Bombay High Court
Yogesh Daulat Gadakh vs The State Of Maharashtra on 20 February, 2019
Bench: A.S.Oka, A.S.Gadkari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 5478 OF 2018
Yogesh Daulat Gadakh. ... Petitioner.
V/s.
The State of Maharashtra. ... Respondent.
Mr.N.N.Gawankar, Advocate as Amicus Curiae.
Mr.Feroz Ahmed Ansari for the petitioner.
Ms.P.P.Shinde, APP for the respondent- State.
CORAM : A.S.OKA AND A.S.GADKARI, JJ.
DATE : 20th February 2019.
P.C. :
Heard the learned counsel appearing for the petitioner and the learned APP for the State. In this petition, received through jail, the challenge is to an order made by the Divisional Commissioner, Nashik rejecting the application made by the petitioner for grant of parole under the provisions of the Prisons (Bombay Furlough and Parole) Rules, 1959 (for short "the said Rules of 1959"). Sub-section (1) of section 432 of the Code of Criminal Procedure, 1973 reads thus:
"432. Power to suspend or remit sentences.- (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
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SKN 2/5 5478.18-wp.doc Section 59 of the Prisons Act, 1894 (for short "the Prisons Act") was amended by the Bombay Act No.XXIII of 1989 by substituting sub-section (5) of section 59. The substituted sub-section (5) of section 59 reads thus:
"59. Power to make rules:-
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(5) for the award of marks, the suspension, or remission and consequent shortening of sentences, and the grant of release on parole or furlough an determining the conditions on which and the authority by which the sentences may be suspended or remitted and the prisoners may be released on parole or furlough;
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2. In exercise of powers under sub-section (5) of section 59, by the State framed the said Rules of 1959 which were amended from time to time. The first relevant amendment is by a notification dated 23 rd February 2012 by which Rule 19 dealing with grant of parole was substituted. The second amendment was made by the notification dated 26th August 2016 by which Rule 19 was again substituted. Prima facie, it appears to us that prior to the notification dated 26 th August 2016, the said Rules of 1959 did not provide that a person who applies for parole should be entitled to furlough which means that if a prisoner who applies for grant of parole is disqualified to get furlough in view of disqualifications incorporated in Rule 4, he will be disentitled to parole. Such a provision was introduced for the first time by the notification dated 26th August 2016. In the third major amendment carried out to the ::: Uploaded on - 05/03/2019 ::: Downloaded on - 18/03/2019 08:13:01 ::: SKN 3/5 5478.18-wp.doc said Rules of 1959 by the notification dated 16 th April 1989, the said disqualification for grant of parole has been retained.
3. Now, coming back to the present case, the application for parole has been rejected by a Competent Authority on the basis of disqualification incorporated in sub-rules (2) and (13) of Rule 4 of the said Rules of 1959.
4. The contention of the learned counsel appearing for the petitioner is that as the petitioner was convicted on 23 rd August 2016, the amendment made to the said Rules of 1959 with effect from 26 th August 2016 will not be applicable to the case of the petitioner. In short, the first contention is that the test to be applied is not the rules prevailing on the date on which the application is made for parole or the date on which the application is decided. According to him, the test is the rules which are most beneficial to the prisoner must be followed. He fairly invited our attention to the decision of the Division Bench of this Court in the case of Subhas Hiralal Bhosale v. The State of Maharashtra 1. He invited our attention to paragraph-21 which holds that the relevant date for applicability of provisions regarding furlough is the date on which the application is made for the grant of furlough. Though the submission of the learned counsel appearing for the petitioner is that what is observed in paragraph-21 is in the nature of obiter dictum, prima facie, we disagree with the said submission. From perusal of paragraph-20 of the said judgment it appears that the issue of the relevant date was specifically canvassed before the Division Bench.
1 2014 ALL MR (Cri) 4330
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5. The submission of the learned counsel appearing for the petitioner is that in the case of State of Haryana v. Jagdish 2, the Apex Court laid down that when it comes to remission of sentence or exercise of powers to curtail life sentence, if there are more than one policies in the field, one which is most beneficial to the prisoner will have to be applied irrespective of the date of conviction or the date on which the case of the petitioner is considered for premature release. The submission is that as the power which is exercised for curtailing the sentence or for grant of remission as well as for the power which is exercised for grant of furlough and parole is referable to section 432 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C."), the law laid down by the Apex Court in the case of State of Haryana v. Jagdish (supra) will squarely apply to the consideration of applicability of parole or furlough. In short, his submission is that if the law laid down by the Apex Court in State of Haryana v. Jagdish (supra) is held as applicable for grant of furlough or parole, the observations made by the Division Bench in Subhas Hiralal Bhosale v. The State of Maharashtra (supra) cannot be read as binding precedent.
6. Thus, the issue which arises for consideration is whether the law laid down by the Apex Court in the case of State of Haryana v. Jagdish (supra) will also apply to the applications for parole or furlough.
2 AIR 2010 SC 1690
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7. There is one more issue which will have to be addressed. Perhaps, in the case of State of Haryana v. Jagdish (supra), the Apex Court was dealing with the policies of the State Government regarding the exercise of powers under section 432 read with 433 of Cr.P.C, whereas the issue of grant of parole or furlough will be governed by the statutory rules framed in exercise of powers under sub-section (5) of section 59 of the Prisons Act. Even this issue will have to be considered while we decide the applicability of the decision in the case of State of Haryana v. Jagdish (supra) to the applications for grant of furlough and parole.
8. The learned APP seeks time to address the Court on the aforesaid issues. Accordingly, we direct that this petition shall be listed under the caption of high upon board on 6th March 2019. The parties are put to notice that endeavor shall be made to decide the petition finally at the admission stage.
9. We may note here that the petitioner has been provided legal aid by the High Court Legal Services Committee. We request to Shri Gavankar, learned counsel to assist the Court as Amicus Curiae to which he has fairly agreed.
(A.S.GADKARI, J.) (A.S.OKA, J.)
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