Bombay High Court
Gajanan Babulal Bathulwar vs The State Of Maharashtra on 7 March, 2014
Author: A.S. Chandurkar
Bench: B.R. Gavai, A.S.Chandurkar
wp272.12.odt 1/27
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO.272 OF 2012.
PETITIONER: Gajanan Babulal Bathulwar,
Central Prison, Nagpur and 77
others
-VERSUS-
RESPONDENTS: 1 The State of Maharashtra,
Through its Secretary, Home
Department, Mantralaya,
Mumbai.
ig 2
3
The D. I. G. Prisons (E)(R),
Nagpur.
The Superintendent, Central
Prison, Nagpur.
Ms. S. H. Bhatia Advocate (appointed) for the
petitioner.
Mrs. Bharti Dangre, Government Pleader for
respondents.
000
CRIMINAL WRIT PETITION NO.355 OF 2012
PETITIONER: Umashankar Shriram Potbhare,
Convict No.Nil, Central
Prison, Nagpur.
-VERSUS-
RESPONDENTS: 1 The Divisional Commissioner,
Nagpur Division, Nagpur.
2 The Superintendent, Central
Prison, Nagpur.
Mrs. Sonali Saware Advocate (appointed) for the
petitioner.
Mrs. Bharti Dangre, Government Pleader for
respondents.
::: Downloaded on - 11/03/2014 22:55:16 :::
wp272.12.odt 2/27
ooo
CRIMINAL WRIT PETITION NO.366 OF 2012
PETITIONER: Chandrashekhar Suresh Bhoyar,
Convict No.C/153, Open Prison,
Morshi, Distt. Amravti.
-VERSUS-
RESPONDENTS: 1 The Divisional Commissioner,
Nagpur Division, Nagpur.
2 The Superintendent, open
Prison, Morshi, Distt.
Amravati.
Ms. Radha Mishra
petitioner.
Mrs. Bharti
Advocate (appointed) for
Dangre, Government Pleader
the
for
respondents.
ooo
CRIMINAL WRIT PETITION NO.371 OF 2013
PETITIONERS: 1 Mahesh S/o Janardan Gonnade,
(In Jail), Convict No.C-7247,
2 Kantilal S/o Nandlal Jaiswal,
(In Jail), Convict No.C-8135,
Both C/o Central Prison,
Nagpur.
-VERSUS-
RESPONDENTS: 1 State of Maharashtra through
Secretary, Home Department,
Mantralaya, Mumbai-400 004.
2 The Divisional Commissioner,
Nagpur Division, Nagpur.
3 The Superintendent of Prison,
Central Prison, Nagpur.
Mr. Nitesh Samundre Advocate for the petitioners.
::: Downloaded on - 11/03/2014 22:55:16 :::
wp272.12.odt 3/27
Mrs. Bharti Dangre, Government Pleader for
respondents.
CORAM: B.R. GAVAI AND A.S.CHANDURKAR,JJ.
DATE OF RESERVING THE JUDGMENT ON: 27-01-2014.
DATE OF PRONOUNCING THE JUDGMENT: MARCH, 2014.
ORAL JUDGMENT : (Per A.S. Chandurkar, J)
1. These writ petitions filed by convicts seek to challenge validity of the proviso to Rule 19 of the Bombay ig (Furlough and Parole) Rules 1959 as amended by the Prisons (Bombay Furlough and Parole) (Amendment) Rules 2012. The Bombay (Furlough and Parole) Rules 1959 would hereinafter be referred to as the Rules of 1959.
BACKGROUND FACTS:
2. Criminal Writ Petition No.272 of 2012 has been filed on behalf of 78 convicts. It has been stated that in view of the amendment of 2012 to Rule 19 of the Rules of 1959, the petitioners are deprived from seeking release on parole within a period of one year from their earlier release. Criminal Writ Petition No.355 of 2012 has been preferred by a convict whose application for parole has been ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 4/27 rejected on the ground that he has sought release on parole within a period of one year from his earlier release. The petitioner in the said criminal writ petition had sought parole on account of his daughter's illness. In Criminal Writ Petition No.366 of 2012, the petitioner is seeking release on parole on account of his father's serious illness. However, as the period of one year is yet to lapse from his earlier release, the petitioner has challenged the proviso to Rule 19 of the Rules of 1959 as the same prevents his release. Criminal Writ Petition No.371 of 2013 has been filed by two convicts who are challenging the aforesaid proviso to Rule 19 on the ground that there is an embargo on the right of a prisoner to seek release on parole in view of amended provisions referred to above.
All these criminal writ petitions were directed to be heard together. Accordingly learned Counsel Ms. S. H. Bhatia, Mrs. Sonali Saware Ms. Radha Mishra and Mr. Nitesh Samundre for the petitioners have argued in support of the petitions and Mrs. Bharti H. Dangre, Learned Government Pleader has opposed the petitions on behalf of the State.
3. In Criminal Writ Petition No.272 of 2012 that has been filed by 78 convicts, it has been ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 5/27 stated that parole is granted in emergency situations that arise on account of serious illness or death of a family member. It has been urged therein that by restricting release on parole for only one occasion in a year, the convicts are unable to make themselves available in case there is a serious illness of a family member or for other situations as contemplated by Rule 19. It has, therefore, been stated that the restrictions placed by the proviso to Rule 19 of Rules 1959 deprive the petitioners of availing the right of parole in such situations thereby violating provisions of Article 21 of the Constitution of India.
In so far as Criminal Writ Petition No.355 of 2012 and 366 of 2012 are concerned, the same have been filed by individual convicts raising a grievance that on account of the proviso to Rule 19 of the Rules 1959, they are unable to seek their release on parole despite the illness of a close relative. In Criminal Writ Petition No.371 of 2013, the action of the State Authorities in not accepting an application for release on parole on the ground that the period of one year after expiry of earlier release had not come to an end. It has been stated that right of a prisoner to be so released on parole cannot be restricted in such a manner. In this regard, reliance ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 6/27 is placed upon the Division Bench judgment of this Court in the case of Namdeo Tarfe Vs. State of Maharashtra and others reported in 2008(4) Mh.L.J. 341.
4. On behalf of the respondents, the Superintendent of Prisons, Central Prison, Nagpur has filed an affidavit dated 19-6-2013 in Criminal Writ Petition No.303/2012. The stand taken in said affidavit has been adopted as the stand in all other connected ig writ petitions.
submitted that Rule 19 as amended is within the rule The respondents have making power of the State Government and is not contrary to the provisions of the Prisons Act, which by Section 59 empowers the State Government to frame such Rules. It has further been stated that considering the previous experience of the convicts to misuse and/or abuse benefit of parole leave, Rule 19 was accordingly amended. In paragraph 11 of aforesaid affidavit, it has been stated as under:
"11. It is submitted that the State of Maharashtra on the basis of material available with it found that the convicts are grossly misusing and abusing the provision for grant of parole leave. Most of the convicts repeatedly and frequently sought parole leave on the ground of illness of their nearest relatives on one ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 7/27 pretext or the other. It was, therefore, decided to impose reasonable, fair and just restrictions on release of convicts on parole by introducing substituted Rule 19. It is respectfully submitted that the respondent 1 is enclosing herewith marked as Annexure-R1A a chart showing in details the dates and duration of parole leave granted to all convicts presently undergoing jail sentence in Central Prison ig Nagpur.
enclosing
The respondent
herewith
1
marked
is also
as
Annexure-R1B a chart showing in
details the dates and duration of
parole leave granted to those
convicts who have jumped their parole leave and have thus abused the benefit granted to them. The respondent 1 submits most respectfully that several dreaded criminals who were undergoing jail sentence in Central Prison, Nagpur including criminals who were convicted for taking part in naxalite and terrorists operations have also jumped their parole. This fact was widely reported in local daily newspaper 'The Hitavada'. A copy of the relevant newspaper cutting published on 05.07.2012 is annexed hereto marked as Annexure-R1C. In the most respectful submission of the ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 8/27 respondent 1 the substituted Rule 19 whose vires is under challenged is a fair, reasonable, just and practical step and measure adopted by the State Government in plugging the loopholes in the jail administration and to rule out misuse and abuse of the statutory provisions qua grant of parole."
It is further submitted that considering the scheme of the Rules of 1959 with regard to grant 19 violates of parole, it cannot be said that the proviso to Rule the provisions of Article 21 of the Constitution of India. The learned Government Pleader has relied upon judgment of the Constitution Bench of the Supreme Court in Sunil Fulchand Shaha Vs. Union of India reported in 2000 (3) SCC 409 and another judgment of the Supreme Court in the case of State of Haryana and othes VS. Mohinder Singh reported in (2000) 3 SCC 394. The learned Counsel, therefore, prayed for dismissal of the writ petitions.
STATUTORY PROVISIONS:
5. Since there is a challenge to the validity of the proviso to the amended provisions of Rule 19 of the Rules of 1959, it would be advantageous to refer to the relevant statutory provisions while considering the aforesaid challenge. The Rules of ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 9/27 1959 have been framed by the State Government in exercise of powers conferred by Section 59 of the Prisons Act, 1894. Initially, Rule 19 read as under:
"19. A prisoner may be released on parole for such period as the Competent Authority referred to in Rule 18 in its discretion may order, in case of serious illness, or death of any member of the prisoner's family or of his nearest relatives or for any other sufficient cause".
Said Rule was thereafter amended on 21-11-1989 after which it read as under:-
ig "19. When a released on parole :-
prisoner may be A Prisoner may be released on parole for such period not exceeding thirty days at a time, as the Competent Authority referred to in rule 18, in its discretion may order, in cases of serious illness, or death of nearest relative such as mother, father, sister, brother, children, spouse of the prisoner, or in case of natural calamity such as house collapse, floods, fire. No such parole or extension of parole shall be granted without obtaining a police report in all cases except in the case of death of his nearest relatives mentioned above;
Provided that a prisoner shall not be released on parole for one year after expiry of his last parole except in the case of death of his nearest relative mentioned above."
Rule 19 was thereafter again amended with effect from 7-2-2007 and it read as under:
"19. When a prisoner may be ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 10/27 released on parole:-
"A prisoner may be released on parole for such period as the Competent Authority referred to in Rule 18 in its discretion may order, in case of serious illness, or death of any member of the prisoner's family or of his nearest relatives, or pregnant woman prisoner for delivery (except high security risk prisoner), or for any other sufficient cause."
By notification dated 23-2-2012, the State Government amended the Rules of 1959. By virtue of said amendment, Rule 19 as it now stands reads as under:- ig "19. When a prisoner may be released on parole.-- A prisoner may be released on parole for such period not exceeding thirty days at a time as the Competent Authority referred to in Rule 18 in its discretion may order, in case of serious illness or death of nearest relative such as father, mother, brother, sister, spouse, children or marriage of brother, sister and children of prisoner or pregnant woman prisoner for delivery (except high security risk prisoner) or in case of natural calamity such as house collapse, floods, fire and earthquake. No such parole or extension of parole shall be granted without obtaining a police report in all cases except in the case of death of his nearest relatives mentioned above:
Provided that, a prisoner shall not be released on parole for the period of one year after the expiry of his last parole except in case of death of his nearest relatives mentioned above."
The above proviso to Rule 19 restricting release of a prisoner within expiry of one year of ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 11/27 his earlier release on parole only in case of death of his nearest relative is the subject matter of challenge in the present writ petitions.
As the principal challenge to the proviso to Rule 19 of Rules of 1959 is based on violation of provisions of Article 21 of the Constitution of India, provisions of Article 21 of the Constitution of India are reproduced herein below.
"Article 21":
Protection of life and ig personal liberty.-- No person shall be deprived of his life or personal liberty except according to procedure established by law".
LEGAL POSITION IN VIEW OF PRONOUNCEMENTS OF THE SUPREME COURT AND THE HIGH COURT.
6. The concept of parole was examined by the Constitution Bench of the Supreme Court in case of Sunil Fulchand Shaha (supra). The question that was considered by the Constitution Bench was as to whether the period of detention gets automatically extended on account of the period of parole that is granted to a detenue. In that context, while considering the meaning of the word "Parole", it was observed thus:-
25. "Parole", however, has a different ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 12/27 connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. The dictionary meaning of "parole" is:
The Concise Oxford Dictionary -
(New Edition)
"The release of a prisoner
temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behaviour; such a promise; a word of honour."
Black's Law Dictionary -- (6th
ig Edition)
"Release from jail, prison or
other confinement after actually
serving part of sentence; Conditional release from imprisonment which entitles parolee to serve remainder of his term outside confines of an institution, if he satisfactorily complies with all terms and conditions provided in parole order.
According to The Law Lexicon,"parole"
has been defined as:
"A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole."
According to Words and Phrases:
'Parole' ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. People ex rel Rainone v.Murphy.
'Parole' does not vacate sentence imposed, but is merely a conditional suspension of sentence, Wooden v. Goheen.::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 13/27
A 'parole' is not a 'suspension of sentence', but is a substitution, during continuance of parole, of lower grade of punishment by confinement in legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the Court. Jenkins v. Madigan.
A 'parole' does not suspend or curtail the sentence originally imposed by the court as contrasted with a 'commutation of sentence which actually modifies it."
ig 26. In this country, there are no statutory provisions dealing with the question of grant of parole. The Code of Criminal Procedure does not contain any provision for grant of parole. By administrative instructions, however, rules have been framed in various States, regulating the grant of parole. Thus, the action for grant of parole is generally speaking, an administrative action. The distinction between grant of bail and parole has been clearly brought out in the judgment of this Court in State of Haryana v. Mohinder Singh to which one of us (Wadhwa,J) was a party. That distinction is explicit and I respectfully agree with that distinction.
27. Thus, it is seen that "parole" is a form of "temporary release" from custody, which does not suspend the sentence or the period of detention, but provides conditional release from custody and changes the mode of undergoing the sentence."
It was held by the Constitution Bench that the period of detention would not stand automatically extended by any period of parole granted to the detenue unless the order of parole or Rules or instructions ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 14/27 specifically indicate as a term and condition of parole to the contrary.
The decision in the case of State of Haryana (supra) has been approved in the aforesaid decision of the Constitution Bench.
7. In S. Sant Singh Vs. Secretary, Home Department, Government of Maharashtra, Mantralaya Mumbai & Ors., 2006 CRI. L. J. 1515, the Full Bench of this Court considered the question as to whether the grant of parole amounted to suspension of sentence within the meaning of Section 432 of the Criminal Procedure Code (hereinafter referred to as the Code). The Rules of 1959 were also considered in the aforesaid judgment and in that context, it was observed in paragraphs 22 and 23 as under:-
"22. It is seen that 'bail' and 'parole' operate in distinct fields although, the ultimate end is the release of the prisoner on certain terms and conditions. There is clear distinction between 'parole' and 'bail. 'Parole' has nothing to do with the actual merits on the matter i.e. the evidence which has been led against the convicted prisoner but 'parole' is granted in cases of emergency like death, illness of near relative or in cases of natural calamity such as house collapse, fire or flood. It is pertinent to note that in case of death of near relative, the Superintendent of Prison shall also be competent to release the convict on parole for a period not exceeding 15 days. Parole is ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 15/27 resorted to in cases of contingency. Looking to this fact it would not be expedient for the convict to approach the Courts and pray for temporary release especially in cases of death.
The Prison Rules take care of such emergencies.
23. Thus, Bail and Parole operate in different spheres and in different situations. In India, there are no statutory provisions dealing with the questions of grant of parole. The Code of Criminal Procedure does not contain any provision for grant of parole. By an administrative instruction,however, rules have been framed in various States regulating the grant of parole. Thus, ig the action of grant of parole is generally speaking an administrative action."
Rule 19 of the Rules of 1959 as it then existed prior to its amendment on 7-2-2007 was also taken into account. It was held by the Full Bench that grant of parole did not amount to suspension of sentence as contemplated by Section 432 of the Code.
The Division Bench of this Court while considering the scope and ambit of Rule 3 of Rules of 1959 in the case of Pralhad Gajbhiye Vs. State of Maharashtra and another reported in 1994 Mh.L.J., 1584 has observed thus.
"5. It is now well settled that furlough and parole have two different purposes. Furlough is a matter of right whereas parole cannot be claimed as a matter of right."::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 16/27
8. Rule 19 of the Rules 1959 permits release of a prisoner on parole for such period not exceeding 30 days at a time in cases of serious illness or death of close relatives or in case of natural calamities. The petitioners have no grievance with regard to the provisions of Rule 19 in so far as they recognize the right of a prisoner to be released on parole.
However, the proviso to Rule 19 restricts the release of a prisoner on parole for a period of one year after the expiry of his last parole except in case of death of his nearest relatives mentioned above. The restriction as imposed by the proviso has thus, led the petitioners to make a grievance that such restriction impinges upon their fundamental right as guaranteed by Article 21 of the Constitution of India. Thus, the challenge to the aforesaid proviso will have to be considered in the aforesaid background.
9. Article 21 of the Constitution of India ensures protection of the life and personal liberty of every person. A person can be deprived of his life or personal liberty only according to the procedure established by law. In so far as the aspect of "procedure established by law" is concerned, Section ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 17/27 59 of the Prisons Act confers power on the State Government to make such Rules for the purposes of release on furlough and parole. In exercise of said rule making power conferred by the Prisons Act, the Rules of 1959 have been framed by the State Government. There is no challenge in these writ petitions to the competency of the State Government to frame such Rules in exercise of the power conferred by Section 59 of the Prisons Act. It is thus, clear that the petitioners have no grievance in so far as framing of the Rules of 1959 are concerned.
Therefore, the Rules of 1959 as framed indicate that the "procedure established by law" has been followed while seeking to deprive the petitioners of their personal liberty while they are serving the sentence imposed upon them.
10. The challenge to the proviso to Rule 19 of the Rules of 1959 is that the same imposes excessive restrictions on the right of a prisoner to be released on parole. According to the petitioners, the situations as contemplated in Rule 19 of the Rules of 1959 are those situations over which, neither the prisoner, nor his family members have any control.
Hence, according to them by not providing for release on parole within a period of one year after expiry of ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 18/27 last parole, except in case of death of near relative, if any natural calamity or serious illness occurs within a period of one year from expiry of the last parole, then the prisoner cannot be released on parole. This according to the petitioners results in depriving them of their personal liberty and the same, therefore, violates the provisions of Article 21 of the Constitution of India. This is, therefore, the principal challenge to the proviso to Rule 19 of the Rules of 1959.
11. While considering the aforesaid challenge as raised by the petitioners of breach of their fundamental rights under Article 21 of the Constitution of India, it will have to be kept in mind that the petitioners are prisoners who are undergoing sentences imposed upon them for having committed an offence. The sentence of conviction has been imposed upon each of them in accordance with law. However, though convicted and undergoing such sentence, the petitioners nevertheless are entitled for protection of their fundamental rights under the Constitution of India. The question, therefore, is whether the fetters imposed by the proviso to Rule 19 of the Rules 1959 for release on parole is reasonable and justified in the facts and circumstances of the ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 19/27 situation or whether the same deprives a prisoner of his personal liberty in a manner that results in violation of provisions of Article 21 of the Constitution of India.
12. The right to be released on parole is not absolute right. It is exercised on the basis of administrative instructions framed by the State.
Such right can be exercised subject to existence of situations contemplated by Rule 19 of the Rules of 1959. It is necessary to note that initially when Rule 19 was framed, there was no such embargo on the release of a prisoner within a period of one year of expiry of the previous release on parole. The proviso to Rule 19 was first introduced by amending said Rules in the year 1989. This position continued till 7-2-2007 when said proviso was deleted. Now by notification dated 23-2-2012, the State Government has again added said proviso. It is thus, seen that the restriction on release on parole within a period of one year of expiry of last parole was initially placed and thereafter, deleted. It has now again been placed by virtue of the latest amendment to Rule
19. A perusal of the reply filed by the State and the stand taken therein indicates that there was ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 20/27 material available with the State Government on the basis of which it found that the convicts were grossly misusing and abusing the provisions for grant of parole leave. It has been stated that many convicts repeatedly and frequently sought parole leave on account of illness of nearest relatives.
There were also instances of convicts abusing aforesaid benefit and not reporting back after availing parole leave. This stand, therefore, indicates that with a view to curb the misuse of aforesaid provisions for grant of parole leave, the State thought it fit to impose some restrictions in the matter of grant of parole leave.
13. As the initial introduction, subsequent deletion and present reintroduction of proviso to Rule 19 has been effected and the same is being justified on the basis of past experience of the State, the principles contained in the Rule laid down in Heydon's case - (1584) 3 Co. Rep.7a, P. 7b:7 6ER 637 or the "mischief rule" will have to be considered. Though it is true that normally aid of said Rule is taken when the material words are capable of two or more constructions, it is equally well settled that the principles contained in said Rule can be kept in mind while considering the effect ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 21/27 of the provision under challenge. It would be apposite to refer to the decision of the Supreme Court in the case of Parayankandiyal Eravat Kanapravan Kalliani Amma (SMT) and others -Versus- K. Devi and others, reported in (1996) 4 Supreme Court Cases 76 as under:
"69. The learned Counsel for the appellant tried, at this stage, to invoke Heydon's Rule which is a sound rule of construction of a statute firmly established in England as far back as in 1584 when Heydon's case was ig decided that for the interpretation of all statutes in general, four things are to true be discerned and considered:
(1) what was the common law before the making of the Act, (2) what was the mischief and defect for which the common law did not provide, (3) what remedy Parliament hath resolved and appointed to cure the disease of the commonwealth, and (4) the true reason of the remedy;
and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy...
72. Heydon's Rule is generally invoked where the words in the statute are ambiguous and/or are capable of two meanings. In such a situation, the meaning which avoids the mischief and advances the remedy, specially in the case of a beneficial statute, is adopted. There is some controversy whether Heydon's Rule can be invoked in any other situation especially where the words of the statute are clear and unambiguous. In CIT v Sodra Devi it was indicated that the rule in Heydon's case is applicable only when the words in question are ambiguous ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 22/27 and capable of more than one meaning. That is what was expressed by Gajendragadkar, J. in Kanai Lal Sur v. Paramnidhi Sadhukhan. In Maunsell v.
Olins ALL ER at p.29, Lord Simon explained this aspect by saying that the rule in Heydon's case is available at two stages; first before ascertaining the plain and primary meaning of the statute and secondly at the stage when the court reaches the conclusion that there is no such plain meaning.
73. Be that as it may, we are not invoking the rule but we have nevertheless to keep in mind the principles contained therein to ig examine and find out whether the mischief from which the earlier legislation suffered on account of use of certain words has since been removed and whether the subsequent legislation is constitutionally valid and, on account of use of new phraseology, implements effectively the intention of the legislature in conferring the status of legitimacy on children, who were, otherwise, illegitimate."
14. In view of what has been stated above, what can be taken into account is the law that was prevailing prior to the amendment, what was the mischief and defect for which said provision did not provide and the manner in which said mischief and defect has been sought to be now resolved. From the material on record, it is clear that the State Government noticed that the provision for grant of parole leave was being misused on the pretext of ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 23/27 illness of nearest relatives. Considering its past experience of such repeated and frequent requests for parole leave, the State Government decided to impose a reasonable and just restriction on release of a prisoner on parole by introducing proviso to Rule 19.
The mischief of repeated and frequent requests for release was, therefore, sought to be remedied by introducing proviso to Rule 19 of the Rules of 1959.
If the State Government on the basis of material before it found it proper to impose some reasonable restrictions in the matter of release of a prisoner on parole, then in exercise of its rule making power, the State Government was within its rights in seeking to impose such restrictions by introducing proviso to Rule 19 of Rules of 1959. The material on the basis of which the State Government decided to act and which has been placed on record in the form of an affidavit with charts appended thereto is not questioned or disputed by the petitioners. It is, therefore, clear that valid circumstances existed so as to compel the State Government to look into the matter and introduce proviso to Rule 19 with a view to place a reasonable restriction on the right of a prisoner to be released on parole.
15. It would be necessary to examine the scheme ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 24/27 with regard to the Rules for grant of parole as contained in Rules 18 to 28 of the Rules of 1959.
Rule 18 refers to the authorities who are competent to sanction parole. Rule 24 lays down the conditions subject to which prisoners may be granted parole.
Rule 25 prescribes for extension of period of parole.
The competent authority can if an application is made by the prisoner or on his behalf before the expiry of the period of parole, extend the period of parole for conditions such ig further on which period the or periods prisoner was on the originally same granted parole. It is, however, provided that the total period of parole as extended shall not exceed 90 days.
Thus, it is clear that while Rule 19 permits release on parole for such period not exceeding 30 days at a time, under Rule 25 the period of parole can be extended up to 90 days. It is, therefore, clear that if a prisoner is released on parole on account of the contingencies specified therein and if before expiry of the initial period of parole, an application is made for extending the period of parole, the extension can be granted by the competent authority. It is pertinent to note that the extension of period of parole is not restricted on the occurrence of a particular contingency, but is ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 25/27 available in respect of any/all contingencies that have been specified in Rule 19. This, therefore, indicates that the Rules of 1959 contemplate even extension of period of parole up to 90 days depending upon the contingency.
16. As noted above, the right to be released on parole is not an absolute right. The same can be availed of in case of occurrence of the contingencies mentioned in Rule 19 of the Rules 1959.
case of serious illness, delivery of a pregnant woman Thus, in prisoner or in case of house collapse, floods, fire or earthquake, a prisoner if released on parole can seek extension of the period of parole if the contingencies so warrant up to a period of 90 days.
The proviso to Rule 19 has merely restricted the release on parole for a period of one year after the expiry of last parole except in case of death of the nearest relative mentioned in Rule 19. It, therefore, cannot be said that the entitlement of a prisoner to be released on parole is totally taken away. The same has merely been restricted and made permissible only if within a period of one year after the expiry of last parole, death of a close relative takes place. Such restriction on release on parole within one year of expiry of the last parole can neither be ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 26/27 said to be unreasonable or unjustified. We have found that the State was required to introduce such restriction on account of its earlier experiences.
Moreover, the right to be released on parole is on the basis of administrative instructions framed in exercise of the power conferred by Section 59 of the Prisons Act. By framing proviso to Rule 19 in the Rules of 1959, there is no dent caused to the personal liberty of a prisoner whose entitlement to be released ig on parole therefore, cannot be said that by introducing proviso has been kept intact. It, to Rule 19 of the Rules of 1959, the same results in breach of provisions of Article 21 of the Constitution of India. The challenge, therefore, as raised is without any substance and must fail.
17. In so far as the reliance placed on the Division Bench judgment of this Court in the case of Namdeo Tarfe (supra) is concerned, the said judgment considers the provisions of Rule 19 as it stood after its amendment with effect from 7-2-2007. Proviso to Rule 19 was not in existence and in that context, the Division Bench of this Court observed that Rule 19 as it stood did not put any embargo on the right of the prisoner seeking parole within one year from the date of last surrender. In the present case, the validity ::: Downloaded on - 11/03/2014 22:55:16 ::: wp272.12.odt 27/27 of the proviso to Rule 19 as amended on 23-2-2012 is under challenge. The aforesaid judgment is of no avail in the present context as the unamended provisions were considered therein. The reliance, therefore, placed on said judgment is misconceived.
18. As the challenge to the validity of proviso to Rule 19 of the Rules of 1959 has been found by us to be without any merit, Criminal Writ Petition No. Criminal 272 of 2012 that has been filed by 78 convicts and Writ Petition No.371 of 2013 filed by 2 convicts for aforesaid declaration, therefore, stand dismissed. Similarly, in Writ Petition No.355/2012 and Criminal Writ Petition No.366 of 2012, the petitioners seek grant of parole before expiry of period of one year of expiry of their last parole. In the view that we have taken, Criminal Writ Petition Nos.355/2012 and 366/2012 are also dismissed.
Fees of the learned Counsel appointed to represent the petitioners in Criminal Writ Petition Nos.272/2012, 355/2012 and 366/2012 are quantified at Rs.1500/- each JUDGE JUDGE //MULEY// ::: Downloaded on - 11/03/2014 22:55:16 :::