Bombay High Court
Bashir Ahmed Usman Gani Kairullah vs The State Of Maharashtra And Ors on 7 August, 2018
Equivalent citations: AIRONLINE 2018 BOM 910
14. cri wp 3988-17.doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3988 OF 2017
Bashir Ahmed Usman Gani Kairullah .. Petitioner
Versus
The State of Maharashtra & Ors. .. Respondents
...................
Appearances
Mrs. A. M. Z. Ansari a/w
Mrs. Nasreen S.K. Ayubi Advocate for the Petitioner
Mr. Arfan Sait a/w
Mrs. G.P. Mulekar APP for the State
...................
Digitally
signed by
Ravindra
CORAM : SMT. V.K. TAHILRAMANI, Acting C.J. &
Ravindra Mohan
Mohan Amberkar
Date:
M.S. SONAK, J.
Amberkar 2018.08.08
14:58:40
+0530 RESERVED ON : AUGUST 1, 2018.
PRONOUNCED ON : AUGUST 7, 2018
ORAL ORDER [PER SMT. V.K. TAHILRAMANI, A.C.J.] :
1. Heard both sides.
2. The petitioner had preferred an application for parole on the ground of illness of his wife. The said application was rejected by order dated 20.3.2017. Being aggrieved thereby, the petitioner preferred an appeal. The appeal came to be jfoanz vkacsjdj 1
14. cri wp 3988-17.doc dismissed by order dated 24.7.2017, hence, this petition.
3. The application of the petitioner for parole came to be rejected mainly on the ground that he has been convicted in the extremely sensitive 1993 bomb blast case. The order of rejection further states that as per Notification dated 26.8.2016, the petitioner cannot be released on parole. By the said Notification dated 26.8.2016, Rule 4(13) of the Prisons (Bombay Furlough and Parole) Rules, 1959 has been amended. Rule 4(13) after amendment inter alia states that a prisoner who has been convicted for terrorist activities cannot be released on furlough. The said Notification further states that only those who are eligible for furlough are eligible for regular parole. As far as furlough is concerned, Rule 4(13) of the Prisons (Bombay Furlough and Parole) Rules states that the prisoners who have been convicted for the offence of dacoity, terrorist crime, kidnapping for ransom & NDPS Act would not be eligible to be released on furlough. Thus, if the petitioner had applied for furlough, in view of Rule 4(13) of the Prisons Rules, he would not be eligible to be jfoanz vkacsjdj 2
14. cri wp 3988-17.doc granted furlough, hence, in view of the Notification dated 26.8.2016, the petitioner would not be eligible to be released on parole.
4. In the order of rejection, it is further stated that as the petitioner is undergoing sentences of imprisonment in a very sensitive case like bomb blast case, if he is released on parole, there may be a law and order problem. It is further stated that the police report states that there is objection to the petitioner being released on parole. The appellate order also states that the petitioner is involved in terrorist activities, hence, in view of the Notification dated 26.8.2016, he is not eligible to be released on parole.
5. Mrs. Ansari, the learned counsel for the petitioner submitted that the ground on which the application of the petitioner came to be rejected is a totally erroneous ground. This Court, time and again, has held that if the application of the prisoner is prior to the Notification dated 26.8.2016, the jfoanz vkacsjdj 3
14. cri wp 3988-17.doc said Notification cannot be made retrospectively applicable to the prisoner. This submission is indeed correct. This Court in various decisions has held that the said Notification would be only applicable to the prisoners who have made applications for parole after the Notification and the relevant date is the date of the application and not the date of offence or the date of conviction. Useful reference can be made to the decisions of this Court in the case of Santosh Namdeo Bhukan Vs. State of Maharashtra reported in 2016(3) BCR (CRI) 165 : 2017 (1) ABR (Cri) 404 and Sharad Devaram Shelake Vs. State of Maharashtra reported in 2016(4) Mh.L.J. 228 : 2017(1) ABR (Cri) 33.
6. In the present case, the moot question is whether the application of the petitioner for furlough on the ground of illness of his wife can be said to be made before the Notification dated 26.8.2016. Mrs. Ansari vehemently submitted that the application of the petitioner for parole on the ground of illness of his wife was made on 22.6.2016, jfoanz vkacsjdj 4
14. cri wp 3988-17.doc hence, according to her, it would have to be held that the application was prior to the Notification dated 26.8.2016, hence, the said Notification cannot be made retrospectively applicable to the case of the petitioner.
7. No doubt, the application of the petitioner for parole on the ground of illness of his wife was handed over by the petitioner to the Jail Authorities on 22.6.2016, however, the necessary medical certificates were not annexed to the said application and only the certificate of private doctor was annexed. In Notification dated 1.12.2015, it is stated that the medical certificates submitted by the prisoner for parole leave shall be verified and attested by the civil surgeon / medical superintendent / local medical officer of public health centre. This is stated in Rule 20(2) of the said Notification. Admittedly, the petitioner had not submitted any such medical certificate. It is to be borne in mind that the petitioner was seeking parole on the ground of illness of his wife. In such case, it was necessary for him to annex the jfoanz vkacsjdj 5
14. cri wp 3988-17.doc necessary medical certificate which was admittedly not done by the petitioner. Accordingly by communication dated 14.7.2016, the petitioner was informed by the Superintendent of Nasik Road Central Prison that as the medical certificate submitted by him was not as per the requirement, the said certificate was returned to him and he was asked to give certificate verified and attested by the civil surgeon / medical superintendent / local medical officer of public health centre or that the medical certificate given by him should be by any one of the above doctors. The petitioner was also informed by the said communication that if he does not comply with this requirement within the time period, he would be responsible for the delay in considering his application for parole. On the same day i.e on 14.7.2016, the petitioner took back the medical certificate of the private doctor. There is also endorsement to this effect which we have seen in the file and the learned counsel for the petitioner also admitted that the petitioner took back the medical certificate on 14.7.2016. Thereafter on 25.7.2016, jfoanz vkacsjdj 6
14. cri wp 3988-17.doc the petitioner made an application to the Divisional Commissioner Nasik, Nasik Division stating that the medical certificate would be submitted when the police do police verification and he be allowed to furnish the medical certificate in the police station which will be annexed to the police report. However, this is not as per the requirement. The requirement is that the application for parole as it is made on medical ground, the necessary medical certificate as required has to be annexed to the application. It is only then it can be said to be a complete application. When the Authorities consider the application for parole, it is necessary to have a medical certificate in order to see whether the illness is of such a nature that the prisoner deserves to be released on parole. In the present case, as the petitioner had taken back the certificate on 14.7.2016, there was nothing before the Authorities to consider whether the illness was such that the petitioner needs to be released on parole. The jail authorities waited for requisite medical certificate, but none was submitted though the petitioner jfoanz vkacsjdj 7
14. cri wp 3988-17.doc had been warned that if he does not comply with the requirement of submitting medical certificate, he would be responsible for the delay. Eventually, the jail authorities after waiting for medical certificate forwarded the application of the petitioner for parole to the Divisional Commissioner Nasik. It is also an admitted fact that on 10.10.2016, the application of the petitioner was sent by the Jail Authorities to the Divisional Commissioner, Nasik. As stated earlier, even on that date, no necessary medical certificate had been submitted. Mrs. Ansari also admitted that the first time that the medical certificate as required was furnished was on 22.11.2016 when it was handed over by the wife of the petitioner to the officer of Mahim Police Station. At that time, medical certificate relating to the illness of the wife of the petitioner issued by a government hospital i.e Sir J.J. Group of Hospitals, Mumbai was handed over to the police authorities. Thus till November 2016, no necessary medical certificate had been furnished which is the requirement as per the rules laid down for release on parole. jfoanz vkacsjdj 8
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8. The application can be said to be a complete application when it is accompanied by relevant and necessary annexures. If the necessary annexures are not annexed to the application, it cannot be said to be an application which is worthy of consideration. As stated earlier, the application of the petitioner which was submitted was not in compliance with the requirements under the Rule, hence there was no necessity to consider the same till there was necessary compliance. The medical certificate which was submitted by the petitioner was not as per the requirement, hence, it was admittedly returned to the petitioner on 14.7.2016. Thereafter, admittedly till the month of November 2016, requisite medical certificate was not furnished. The Supreme Court in the decision in the case of Union of India & Ors. Vs. All India Children Care & Educational Development Society, Azamgarh & Anr. reported in (2002) 3 SCC 649 has observed that an application submitted in full compliance with the statutory and mandatory preconditions alone would be entitled to the jfoanz vkacsjdj 9
14. cri wp 3988-17.doc benefit. In the said case, the society had to fulfill the requirement of owning and managing a 300 bed hospital, the details whereof should have been incorporated in the application, however, the respondent had not fulfilled all the requirements which it is under an obligation to fulfill on the date of making of the application. Thereafter, the Supreme Court observed that thus, when there was no fulfillment of the condition required under the Act, the High Court's order of allowing Writ Petition of the respondent-society cannot be sustained.
8a. The Rules in force on the date the application for parole or furlough is made, will apply. This however presupposes that the application is complete in all respects. Rule 20(2) of the Notification dated 1.12.2015 requires the application for parole to be accompanied by medical certificates from Government Hospitals. In case, medical certificates from private doctors are produced, the same have to be verified and attested by the civil surgeon / medical superintendent / jfoanz vkacsjdj 10
14. cri wp 3988-17.doc local medical officer of public health centre. In the present case, the application made on 22.6.2016 was accompanied by certificate from private doctor, therefore, the application was incomplete. Opportunity was in fact given to the petitioner to remedy the defect and complete the application. The completed application was made much after the coming into force of the Notification dated 26.8.2016. Thus, it has to be held that the application was made after 26.8.2016. As stated earlier, in the case of Union of India & Ors. Vs. All India Children Care & Educational Development Society, Azamgarh & Anr. (supra), the Hon'ble Supreme Court has held that provision under Section 10-A(5) of Medical Council Act, 1950 regarding deemed approval is applicable only where the application seeking approval of a scheme is complete in all respects and fulfills all mandatory conditions laid down under Section 10-A. In such circumstances, it was held that the High Court erred in allowing the respondent society's Writ Petition and holding that there had been a deemed approval of its scheme. jfoanz vkacsjdj 11
14. cri wp 3988-17.doc 8b. The Apex Court in the case of Dental Council of India Vs. S.R.M. Institute of Science & Technology reported in (2004) 9 SCC 676 has laid down that an incomplete application cannot be entertained. Further the Apex Court in the case of Islamic Academy of Education Vs. State of Karnataka held that an application will not be complete without being accompanied by essentiality certificate along with certain other documents and in absence thereof, the said application cannot be processed.
9. Thus, from the above, it is clear that the application for parole could not have been said to be an application for parole till 22.11.2016. Thus, it has to be held that the application of the petitioner is after 26.8.2016 and hence, the provisions of Notification dated 26.8.2016 would be attracted in the case of the petitioner.
10. In the Notification dated 26.8.2016, it is stated that those prisoners who are eligible for furlough can be released jfoanz vkacsjdj 12
14. cri wp 3988-17.doc on parole. We have already adverted above to Rule 4(13) which inter alia states that the prisoner who is convicted in a case relating to terrorist activities is not eligible to be granted furlough. Thus, this means that such prisoners would also not be eligible to be granted parole. The vires of Rule 4(13) came up for consideration before this Court in the case of Sharad Devaram Shelake (supra). In paragraphs 35 and 36 of the said decision, it is observed as under:-
35. In view of the above, there is no substance in the argument that the mandate of Articles 14 and 21 of the Constitution of India is violated and sub-rule 13 of Rule 4 falls foul of that mandate. It is not possible to uphold the contention that sub-rule 13 of Rule 4 is discriminatory in character and is violative of Article 14 of the Constitution of India. We are of the opinion that the classification has a rational basis and has a distinct nexus with the underlying object of the legislation and that it does not introduce any element of hostile discrimination. In the result, we come to the conclusion that sub-rule 13 of Rule 4 is valid and intra vires and not vulnerable to the charge of being violative of Article 14 of the Constitution of India.
36. For all the above reasons, we do not find any substance in the challenge to the validity of sub-rule 13 of Rule 4. As a result, the Writ Petition fails. Rule is discharged.jfoanz vkacsjdj 13
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11. The vires of Rule 4(13) also came up for consideration before this Court in the case of Santosh Namdeo Bhukan (supra). In the said decision, it was held that sub-rules (11) to (19) of Rule 4 are valid and intra vires.
12. Thereafter, Mrs. Ansari, the learned counsel for the petitioner placed reliance on the decision of the Supreme Court in the case of Asfaq Vs. State of Rajasthan & Ors.
reported in AIR 2017 SUPREME COURT 4986 to contend that even if a person is convicted in bomb blast case, he can still be released on parole. She placed reliance on paragraphs 10 and 14 of the said decision wherein it is observed that parole is generally granted in seven cases one of them being to maintain family and social ties. However, it is necessary to make a reference to the earlier part of paragraph 10 wherein it is stated as under:-
10. Many State Governments have formulated guidelines on parole in order to bring out objectivity in the decision making and to decide as to whether parole needs to be granted in a particular case or not. Such a decision in those cases is taken in accordance with the guidelines framed. Guidelines of some of the States stipulate two kinds of paroles, jfoanz vkacsjdj 14
14. cri wp 3988-17.doc namely, custody parole and regular parole. 'Custody parole' is generally granted in emergent circumstances like:
death of a family member;.....................
[ Emphasis supplied ]
13. Thus, the Supreme Court in the case of Asfaq has clearly stated that the decision in the cases of parole is to be taken in accordance with the guidelines framed. As per the rules and notifications which are applicable to the present petitioner, the prisoners who are convicted for terrorist activities are not eligible to be granted parole. The Supreme Court further observed that guidelines of SOME of the states stipulate two kinds of paroles, namely, custody parole and regular parole. However, as far the State of Maharashtra is concerned, we have rules which provide for release of prisoners on furlough and emergency and regular parole. An application for furlough is made without giving any reason as it is understood that furlough is granted to maintain family and social ties, to solve personal and family problems and to maintain links with society whereas parole, as per Rule 19 of the Prisons Rules, can be granted in case of serious illness jfoanz vkacsjdj 15
14. cri wp 3988-17.doc 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, earthquake.
Thus, parole cannot be granted for any other reason other than that stated in Rule 19. No doubt, for being released on furlough, the prisoner does not need to state any reason but for parole, the prisoner has to state the reason for being released on parole and if he is seeking parole on the ground of illness of a close relative, he has to annex the necessary medical certificate which we have adverted to above. Thus, unless and until the prisoner has document in support of serious illness of close relative, his application cannot be considered.
14. No doubt in the decision of Asfaq (supra), the Supreme Court has observed that the provisions of parole and furlough provide for a humanistic approach towards the prisoners and jfoanz vkacsjdj 16
14. cri wp 3988-17.doc the main purpose is to afford to them an opportunity to solve their personal and family problems and to maintain their links with society. However, in paragraph 10 itself, the Supreme Court has held that the decision in such cases are to be taken in accordance with the guidelines framed. In Maharashtra for the purpose of affording prisoners an opportunity to solve personal and family problems and to maintain their links with the society, the provision of furlough has been provided. Parole whether emergency parole or regular parole in the State of Maharashtra is granted only on limited grounds which have already been reproduced above. We would like to refer to paragraph 16 of the decision in the case of Asfaq (supra) where the Supreme Court has observed thus :-
16. Having noted the aforesaid public purpose in granting parole or furlough, ingrained in the reformation theory of sentencing, other competing public interest has also to be kept in mind while deciding as to whether in a particular case parole or furlough is to be granted or not. This public interest also demands that those who are habitual offenders and may have the tendency to commit the crime again after their release on parole or have the tendency to become threat to the law and order of the society, should not be released on parole. This aspect takes care of other objectives of sentencing, jfoanz vkacsjdj 17
14. cri wp 3988-17.doc namely, deterrence and prevention. This side of the coin is the experience that great number of crimes are committed by the offenders who have been put back in the street after conviction.
Therefore, while deciding as to whether a particular prisoner deserves to be released on parole or not, the aforesaid aspects have also to be kept in mind. ..............
[Emphasis supplied] Thereafter in paragraph 17, the Supreme Court has observed as under:-
17. Thus, not all people in prison are appropriate for grant of furlough or parole. Obviously, society must isolate those who show patterns of preying upon victims........
Lastly in paragraph 18 of the said decision, the Supreme Court has observed thus:-
18. To sum up, in introducing penal reforms, the State that runs the administration on behalf of the society and for the benefit of the society at large cannot be unmindful of safeguarding the legitimate rights of the citizens in regard to their security in the matters of life and liberty. It is for this reason that in introducing such reforms, the authorities cannot be oblivious of the obligation to the society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty (by a Court) of having perpetrated a criminal act. One of the discernible purposes of imposing the penalty of imprisonment is to render the society immune from the criminal for a specified period. It is, therefore, understandable that while meting out humane treatment to the convicts, care has to be jfoanz vkacsjdj 18
14. cri wp 3988-17.doc taken to ensure that kindness to the convicts does not result in cruelty to the society..........
Thus, the Supreme Court has observed that the interest of society has also to be kept in mind while releasing a prisoner on parole or furlough.
15. Thereafter, Mrs. Ansari placed reliance on the observations in paragraph 19 of the said decision wherein it is observed that where a person convicted has suffered incarceration for a long time, he can be granted temporary parole irrespective of the nature of offence for which he was sentenced. We have already observed earlier that parole in the State of Maharashtra is granted only for the limited grounds which are reflected in paragraph 13. It is pertinent to note that after the above observations were made by the Supreme Court on which reliance is placed by Mrs. Ansari, immediately thereafter, the Supreme Court has observed that, " We may hasten to put a rider here, viz. in those cases where a person has been convicted for committing a serious offence, the competent authority, while examining such jfoanz vkacsjdj 19
14. cri wp 3988-17.doc cases, can be well advised to have stricter standards in mind while judging their cases on the parameters of good conduct, habitual offender or while judging whether he could be considered highly dangerous or prejudicial to the public peace and tranquility etc."
As far as the conduct of the petitioner is concerned, it may be stated that in the jail, the petitioner has been given work of stitching, however, the petitioner is not doing the said work. The report to that effect of the Superintendent of Nasik Road Central Prison dated 19.7.2018 is taken on record and marked "X" for identification. This shows that the conduct of the petitioner in jail is not good in as much as he is not following prison discipline. This shows that the petitioner has tendency to rebel which may spill over in the society if he is released on parole Thus, it may be dangerous to the society to release such person on parole merely out of consideration of penal reform and humane treatment. As observed earlier, consideration of sympathy for him cannot be permitted to overshadow the consideration regarding jfoanz vkacsjdj 20
14. cri wp 3988-17.doc security of the society. It is generally argued that if a more serious crime like murder was not included in the list, there was no rational basis for including offences stated in sub-rule 13 of Rule 4. Herein again, the argument ignores the fact that though murder may be a crime against society but by and large an offence of murder is committed by a person under some real or imagined provocation or in a moment of passion and the perpetrator of the crime usually has a motive or animus against a particular individual or individuals and not against the society at large. There is, therefore, a far lesser danger of his committing a similar crime when he is on leave on furlough or parole, whereas offences of rape, dacoity, terrorism, kidnapping & under NDPS Act are offences which are directed against the entire society at large and the entire society is exposed to the danger emanating from them. So far as rape, kidnapping, dacoity, acts of terrorism and under the NDPS Act are concerned, any victim is a good victim and the entire society is exposed to the risk. It is, therefore, clear that these jfoanz vkacsjdj 21
14. cri wp 3988-17.doc offences fall in a different category. Whether or not the offence is more serious is not the relevant consideration for withholding parole. The relevant consideration is whether his release will expose the society to any danger. Therefore, the fact that murder may be by and large considered to be a more serious crime is not a circumstance which in any way impair the reasoning underlying the selection of the offences falling under the class specified in sub-rule 13. The petitioner in the present case was convicted in a bomb blast case. On account of the bomb blasts, 188 people were killed and 828 were injured. This is the magnitude of the offence which the petitioner has committed which figure is also mentioned by this Court in the decision dated 12.12.2017 in case of Mohammad Rafiq Usman Shaikh Vs. The State of Maharashtra & Ors. in Cri. Writ Petition No. 4145 of 2017.
16. Mrs. Ansari did not dispute that the legislature in its wisdom can make a classification of prisoners and their jfoanz vkacsjdj 22
14. cri wp 3988-17.doc conviction for serious offences. If all sub-rules are read together and harmoniously, then, it is evident that the Legislature intended that such of the prisoners whose presence is considered dangerous or otherwise prejudicial to the public peace and order or who have been considered dangerous because of their involvement in serious prison violence or offences which have an impact on the entire society should not be released on furlough / parole, then that classification cannot be held to be arbitrary, unreasonable, unfair and discriminatory to say the least. The prisoners, whose conviction is for such offences, which affect larger public interest and public good so also public peace cannot claim to mingle with the society as a matter of right. Further the classification made does not suffer from any irrationality, more so, when it is not vitiated by arbitrariness, unreasonableness and malafides. One has to also keep the object sought to be achieved in mind, that is, to protect the larger public interest, public good and public peace. It has also to be noted that acts of terrorism are on the rise, hence, jfoanz vkacsjdj 23
14. cri wp 3988-17.doc a deterrent measure, is very much necessary and release of persons convicted for such acts is not in the interest of society. We have already observed in the above paragraphs why we are of the opinion that release of prisoners falling under these categories is not advisable. The impact of release of a convict on parole on the society and the country as a whole, therefore, is a very relevant and germane consideration.
17. Thereafter, Mrs. Ansari placed reliance on the decision dated 24.11.2017 of a Division Bench of this court, Aurangabad Bench in Jafar s/o. Abdul Haq Shaikh vs. The State of Maharashtra and ors. in Criminal Writ Petition No. 1293 of 2017. She pointed out that in the said case, the petitioner was convicted in a bomb blast case. However, despite the Notification dated 26.8.2016, the petitioner was granted furlough. Notification dated 26.08.2016 states that prisoners who have been convicted for terrorist activities shall not be eligible for furlough. We have perused the said jfoanz vkacsjdj 24
14. cri wp 3988-17.doc decision. We have noticed that in the said decision after placing reliance on the decision of the Division Bench at the Principal Seat (Coram: Smt. V.K. Tahilramani & Sandeep K. Shinde, JJ.) in Altaf Ali Mushtaq Ali Sayed vs. State of Maharashtra and ors decided on 21.06.2017 in Criminal Writ Petition No. 2027 of 2017, it was observed that parole was granted to the petitioner therein despite the Notification dated 26.8.2016. Notification dated 26.8.2016 states that prisoners who are convicted for terrorist crimes shall not be eligible to be released on furlough. The Division Bench of this court at Aurangabad has observed that the petitioner, in Writ Petition No.2027 of 2017, Altaf Ali Mushtaq Ali Sayed was a bomb blast convict, and he was granted parole despite Notification dated 26.8.2016, based on the fact that the conduct and record of the petitioner in Writ Petition No. 2027 of 2011 was good. The relevant portion of the decision in Jafar s/o. Abdul Haq Shaikh, reads as under:
"6] We have given careful consideration to the submissions of the learned counsel appearing for the petitioner and the learned APP appearing for the respondent-State. We have carefully perused the impugned order, it appears that the main jfoanz vkacsjdj 25
14. cri wp 3988-17.doc ground on which the application of the petitioner is rejected appears to be that the Government of Maharashtra, Department of Home, issued a Notification dated 26th August, 2016, merely because in view of the said Notification and since the petitioner is a convict in a bomb Blast case, no parole/furlough can be granted to him. In this respect, it would be gainful to make reference to the order passed by the Division Bench at Principal Seat [Coram : Smt.V.K.Tahilramani & Sandeep K.Shinde, JJ.] in Criminal Writ Petition No.2027/2017, decided on 21.06.2017, wherein the petitioner was a convict in a case relating to the bomb blast and it was mentioned in the police report that if the petitioner is released on parole, he will not report back to the prison. However, keeping in view the earlier record of the petitioner therein, in respect of his release on parole/furlough and the fact that the petitioner therein did not misuse the liberty given to him, and reported back within time to the prison, the Division Bench issued directions to release the petitioner therein for a period of 30 days on parole."
18. Relying on the above fact, the Division Bench of this Court at Aurangabad in the case of Jafar s/o. Abdul Haq Shaikh, granted furlough to the petitioner who was a bomb blast convict. However, the main issue which was involved in the case of Altaf Ali Mushtaq Ali Sayed was that his application for furlough was dated 16.3.2016, i.e., much prior to the Notification dated 26.8.2016 and in that case obviously, the Notification dated 26.8.2016 could not have been made retrospectively applicable to Altaf Ali Mushtaq Ali jfoanz vkacsjdj 26
14. cri wp 3988-17.doc Sayed and as the said Notification could not have been made applicable to Altaf Ali Mushtaq Ali Sayed , the conduct of the said convict in jail and when he was earlier released on parole was kept in mind and he was released on parole. In case of Altaf Ali Mushtaq Ali Sayed, the only ground or reason for rejecting the application for parole was that he was convicted in a bomb blast case and if he is released on parole, he will not report back to the prison in time and the other reason was that if he is granted parole, the surety may not be able to keep a check on him. As the first ground of rejection that he was convicted in a case related to the bomb blast could not be made use of as the Notification dated 26.8.2016 was much after his application for furlough and hence the notification could not be said to be attracted in the case of Altaf Ali Mushtaq Ali Sayed because his application was much prior to the Notification and hence, the court had to look to the other grounds for rejecting the application of Altaf Ali Mushtaq Ali Sayed for parole. In view of the fact that he had been released on many occasions on furlough/parole jfoanz vkacsjdj 27
14. cri wp 3988-17.doc and he had reported back on the due date to the prison and the fact that during the period that he was on parole/furlough, he had not misused the liberty granted to him, the court was of the opinion in the case of Altaf Ali Sayed (supra) that the other grounds were also not good grounds to reject the application for parole. Hence, the main point in the case of Altaf Ali Mushtaq Ali Sayed was that his application for parole was much prior to the Notification dated 26.8.2016, hence, the fact that he was a bomb blast convict would not have come in the way of Altaf Ali Mushtaq Ali Sayed to be granted parole. It is very clear from the very first para of the decision in Altaf Ali Mushtaq Ali Sayed that his application for parole was prior to the Notification dated 26.08.2016. This important distinction in the case of Altaf Ali Mushtaq Ali Sayed was not brought to the notice of the court when the case of Jafar s/o. Abdul Haq Shaikh was decided on 24.11.2017 by the Division Bench of the Court at Aurangabad. The Division Bench of this Court in various decisions prior to Altaf Ali has held that if the application of jfoanz vkacsjdj 28
14. cri wp 3988-17.doc the convict is prior to the notification, the rigours of the notification would not apply to the said convict. This was also held in two reported decisions by the bench presided over by one of us (V. K. Tahilramani, J) who had rendered the decision in Altaf Ali The decision in Altaf Ali is dated 21.6.2017, however, the decision in the two reported decisions is 5.5.2016 in the case of Santosh Bhukan (supra) and decision dated 28.4.2016 in Sharad Shelke (supra). In these two decisions also, the judgment was rendered by the bench presided over by V.K. Tahilramani, J. Thus, once the legal position was clarified that if the application is prior to the Notification dated 26.8.2016, the notification cannot be made retrospectively applicable to the prisoner and such decisions were even reported, it was not felt necessary in matters thereafter to go on reiterating the same position and in matters which came up for consideration later only the date of application for parole / furlough was mentioned in the first paragraph of subsequent decisions and only if the application was after the Notification, the Notification was jfoanz vkacsjdj 29
14. cri wp 3988-17.doc held to be attracted. In view of all these facts, it was not felt necessary to keep on reiterating the same legal position and only the date of application for parole / furlough was mentioned in the first paragraph of the order. In Altaf Ali also, in the first paragraph itself, the date of application for parole is mentioned i.e 16.3.2016, thus, it was much prior to notification dated 26.8.2016, in such case, the Notification would not be attracted. Hence, it cannot be said that the decision in Altaf Ali Mushtaq Ali Sayed can be relied upon to hold that even if the application of the prisoner for parole/furlough is after Notification dated 26.8.2016, he can still be granted parole/furlough. In view of the Notification dated 26.8.2016, any application for furlough or parole after the notification by a person indulging in terrorist activities cannot be granted.
19. Thereafter, reliance was placed by Mrs. Ansari on the decision of the Aurangabad Bench of this High Court dated 4.7.2018 in the case of Mohammad Moin S/o Faridullah jfoanz vkacsjdj 30
14. cri wp 3988-17.doc Qureshi Vs. The State of Maharashtra & Ors. in Criminal Writ Petition No. 446 of 2018. She pointed out that in the said case, the petitioner was convicted in a bomb blast case, however, despite the Notification dated 26.8.2016, the petitioner was granted parole. On going through the said decision, we have noticed that the petitioner therein was released on parole on the same grounds as were relied in the case of Jafar s/o. Abdul Haq Shaikh (supra). Why the decision in the case of Jafar would be of no help to the petitioner has already been discussed in detail by us in paragraphs 17 & 18 while dealing with the decision in the case of Jafar.
20. Thereafter, Mrs. Ansari placed reliance on the decision dated 21.6.2017 of this Court in the case of Altaf Ali Mushtaq Ali Sayed Vs. State of Maharashtra & Ors. in Criminal Writ Petition No. 2027 of 2017. The main factor in the case of Altaf Ali was that his application for parole was prior to Notification dated 26.8.2016. The application of the jfoanz vkacsjdj 31
14. cri wp 3988-17.doc petitioner for parole in the said case was dated 16.3.2016. We have already set out in paragraphs 17 and 18 above why the said decision cannot be made applicable to the present petitioner as it cannot be held that the application of the present petitioner for parole was prior to 26.8.2016. In addition, we may refer to the decision of this Court (Coram :
V.K. Tahilramani & M.S. Sonak, J.J.) dated 25.4.2018 in the case of Pundalik G. Gole Vs. The State of Maharashtra in Criminal Writ Petition No. 1008 of 2018 wherein it is clarified in what situation parole came to be granted to Altaf Ali. The main reason is that his application was prior to 26.8.2016, hence, the other factors were looked into. The detailed reasoning is found in paragraphs 36 and 37 of the decision in the case of Pundalik G. Gole (supra). In fact, it is reflected in the very first paragraph of the decision in Altaf Ali that the application for parole is dated 16.3.2016 which makes it clear that the application was prior to Notification dated 26.8.2016, hence, the Notification by itself would not have come in the way of Altaf Ali being granted parole.jfoanz vkacsjdj 32
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21. Thereafter, Mrs. Anasri submitted that the decision in the case of Jafar s/o. Abdul Haq Shaikh (supra) was challenged before the Supreme Court and the Supreme Court by order dated 12.3.2018 dismissed the SLP. She submitted that this shows that the decision in the case of Jafar s/o.
Abdul Haq Shaikh that bomb blast convicts or persons convicted for terrorist crimes can be granted furlough / parole despite Notification dated 26.8.2016 has attained finality.
22. In relation to the above contention, we would like to refer to three decisions of the Supreme Court. A Bench of three Judges of the Supreme Court in the case of Y. Satyanarayan Reddy Vs. Mandal Revenue Officer, Andhra Pradesh reported in (2009) 9 SCC 447 has held thus:-
"23. It is well-settled that the dismissal of a Special Leave Petition in limine does not amount to a clear affirmation of the High Court decision and it does not constitute any binding precedent. [See : Workmen v. Board of Trustees of the Cochin Port Trust : (1978) 3 SCC 119 : 1978 SCC (L&S) 438; Indian Oil Corporation Ltd. v. State of Bihar : (1986) 4 SCC 146 : 1986 jfoanz vkacsjdj 33
14. cri wp 3988-17.doc SCC (L&S) 740; Supreme Court Employees' Welfare Association v. Union of India : (1989) 4 SCC 187 : 1989 SCC (L&S) 569; CIT v. Shree Manjunatheaware Packing Products & Camphor Works : (1998) 1 SCC 598; P. Nallammal and Anr. v. State : (1999) 6 SCC 559 : 1999 SCC (Cri) 1133; and U.P. State Road Transport Corporation v. Omaditya Verma and Ors. :
(2005) 4 SCC 424]"
Further, the Supreme Court in the case of State of Punjab Vs. Davinder Pal Singh Bhullar & Ors. reported in (2011) 14 SCC 770 has held thus:-
"112. The submission advanced on behalf of the respondents that as the Special Leave Petition filed against the impugned judgment by some other party, stood dismissed by this Court, these matters also have to be dismissed at the threshold without entering into merit, is not worth acceptance. The issue as to whether the dismissal of the special leave petition by this Court in limine, i.e., by a non-speaking order would amount to affirmation or confirmation or approval of the order impugned before this Court, has been considered time and again. Thus, the issue is no more res integra.
113. A large number of judicial pronouncements made by this Court leave no manner of doubt that the dismissal of the Special Leave Petition in limine does not mean that the reasoning of the judgment of the High Court against which the Special Leave Petition had been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for a reason, which may be other than merit of the case. An order rejecting the Special Leave Petition at the threshold without jfoanz vkacsjdj 34
14. cri wp 3988-17.doc detailed reasons, therefore, does not constitute any declaration of law or a binding precedent.
114. The doctrine of res judicata does not apply, if the case is entertained afresh at the behest of other parties. No inference can be drawn that by necessary implication, the contentions raised in the special leave petition on the merits of the case have been rejected. So it has no precedential value. (See: The Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin Port Trust & Anr., (1978) 3 SCC 119 : 1978 SCC (L&S) 438 : AIR 1978 SC 1283; Ahmedabad Manufacturing & Calico Printing Co. Ltd. v. The Workmen, (1981) 2 SCC 663 : 1982 SCC (L&S) 36 ; Indian Oil Corporation Ltd. v. State of Bihar, (1986) 4 SCC 146 : 1986 SCC (L&S) 740;
Yogendra Narayan Chowdhury v. Union of India, (1996) 7 SCC 1 : 1996 SCC (L&S) 362; Union of India v. Sher Singh, (1997) 3 SCC 555 : AIR 1997 SC 1796; Sun Export Corporation v. Collector of Customs, (1997) 6 SCC 564 : AIR 1997 SC 2658; Kunhayammed v. State of Kerala, (2000) 6 SCC 359 : AIR 2000 SC 2587; Saurashtra Oil Mills Association v. State of Gujarat, (2002) 3 SCC 202 : AIR 2002 SC 1130; Union of India v. Jaipal Singh, (2004) 1 SCC 121 : 2004 SCC (L&S) 12: AIR 2004 SC 1005 and DDA v. Bhola Nath Sharma (2011) 2 SCC 54 : (2011) 1 SCC (Civ) 344.) In another decision of the Bench of three Judges of the Supreme Court in the case of Kunhayammed & Ors. Vs. State of Kerala & Anr. reported in (2000) 6 SCC 359 it has been held that the dismissal of a special leave petition in limine by a non-speaking order does not justify any inference jfoanz vkacsjdj 35
14. cri wp 3988-17.doc that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by the Supreme Court. In the present case, the SLP in the case of Jafar has not dismissed on merits, by giving detailed reasons, hence, in view of the above decisions of the Supreme Court, it cannot be said to be a binding precedent, hence, reliance on the same would not advance the case of the petitioner.
23. Even otherwise, we have examined whether this is a case in which parole can be granted on the ground of illness of the wife of the petitioner. The application of the petitioner is dated 22.6.2016. The petitioner has relied on zerox copy of the medical certificate dated 15.6.2016 to support his contention that his wife was suffering from medical problem i.e schizophrenia. This certificate is annexed at page 26 to the petition. To the petition at page 24, the petitioner has annexed zerox copy of the medical certificate which is purportedly dated 15.9.2016 which again shows that the wife jfoanz vkacsjdj 36
14. cri wp 3988-17.doc of the petitioner is suffering from schizophrenia since June 2009. Both these certificates are stated to be issued by Dr. Harish P. Bedekar. We may state that as far as the certificate at page 24 is concerned, there is overwriting in the month. The figure has been overwritten as "9". We have carefully examined the certificate dated 15.6.2016 which is at page 26 to the petition and certificate purportedly dated 15.9.2016 which is annexed at page 24 to the petition. We have found that the certificate at page 24 is the same certificate which is at page 26, only it is a slightly enlarged zerox copy of the certificate dated 15.6.2016. In fact, the words in each of the sentences are the same, number of words in each line are the same and the commas and fullstops are at exactly at the same place and same distance in both the certificates. The exact spacing of the words is also the same. In fact there are full stops after the names of some medicines and not after names of some medicines. In both certificates, it is identical. We may state that names of 6 medicines are stated in both the ceritificates one below another and there is full stop only jfoanz vkacsjdj 37
14. cri wp 3988-17.doc after the 1st and 4th medicines prescribed, which is identical in both certificates. Thus, it is clear that to show that his wife is under continuous medical treatment, the petitioner has used certificate dated 15.6.2016. Then he zeroxed it and has got "6" overwritten as "9" and shown it as another certificate. It is noticed that only the stamp of the SEO certifying it to be true copy is at different place. Thus, it is seen that the petitioner has clearly tried to play fraud on the Court by using forged certificates. The petitioner has not come to the court with clean hands and thus, does not deserve any relief. We direct that two sets of zerox copies of the medical certificates dated 15.6.2016 and 15.9.2016 be taken and one set be kept in sealed cover with the Registrar General and another be kept with the Registrar (Judicial I) so that it is known what exactly are the documents annexed by the petitioner to the present petition and to prevent any further misuse or tampering.
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24. We may also state that it is an admitted fact that the wife of the petitioner is only on oral medication since nine years and it is not a case of urgent surgery or admission to hospital. She is staying with her brother and sister-in-law which is an admitted fact. Thus, the family members are capable of taking care of the wife of the petitioner. Thus, the ground of seeking parole on the ground of illness of wife of the petitioner is not a good ground to grant parole.
25. For all the above reasons, we do not find any reason to interfere in the order rejecting the application of the petitioner for parole. Hence, Rule is discharged.
[ M.S. SONAK, J ] [ ACTING CHIEF JUSTICE ]
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