Bombay High Court
Tasleemkhan Halim Khan (In Jail) vs The Superintendent, Central Prison, ... on 29 January, 2019
Author: Rohit B. Deo
Bench: P.N. Deshmukh, Rohit B. Deo
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION 3 OF 2019
Tasleemkhan Halim Khan
R/o. Bhamodi Collary, Upper Line,
Ward No. 14, Tahsil Parashiya,
District Chindawara (M.P.)(In jail),
Nagpur Central Prison, Nagpur) ...PETITIONER
...V E R S U S...
The Superintendent,
Central Prison, Nagpur ...RESPONDENT
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Ms. Sonali Khobragade, counsel for petitioner.
Mr. S.J. Kadu, Additional Public Prosecutor for respondent / State.
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CORAM: P.N. DESHMUKH, J.
ROHIT B. DEO, J.
DATE: 29th January, 2019.
Oral Judgment :(Per : Rohit B. Deo, J.)
Rule. Rule made returnable forthwith.
2 We have heard learned counsel Miss Sonali
Khobragade for the petitioner and Mr. S.J. Kadu, learned Additional Public Prosecutor for the respondent / State. ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 23:00:47 ::: 2 3 The petitioner is incarcerated in Nagpur Central Prison, Nagpur pursuant to conviction for offence punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner who is sentenced to undergo imprisonment for period to 10 years claims to have already undergone 7 years imprisonment.
4 The petitioner contends that his sister Praveen Khan Halim Khan r/o. Bhopal expired on 3.10.2018. The wife of the petitioner forwarded to the petitioner an application in the form of an affidavit dated 12.12.2018 seeking parole for period of 10 to 15 days, which application - affidavit was accompanied by copy of the death certificate.
5 The petitioner avers that he forwarded the application seeking parole to the Superintendent of Prison which the said authority refused to accept on the ground that the application was moved after 10 days of the death. The petitioner contends that he was orally informed by the authority that there is no power to entertain the application after 10 days of the death of the relative. 6 The petitioner contends that he is entitled to death ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 23:00:47 ::: 3 parole in view of the provisions of Rule 19 of the the Prisons (Bombay Furlough and Parole) Rules, 1959 (Furlough and Parole Rules) and that there is no provision in the said Rules that the application seeking death / emergency parole must be moved within 10 days. In the light of the said contention, the petitioner is invoking jurisdiction under Article 226 of the Constitution of India seeking a direction that the petitioner be released on death parole for 15 days.
7 The respondent has filed an affidavit in reply dated 15.1.2019. It is not disputed that the sister of the petitioner expired on 2.12.2018. The respondent asserts that since the application seeking release on death parole was not moved within 10 days of the death, the respondent is precluded from releasing the petitioner on death parole in view of the provisions of Circular dated 15.5.2000. The relevant averments in the affidavit in reply read thus:
"4. It is submitted that the sister of the petitioner expired on 2.12.2018 and the last rites has already been performed. That as per the provision under Rule 29 of Parole Rules the prisoners are entitled to be released on death parole for his nearest relative but this answering respondent has not received any ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 23:00:47 ::: 4 application for release on death parole immediately within 10 days of the date of death of the sister of the present petitioner."
"5 It is further submitted that as per the circular dated 15.5.2000 this answering respondent - the Superintendent of Prison is empowered to release the prisoner on death parole within 10 days of the date of death of the nearest relative. The copy of the circular dated 15.5.2000 is annexed herewith as Annexure R-1".
8 The learned Additional Public Prosecutor has placed on record a Circular dated 15.5.2000, which purports to issue guidelines regulating the exercise of power to grant death parole. The relevant clause on which the learned Additional Public Prosecutor is relying is clause 2 which reads thus:
2- tj can;kauh R;kaP;k ukrsokbZdkaP;k e`R;wuarjP;k brj dk;kZlkBh vFkok /kkfeZd dk;kZlkBh tj fu;ekuqlkj vfHkopu jtsoj lksM.kslkBh fouarh dsyh vlsy rj R;kl ukrsokbZdkaP;k e`R;wP;k rkj[ksiklwu 10 fnolkar jtsoj lksMkos-
9 It is difficult to appreciate the submission of the learned Additional Public Prosecutor Shri S.J. Kadu that clause 2 of Circular 15.5.2000 which is reproduced supra precludes the ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 23:00:47 ::: 5 authority from granting death parole after 10 days of the death. It is apparent that the said clause only seeks to emphasis that application for death parole ought to be considered expeditiously and on priority to enable the convicts to perform or participate in the religious rites and rituals. More importantly, on perusal of the Furlough and Parole Rules, and in particular Rule 19, we find that there is no time limit prescribed for applying for death parole much less time limit of 10 days from death. If clause 2 of the Circular dated 15.5.2000 is interpreted in the manner suggested by the learned Additional Public Prosecutor Shri S.J. Kadu, the said clause would be clearly inconsistent with the Furlough and Parole Rules which are framed in exercise of powers conferred by clauses 5 and 28 of section 59 of the Prisons Act, 1894. Rule 19 of the Furlough and Parole Rules reads thus:
[19. When a prisoner may be released on emergency parole:-
(1) Emergency Parole -
(A) All convicted prisoners except foreigner and death sentenced prisoners may be eligible for emergency parole for 14 days for death of parental grandfather or grandmother/father/mother/spouse/son/daughter/brother/si ster and marriage of son/daughter/brother/sister, provided that no extension can be granted to emergency parole, (B) Emergency parole may be granted by the Superintendent of Prison for the reason of death of parental grandfather or grandmother/father/mother/souse/son/ daughter /brother/sister and by concerned Dy. I.G. for the reason of marriage of son/daughter/brother/sister and the Authority ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 23:00:47 ::: 6 approving emergency Parole shall decide whether to grant parole under police escort or with a condition to report daily to the local police station depending upon the crime committed by the prisoner and his conduct during his stay.
The expenses of police escort will be borne by the prisoner himself prior to his release on parole.
(2) Regular parole -
All the prisoners eligible for furlough shall be eligible for regular parole for following reasons:
a. Serious illness of father/mother/spouse/son/ daughter b. Delivery of wife (except high security risk prisoners) c. In case of natural calamities such as house collapse, flood, fire, earthquake, etc. Provided that, a prisoner shall not be released on emergency or regular parole for the period of one year after the expiry of his last emergency or regular parole except in case of death of his nearest relatives mentioned above.
In case of Regular parole, eligibility and limits of parole days will be as follow:
(A) When average sentence of prisoner is not exceeding 5 years,
(i) Prisoner may be considered for first release on regular parole after completion of one year of imprisonment counted from the date of admission to prison under convicted crime, provided six months have been passed from his last furlough.
(ii) Prisoner shall be eligible for subsequent release on regular parole after completion of six months of actual imprisonment to be counted from his last return either from furlough or regular parole
(iii) Prisoners shall be eligible for maximum of 45 days of parole in a year which can be extended upto 60 days once in three years only under exceptional circumstance (B) When average sentence of prisoner exceeds 5 years but not more than 14 years,
(i) Prisoner may be considered for first release on regular parole after completion of two years of ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 23:00:47 ::: 7 imprisonment counted from the date of admission to prison under convicted crime provided six months have been passed from his last furlough.
(ii) Prisoner shall be eligible for next release on regular parole after completion of one year of actual imprisonment and subsequent release then onwards after completion of six months of actual imprisonment to be counted from his last return every time either from furlough or regular parole
(iii) Prisoner shall be eligible for maximum of 45 days of parole in a year which can be extended upto 60 days once in three years only under exceptional circumstances.
(C) When prisoner is sentenced to life or whose average sentence exceeds 14 years,
(i) Prisoner may be considered for first release on regular parole after completion of three years of imprisonment counted from the date of admission to prison under convicted crime provided six months have been passed from his last furlough.
(ii) Prisoner shall be eligible for next release on regular parole after completion of one year of actual imprisonment and subsequent release then onwards after completion of six months of actual imprisonment to be counted form his last return every item either from furlough or regular parole
(iii) Prisoner shall be eligible for maximum 45 days of parole in a year which can be extended upto 60 days once in three years only under exceptional circumstance.] 10 The distinction between Furlough and Parole is well settled. Furlough is a matter of right. Parole can not be claimed as a matter of right. However, emergency parole or death parole can not be denied to the prisoner on grounds extraneous to the ::: Uploaded on - 31/01/2019 ::: Downloaded on - 31/01/2019 23:00:47 ::: 8 exercise of power under Rule 19. The denial of parole can not be whimsical or arbitrary or de-hors statutory rules. Irrefutably, the sister of the petitioner - prisoner has expired and he is therefore entitled to be considered for grant of emergency parole under Rule 19(1). The only reason which is spelt out in the affidavit in reply for denial of emergency or death parole is that the application seeking such parole was not moved within 10 days of the death. The reason and justification pleaded can not be countenanced. The refusal of emergency or death parole to the petitioner - prisoner is clearly illegal and arbitrary. 11 We, therefore, direct that the petitioner shall be entitled to be released on emergency / death parole for a period of 15 days upon such terms and conditions as the authority may deem fit to impose consistent with the Furlough and Parole Rules. 12 Rule is made absolute in the aforestated terms.
JUDGE JUDGE
Belkhede
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