Bombay High Court
Chaitu Irrapa Wadde (In Jail) vs Deputy Inspector General Of Prison ... on 1 March, 2018
Bench: R. K. Deshpande, M.G.Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO. 1023 OF 2017
Kishor @ Prakash Lalse Sadmek,
aged about 40 years, R/o. Hindewada,
Bhamragad, Distt. Gadchiroli
(Police Station Dodraj)
(C/48, District Prison, Wardha) ...... PETITIONER
...VERSUS...
1. Deputy Inspector General of
Prison (East Region), Nagpur.
2. Superintendent of Jail,
District Prison, Wardha ...... RESPONDENTS
AND
CRIMINAL WRIT PETITION NO. 1111 OF 2017
Chaitu Irrapa Wadde (in Jail),
aged about 50 years, R/o. Police
Station Dhodraj, Bhamragadh,
Distt. Gadchiroli, Convict No.C-6556,
Central Prison, Nagpur. ...... PETITIONER
...VERSUS...
1. Deputy Inspector General of
Prison (East Region), Nagpur.
2. Superintendent of Jail,
Central Prison, Nagpur ...... RESPONDENTS
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Ms Sonali B Khobragade, counsel for Petitioners.
Ms H.N.Jaipurkar, APP for Respondents
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CORAM: R. K. DESHPANDE AND
M.G.GIRATKAR, JJ.
st
DATE : 1
MARCH, 2018 .
ORAL JUDGMENT
1] Rule made returnable forthwith.
Heard finally by consent of the learned counsels appearing for the parties.
2] The petitioner in Writ Petition No. 1023 of 2017 is the convict for the offence punishable under Section 307 read with Section 34 of Indian Penal Code and is sentenced to undergo 10 years rigorous imprisonment. For conviction of the offence under the Arms Act, the petitioner is imposed the punishment of undergoing 7 years rigorous imprisonment. For conviction under Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, (in short referred to as "TADA"), he is sentenced to undergo rigorous imprisonment for life. The petitioner has undergone sentence for a period of 12 years, 04 months and 26 days.
3] The petitioner in Writ Petition No. 1111 of 2017 is the convict for the offence punishable under Section 307 ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 00:29:10 ::: 3 3 cri wp1023.17 + 1111.17.odt read with Section 34 of Indian Penal Code and is sentenced to undergo 10 years rigorous imprisonment. For conviction of the offence under Section 3/25 of the Arms Act, the petitioner is imposed the punishment of undergoing 7 years rigorous imprisonment. For conviction under Sections 3 & 4 of the TADA (P), he is sentenced to undergo rigorous imprisonment for life. The petitioner has undergone sentence for a period of 13 years, 11 months and 16 days.
4] The petitioner in Writ Petition No. 1023 of 2017 was released on furlough leave in the year 2009. Even in the year 2012, he was released on furlough leave and he reported prison late by 3 days. Thereafter till this date, the petitioner is not released on furlough leave, though he was released on parole leave in the year 2013. 5] The petitioner in Writ Petition No. 1111 of 2017 was released on furlough leave on 9 occasions and surrendered in prison on due date on 7 occasions and late on 2 occasions. On 4 occasions, the petitioner was released on parole leave and he surrendered in prison on due date for 2 occasions and surrendered late on 2 occasions. ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 00:29:10 :::
4 4 cri wp1023.17 + 1111.17.odt 6] The petitioner in Writ Petition No. 1023 of 2017 made application on 21.03.2017 for grant of furlough leave for 28 days, which has been rejected by an order dated 26.05.2017 by the Deputy Inspector General of Prison, Nagpur.
7] The petitioner in Writ Petition No. 1111 of 2017 made application on 26.05.2017 for grant of furlough leave for 28 days, which has been rejected by an order dated 24.07.2017 by the Deputy Inspector General of Prison, Nagpur. Hence, these petitions.
8] The learned counsel for the petitioners has placed reliance upon the decision of the Apex Court Asfaq vrs. State of Rajasthan and other reported in (2017) 15 SCC 55 for the proposition that the prisoners are entitled to be released on parole and furlough leave even in cases of conviction under the provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987. The Apex Court has ultimately rejected the claim for release on parole leave. ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 00:29:10 :::
5 5 cri wp1023.17 + 1111.17.odt 9] The next decision relied upon by the learned counsel for the petitioners is of the Division Bench of this Court in case of Altaf Ali Mushtaq Ali Sayed vrs. State of Maharashtra and ors delivered in Criminal Writ Petition No. 2027 of 2017 by the Division Bench of this Court on 21.06.2017. It was a case where TADA Convict was released on emergency parole for a period of 30 days. The another decision delivered by the another Division Bench of this Court in Criminal W.P. No. 1293 of 2017 in case of Jafar Abdul Haq Shaikh vrs. State of Maharahstra and others, delivered on 24.11.2017 has also been relied upon. In this case, furlough leave was granted for a period of 30 days to a convict under the TADA.
10] The learned APP has invited our attention to the distinction made between the parole and furlough leave in the decision of the Apex Court in Ashfaq's case (cited supra). She has invited our attention to Rule 4(13) of the Prisons (Bombay Furlough and Parole) Rules, 1959 (referred to as "the said Rules"), introduced on 23.02.2012, dealing with the prohibition to release the prisoners on furlough leave, which ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 00:29:10 ::: 6 6 cri wp1023.17 + 1111.17.odt includes the prisoners convicted for the offences such as terrorist crime. She has further invited our attention to the amended provision of Rule 4(b)(13) of the said Rules which also prohibits release of TADA prisoners (terrorist crime) on furlough leave introduced on 26.08.2016. She submits that the release of the petitioners on earlier occasions on furlough leave was prior to 2012 when there was no prohibition. She submits that as per the decision of the Apex Court in Asfaq's case, TADA prisoners may be released on emergency parole leave and the said decision does not consider the provision of Rule 4(13) of the said Rules. She has relied upon the decision of the Division Bench of this Court in case of Smt. Rubina Suleman vrs. State of Maharashtra, delivered in Criminal Writ Petition No. 4017 of 2016, decided on 22.12.2016 and submits that the controversy is fully covered by the said decision and the petitioners are not entitled to the relief claimed in these petitions. 11] We find that the Division Bench of this Court in case of Jafar Abdul Haq Shaikh grants furlough leave to a TADA prisoner. It fails to take into consideration the provisions of Rule 4(13) of the said Rules introduced in the ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 00:29:10 ::: 7 7 cri wp1023.17 + 1111.17.odt year 2012 and the amendment introduced in 2016. The Division Bench in the decision in Altaf Ali Mushtaq Ali Sayed's case, released the TADA prisoner on emergency parole and the said decision is, therefore, not an authority on the question of release on furlough. In the decision of the Apex Court in Asfaq's case, the provision of Rule 4(13) of the said Rules was not considered.
12] In view of above, we find that the present case is covered by the decision of the Division Bench of this Court in case of Rubina Suleman vrs. State of Maharashtra, in which the furlough leave was refused on the basis of Rule 4(13) of the said Rules. The decision of the Division Bench in Jafar Abdul Haq Shaikh's case does not take into consideration the statutory provision of Rule 4(13), as it existed prior to amendment on 26.08.2016. We, therefore, hold that the said decision would not be of any help to the petitioners for grant of leave in the present case, which is opposed on the basis of Rule 4(13) of the said Rules. 13] In our view, the petitioners are not entitled to be released on furlough leave, in view of the provisions of Rule ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 00:29:10 ::: 8 8 cri wp1023.17 + 1111.17.odt 4(13) of the said Rules introduced in the year 2012 and amended in the year 2016. The petitions are, therefore, dismissed.
JUDGE JUDGE
Rvjalit
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