case of Lal Singh (supra) the Hon'ble Supreme Court went on to hold that when the writ jurisdiction of the High Court was invoked for release on convict on parole, strict (Downloaded on 06/02/2021 at 08:48:21 PM) (13 of 14) [CRLW-515/2020] compliance of the relevant considerations laid down in the case of Sunil Fulchand (supra) has to be made. In that case the Hon'ble Supreme Court did not find favour with the approach of the High Court, which abruptly exercised the powers under Article 226 of the Constitution of India and granted parole to the convict therein.
In the present case, the convicts have followed the statutory procedure by approaching the Central Government for grant of parole with reference to the 1955 rules. The prayers made by the petitioners for grant of prole have been turned down in a totally mechanical manner without referring to the fact that each of the convict petitioner had been granted first parole by orders passed by the Hon'ble Supreme Court and the Division Bench of this Court and that there is no complaint/adverse report whatsoever on record to show that the convicts misused the liberty of first parole so granted to them by courts. The secret reports relied upon by the learned ASG are totally lackadaisical as the same make a bald narration of the gravity of offences attributed to the petitioners and that their release would pose a threat to the nation. However, none of the reports refers the conduct of the convicts during first parole.
In this view of the matter, we are of the opinion that the impugned orders whereby the parole applications of the petitioners were rejected are unsustainable in the eyes of law as having been passed in a mechanical manner and without due application of mind to the facts and law. The petitioners deserve indulgence of second/subsequent parole so as to maintain the family and social ties. However, we are not making any observation on the merits of the prayer made by the petitioner Dr. (Downloaded on 06/02/2021 at 08:48:21 PM) (14 of 14) [CRLW-515/2020] Habib Ahmed Khan for release on permanent parole because the rules of 1955 do not allow release of a convict on permanent parole.
The writ petitions thus deserve to be accepted, the impugned orders are set aside. The convict petitioners shall be released on second parole for a period of 21 days subject to the condition that each of them shall furnish a personal bond of Rs.1,00,000/- and two sound and solvent sureties of Rs.50,000/- each to the satisfaction of the Superintendent, of the Central Jail concerned, who shall be at liberty to impose other suitable condition as per the prescribed procedure. The convict petitioners shall report to the SHO of the concerned Police Station on every third day during the period of parole. They shall surrender back to prison on the 22nd day of their actual release from custody.
The writ petitions are allowed accordingly.
(PRAKASH GUPTA),J (SANDEEP MEHTA),J
Pramod/JKP/26-29
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