Bombay High Court
Sardar S/O. Shahawali Khan (Prisoner ... vs The State Of Maharashtra And Others on 21 November, 2018
Bench: R.M. Borde, Mangesh S. Patil
{1}
cr wp no.649.17.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.649 OF 2017
Sardar S/o Shahawali Khan Petitioner
Versus
The Principal Secretary,
Home Department,
The State of Maharashtra and others Respondents
Mr. N.N. Gawankar h/f Mr. N.S. Ghanekar advocate for petitioner
Mr. D.R. Kale, APP for State.
...
CORAM : R.M. BORDE AND
MANGESH S. PATIL, JJ
Reserved on : 6.9.2018
Pronounced on: 21.11.2018.
ORDER
1 The petitioner is a convict, lodged in prison whose application for grant of furlough leave has been turned down by the Director General of Police - Prisons (D.I.G. Prisons), Central Region, Aurangabad and an Appeal tendered against the order of rejection of the request for grant of furlough, has been dismissed by the Inspector General of Prisons, Pune on 9.3.2017. 2 The petitioner has been convicted by the designated Court TADA Greater Bombay in Bomb blast case on 6.6.2007. It is the ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:48:08 ::: {2} cr wp no.649.17.odt contention of the petitioner that on earlier occasion, he was released on furlough as well as, was granted parole and has not abused the liberty granted to him on any occasion. An application tendered by him for his release on furlough has been turned down by referring to Rule 4(13) and 4(18) of the Maharashtra Prisons (Bombay Furlough & Parole) Rules, 1959, amended by Notification dated 26.8.2016 (herein after referred to as the Rules). Rule 4(13) of the Rules carves out certain categories of prisoners considering them ineligible for their release on furlough leave. In identical circumstances, the Division Bench of this Court at Nagpur, while dealing with criminal Writ petition No.234/2018, has, by an order dated 23.8.2018 directed the Registry to place the aforesaid matter before the Honourable the Chief Justice referring the question of law framed by the court for decision by the larger bench. The question of law that has been framed is:-
" Whether Rule 4(13) of the Maharashtra Prisons (Bombay Furlough & Parole) Rules, 1959 introduced by the notification dated 26.8.2016, creating an absolute bar to claim release on furlough leave and consequently Rule 19(2)(B)(i) of the Rules of 1959 to claim release on parole leave to the convict for the offence of rape is violative of Articles 14 and 21 of the Constitution, particularly when the offenders or convicts in other serious offences are entitled to such leave ? "::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:48:08 :::
{3} cr wp no.649.17.odt 3 The Division Bench of this Court at Nagpur did not agree with the view expressed by the Division Bench of this Court in another matter i.e. Sharad Devaram Shelake versus State of Maharashtra reported in 2016 (4) Mh. L.J. 228 wherein the validity of similar such rule 4(13) of the Rules 1959 introduced by Notification dated 23.2.2012 was upheld. The Division Bench, while upholding the validity of the aforesaid provision has relied upon the decision of the Apex Court in the case of State of Haryana and another versus Jai Singh reported in AIR 2003 SC 1696. In the case of Asfaq v. State of Rajasthan and others, reported in (2017) 15 SCC 55, it is held in para No.9 that the conviction in a serious and heinous crime cannot be the reason for denying the parole per se. On consideration of the decision in the matter of Asfaq (supra), the Division Bench at Nagpur considered it proper to refer the matter to the larger bench for consideration since, according to the Division Bench, the decision rendered by the Division Bench in the matter of Sharad Shelke (supra) stands impliedly over-ruled by the decision in the matter of Asfaq (supra).
4 Apart from the point of law framed for consideration of the larger bench, it is urged by the learned counsel appearing for the petitioner that certain other questions also need to be considered ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:48:08 ::: {4} cr wp no.649.17.odt along with the point framed by the Division Bench at Nagpur by order dated 23.8.2018.
5 In the matter of Balu Salveram Ubale versus The State of Maharashtra [2014 ALL MR (cri.) 2413] in Criminal Writ Petition No.432 of 2013 decided on 18.2.2014 it is held that Notification dated 23.2.2012 cannot be made applicable to the petitioner therein, since he was convicted in the year 2002. The decision in the matter of Balu Ubale (supra) was considered to be per- incuriam by the Division Bench at Principal Seat in the matters of Sharad Devaram Shelake (supra) in Cr. W.P. No.4034/2014, Santosh Namdeo Bhukan versus State of Maharashtra (2016 (4) Mh.L.J. (Cri) 83) Cr. W.P. No.3325/14 decided on 5.5.2016) and Rubina Suleman Memon versus State of Maharashtra & ors (2018 ALL MR (cri) 184) in Criminal Writ Petition No.4017 of 2016 decided on 22.12.2016). It is observed by the Division Bench at the Principal Seat in the aforesaid Judgments that the observations of the Division Bench in the previously decided matter i.e. Subhash Hiralal Bhosale versus State of Maharashtra reported in 2015 (1) Mh.L.J. (cri.) 664, (Cr. W.P. No.4187/2012 dated 4.9.2013) were not pointed out to the Court while decision was rendered in Balu Ubale's case.
::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:48:08 :::
{5} cr wp no.649.17.odt 6 According to the learned counsel for the petitioner, the decision in the matter of Subhash Bhosale (supra) which is the basis for adopting the view that the provision of Rule 4(13) apply in relation to a convict considering the date of application and has no reference to the date of his conviction or date of his arrest, shall not be construed as ratio decidendi. It is contended that there was no pleading to that effect in the matter of Subhash Bhosale (supra) that the petitioner therein was convicted prior to the date of issuance of Notification or that the said Notification does not apply to the petitioner. Even, there was neither such contention raised in the written submissions by the counsel for the petitioner, nor the issue has been dealt with in the reply filed by the respondent State. There was no prayer in the matter of Subhash Bhosale (supra) for declaration that the aforesaid provision apply in relation to the facts, considering the date of tendering of application for grant of furlough leave, irrespective of the factum of his conviction or arrest prior to the date of issuance of such Notification. At the stage of advancing arguments of the matter, the counsel for Santosh Bhosale made suggestion to the Court to deal with the issue and accordingly observations have been made by the Court, holding in favour of retrospective application of the relevant rule in para No.21 of the Judgment. According to the petitioner, in view of the decision of ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:48:08 ::: {6} cr wp no.649.17.odt the Apex Court in the matter of Sandeep Kumar Bafna versus State of Maharashtra (AIR 2014 SC 1745), the principle " per incuriam" is strictly applicable to the ratio decidendi and not to obiter dictum. According to the petitioner, observations made by the Division Bench in para 21 of Subhash Bhosale's case are in the nature of obiter dictum and has no binding effect. 7 Apart from this, relying upon the Judgment in the matter of Maru Ram and others versus Union of India reported in AIR 1980 SC 2147, it is contended that ordinarily, a criminal legislation must be so interpreted as to speak futuristically. In the matter of Maru Ram (supra), it was held that every person who has been convicted by the sentencing Court before December 18, 1978 (The date of introduction of section 433-A in the Criminal Procedure Code), shall be entitled to the benefits accruing to him from the remission scheme or short sentencing process, as if section 433-A did not stand in his way. The operation of section 433-A of Cr.P.C. was held to be prospective by the Supreme Court in the matter of Maru Ram (supra). It is contended that consideration of application for furlough leave is also a part of the remission scheme and applying the analogy adopted in Maru Ram's case by the Supreme Court, Rule 4(B)(13) which brings limitation in respect of grant of furlough leave to the prisoners ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:48:08 ::: {7} cr wp no.649.17.odt convicted or arrested prior to the date of introduction of rule, shall have to be construed as being operative prospectively and shall not apply to the cases like that of the petitioner, who has been convicted prior to introduction of the rule. 8 Relying upon the Judgment in the matter of State of Haryana & ors. versus Jagdish (AIR 2010 SC 1690), it is contended that prisoner's claim for remission is to be considered as per relevant Rules existing at the time of his conviction. In view of aforesaid decision, it is contended that the observations made by the Division Bench while dealing with the case of Subhash Bhosale (supra) in paragraph No.21 of the Judgment itself is per incuriam .
9 In view of the Apex Court Judgment in Maru Ram (supra), State of Haryana versus Bhup Singh & others (2009 2 SCC
268) and State of Haryana versus Jay Singh (supra), it is requested to frame suitable issue for consideration by referring the matter to the larger bench which can be dealt with along with Criminal Writ petition No.234/18 pending before the High Court of Bombay at Nagpur bench.
10 In view of above, the Registry is directed to place the matter before the Honourable the Chief Justice for referring the ::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:48:08 ::: {8} cr wp no.649.17.odt following questions of law for decision by the larger bench:
(a) Whether the observation made by the Division Bench at the principal seat in para No.21 of the Judgment in the matter of Subhash Bhosale versus State of Maharashtra in Criminal Writ Petition No.4187/2012 is in the nature of ratio decidendi or obiter dictum and as to whether the aforesaid observations can be construed as binding precedent ?
(b) Whether the applicability of Government Notifications dated 23.2.2012, 26.8.2016 and 16.4.2018 barring certain categories of prisoners from the application and for being considered for release on furlough leave is to be decided on the basis of the date of conviction of the prisoner or in relation to the date of Notification ?
11 The instant matter may be considered along with Criminal Writ petition No.234/2018 involving an identical issue, pending before the High Court of Bombay, bench at Nagpur and may be assigned for decision by the larger bench.
12 Office to act accordingly.
(MANGESH S. PATIL, J) ( R.M. BORDE, J )
vbd
::: Uploaded on - 21/11/2018 ::: Downloaded on - 23/11/2018 01:48:08 :::