Bombay High Court
Shaikh Ali S/O. Shaikh Umar vs The State Of Maharashtra on 10 December, 2018
Author: S.S. Shinde
Bench: S.S. Shinde, K.K. Sonawane
1008.18WP
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1008 OF 2018
Shaikh Ali S/o Shaikh Umar
Age: 55 years, Occ: Prisoner
Convict No.C-6537
Central Prison, Harsul
Aurangabad.
...PETITIONER
VERSUS
1. The State of Maharashtra
Through its Principal Secretary,
Home Department,
Mantralaya, Mumbai-32.
2. The Deputy Inspector General
of Police (Prison)
Central Division, Central Prison,
Harsul, Aurangabad.
3. The Superintendent of Prison,
Central Prison, Harsul
Aurangabad.
...RESPONDENTS
...
Mr.M.S. Chaudhari holding for Mr.M.M.Chaudhari,
Advocate for Petitioner
Mr.A.B.Chate, A.P.P. for Respondent Nos.1 to 3
...
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1008.18WP
2
CORAM: S.S. SHINDE AND
K.K. SONAWANE, JJ.
DATE OF RESERVING ORDER : 5th DECEMBER, 2018
DATE OF PRONOUNCING ORDER: 10th DECEMBER, 2018
ORDER (PER S.S. SHINDE, J.):
1. The petitioner, being aggrieved by the order dated 2nd June, 2018 passed by respondent no.2, refusing to grant furlough to the petitioner, has filed this Petition.
2. It is stated in the Writ Petition that, the petitioner is convicted for life imprisonment on 7th June, 2007 in a bomb blast case. He is in jail since his arrest and he has undergone more than 25 years imprisonment. It is further the case of the petitioner that first time he was released on furlough on 3rd November, 2009. Thereafter, the petitioner was released 8 times on furlough and one time on parole. He reported back to the jail authority in time on every occasion. ::: Uploaded on - 10/12/2018 ::: Downloaded on - 26/12/2018 23:57:26 :::
1008.18WP 3
3. Relying upon sub-rule (13) of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959 (Hereinafter referred to as "Rules of 1959"), the petitioner's application requesting to release him on furlough has been rejected. Sub-rule (13) of Rule 4 of the Rules of 1959 reads thus:
"4. When prisoners shall not be granted furlough.-
The following categories of
prisoners shall not be considered for
release on furlough:-
(1) .......
(13) Prisoners convicted for offence
such as dacoity, terrorist crimes,
kidnapping, smuggling including those
convicted under the Narcotic Drugs and
Psychotropic Substance Act, 1985 (61 of 1985) and foreign prisoners."
4. It appears that, the respondent ::: Uploaded on - 10/12/2018 ::: Downloaded on - 26/12/2018 23:57:26 ::: 1008.18WP 4 authorities unaware of the Judgment of the Supreme Court in the case of Asfaq Vs. State of Rajasthan 1 proceeded to consider the prayer of the petitioner to release him on furlough and rejected the same relying upon the aforesaid rule. The Supreme Court in the case of Asfaq [supra] in para 19 held as under:
"19. Another vital aspect that needs to be discussed is as to whether there can be any presumption that a person who is convicted of serious or heinous crime is to be, ipso facto, treated as a hardened criminal. Hardened criminal would be a person for whom it has become a habit or way of life and such a person would necessarily tend to commit crimes again and again. Obviously, if a person has committed a serious offence for which he is convicted, but at the same time it is also found that it is the only crime he has committed, he cannot be categorised as a hardened criminal. In 1 [2017] 15 SCC 55 ::: Uploaded on - 10/12/2018 ::: Downloaded on - 26/12/2018 23:57:26 ::: 1008.18WP 5 his case consideration should be as to whether he is showing the signs to reform himself and become a good citizen or there are circumstances which would indicate that he has tendency to commit the crime again or that he would be a threat to the society. Mere nature of the offence committed by him should not be a factor to deny the parole outrightly. Wherever 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."
5. In the light of the observations made by the Supreme Court herein above, it would be relevant exercise to find out, from how many years the petitioner is in jail, and when he was released in past on furlough or parole, as the case may be, whether he has reported back within time.
6. As already observed, the petitioner has ::: Uploaded on - 10/12/2018 ::: Downloaded on - 26/12/2018 23:57:26 ::: 1008.18WP 6 stated in the Petition that, he has already undergone more than 25 years imprisonment and as and when he was released on furlough or parole, he reported back within time. Upon careful perusal of the affidavit in reply filed by the respondents, there is no denial to the aforementioned statement made by the petitioner in the Writ Petition.
7. The Supreme Court in the case of Asfaq (supra) made it clear that, mere nature of the offence committed by the convict should not be a factor to deny the parole outrightly. It is also observed that wherever 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. In the present case, past record and conduct of the petitioner and length of sentence undergone by him are the relevant factors. It appears that, the concerned respondent authorities while passing the ::: Uploaded on - 10/12/2018 ::: Downloaded on - 26/12/2018 23:57:26 ::: 1008.18WP 7 impugned order, did not keep in view the Judgment of the Supreme court in the case of Asfaq (supra) and also the aforesaid past record of the petitioner.
8. In that view of the matter, the impugned order dated 2nd June, 2018 passed by respondent no.2 is quashed and set aside, and the matter is remanded back to respondent no.2 for de novo consideration of the petitioner's application in the light of observations made herein before. We direct respondent no.2 to take decision on the application filed by the petitioner, as expeditiously as possible, however, on or before 14th December, 2018, and communicate the said decision immediately to the petitioner on very same day through the Superintendent of Jail. In addition to that, the concerned Authority shall also immediately forward the copy of the decision to the office of the Public Prosecutor, and the ::: Uploaded on - 10/12/2018 ::: Downloaded on - 26/12/2018 23:57:26 ::: 1008.18WP 8 Registrar [Judicial] of this Court so as to reach the same on or before 15th December, 2018.
9. With the above observations, the Writ Petition stands disposed of.
10. The parties to act upon authenticated copy of this order.
(K.K. SONAWANE, J.) (S.S. SHINDE, J.) SGA ::: Uploaded on - 10/12/2018 ::: Downloaded on - 26/12/2018 23:57:26 :::