Bombay High Court
Kantilal Nandlal Jaiswal (In Jail) vs Divisional Commissioner Nagpur ... on 14 March, 2019
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, Pushpa V. Ganediwala
J-cwp1046.18.odt 1/21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.1046 OF 2018
Kantilal Nandlal Jaiswal,
Aged about 68 years,
R/o. Rani Amravati,
Police Station Babhulgaon, District Yavatmal.
(C/8135, Central Prison, Nagpur) : PETITIONER
...VERSUS...
1. Divisional Commissioner,
Nagpur Division, Nagpur.
2. Superintendent of Jail,
Central Prison, Nagpur District,
Nagpur. : RESPONDENTS
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Shri Sunil Manohar, Senior Advocate assisted by Ms. S.B. Khobragade,
Advocate for the Petitioner.
Shri M.J. Khan, Addl. Public Prosecutor for the Respondents.
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CORAM : SUNIL B. SHUKRE AND
SMT. PUSHPA V. GANEDIWALA, JJ.
DATE : 14th March, 2019.
ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)
1. This petition principally challenges the vires of Rule 19(2) of the Bombay Parole and Furlough Rules, 1959 (in short, "the Rules, 1959") as amended by the Government Notification dated 16 th April, 2018.
2. The petitioner is a prisoner, who has been undergoing a life ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 2/21 sentence for an offence of murder punishable under Section 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code. He is also simultaneously undergoing sentences of imprisonment awarded to him for the offences punishable under Sections 148 and 449 with the aid of Section 149 of the Indian Penal Code. Presently he is lodged in Nagpur Central Prison.
3. The petitioner was granted emergency parole on the ground of marriage of his relative falling in the category of relatives mentioned in Rule 19(1) in 2018. He was released on parole on 27.6.2018 and he surrendered himself before the Prison Authority on 12.7.2018. Soon, thereafter, in August, 2018, petitioner once again applied for parole and this time it was from the category of regular parole. The ground was that Mayadevi, wife of petitioner was critically ill and personal presence of the petitioner at the Critical Hospital, Yavatmal where Mayadevi was undergoing treatment, was necessary in order to take decision on spot in relation to the line of treatment and the multiple medicine regimens prescribed by the doctor. This application was forwarded to the competent Authority, Divisional Commissioner, Nagpur (respondent No.1) for appropriate decision in accordance with law. As a part of procedure, verification report from the Superintendent of Police, Yavatmal was called for. It was received by Superintendent of Police Office vide letter dated 31.8.2018. The verification report was favourable. It confirmed seriousness of indisposition of Mayadevi, her ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 3/21 being administered treatment at Critical Hospital, Yavatmal, the surety offered by the petitioner being proper and competent and the respectable residents of the locality of the petitioner in Yavatmal having no objection to release of the petitioner on parole. But, the provision of Rule 19(2) of the Rules 1959, as amended by the Government Notification dated 16 th April, 2018 stood as a stumbling block for the authorities to favourably consider the application of the petitioner and the result was its rejection by the respondent No.1 by the order passed on 14.9.2018. The petitioner found the rejection as unacceptable and felt that the amended rule on which the decision was based as in-human, discriminatory, giving unequal treatment to similarly situated prisoners and against the right of the prisoners to be treated with basic dignity that the right to life guaranteed to them.
4. So, here is a petition which, while challenging the order of respondent No.1 dated 14.9.2018, puts a question mark over the validity of the amended provision of Rule 19, which in our view is actually a challenge to the proviso to amended Rule 19(2) of the Rules 1959 on the ground of it being discriminatory, unequal, arbitrary and unreasonable.
5. Shri Sunil Manohar, learned Senior Advocate for the petitioner submits that the proviso to amended provision of Rule 19(2) of the Rules, 1959 is discriminatory, unequal, arbitrary and unreasonable and, therefore, violates the principles of equality, rationality, and reasonableness enshrined in Articles 14 and 21 of the Constitution of ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 4/21 India.
6. Learned Senior Advocate submits that the provision is discriminatory and unequal because it creates two classes amongst equally situated prisoners and gives advantage to one class while denying the same advantage to the other class. He further submits that the previous rules which had a similar proviso as amended Rule 19(2) was, however, different. He points out that this difference lies in the objectives inserted by way of an amendment to Rule 19 which was not there in the previous rule. He submits that the objectives have been introduced for the first time by the notification dated 16 th April, 2018 and now one can say that they are the avowed objectives of amended rules. According to him, if any classification amongst the prisoners has to be done, the classification must have a reasonable nexus with the object sought to be achieved. He further submits that if the objectives of the amended provision are considered, the proviso to amended Rule 19(2) of the Rules 1959 could be easily seen to be having no nexus with the objectives introduced as Rule 1(A) rather, the proviso could be considered to be having the effect of defeating the objectives. He, therefore, submits that the proviso to Rule 19(2) falls foul of Article 14 of the Constitution of India.
7. The proviso to Rule 19(2), according to learned Senior Advocate, is also arbitrary and unreasonable as it defies logic. Elaborating further, learned Senior Advocate submits, it is permissible for ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 5/21 a prisoner released on regular parole to seek extension of parole, while being on parole, to maximum permissible limit in the same year on the one hand but it is not open to the prisoner to seek parole on the same or similar pressing ground twice in the same year, even though the gap between the previous parole and the new parole sought may be very small and the same or similar contingency as mentioned in Rule 19(2) may have arisen almost immediately after the expiry of the first parole. By way of illustration, he submits that if a prisoner is granted parole on the ground of serious illness of father or mother and about a few days of the expiry of the first parole, a natural calamity such as house collapse, flood, fire, earthquake etc. occurs, the prisoner would not be eligible to be released on parole on such a ground otherwise permissible only because the period of one year after the expiry of the last emergency or regular parole is not over. He submits that there is one exception to this rule and it says that successive parole could be obtained only in case of death of the nearest relative, who is either a father or mother or spouse or son or daughter. But such an exception, he points out, is not made in case of delivery of wife or natural calamity, although these contingencies are not within the control of the prisoner.
8. Learned Senior Advocate further submits that the provision is unreasonable also because it ignores the basic right of a prisoner to be treated with dignity. He places his reliance upon the cases of Navtej Singh Johar and others vs. Union of India, through Secretary, ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 6/21 Ministry of Law and Justice, reported in (2018)10 SCC 1 and Sunil Batra vs. Delhi Administration reported in AIR 1978 SC 1675.
9. Learned Senior Advocate further submits that even though a view has been taken that the proviso which denies regular parole to a prisoner on the ground of serious illness of the spouse before lapse of period of one year after expiry of last parole has been held to be not violative of Article 21 of the Constitution of India by the Division Bench of this Court in the case of Gajanan Babulal Bathulwar vs. State of Maharashtra and others, Criminal Writ Petition No.272/2012, decided along with other connected matters on 7 th March, 2014, the question requires reconsideration for the reason that what was upheld in that judgment was a similar proviso inserted to original Rule 19(2) of the Rules 1959 by the notification dated 23.2.2012, which was short lived because of it's removal later by another notification and that too when the proviso was upheld on the ground that it achieved the object of removing the mischief of large scale misuse of the provision of regular parole by prisoners, a stand which was specifically taken by the State then and found to be quite weighty. But, he further submits, suddenly the State changed the stand and forgetting its previous consideration of massive abuse of the original rule, deleted the proviso inserted as a safeguard against the abuse of the facility. He informs that again on 16.4.2018, the State reinserted the same proviso. He submits that such a flipflop on the part of the State Government would itself show that it is ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 7/21 acting unreasonably and arbitrarily and even in a discriminatory manner and as such, now the view taken in Gajanan would have no application to the present case involving change of circumstances.
10. Learned Senior Advocate further submits that the change of circumstances is also seen in bringing on the Statute book a new rule, Rule 1(A) to Rules 1959 by way of amendment of 16.4.2018 which embodies the objectives of the furlough and parole leaves terming them to be progressive measures of correctional services. These objectives, he submits, were not available for considering the validity of a similar proviso contained in 2012 Rule 19(2) and this is the additional reason according to him, which would necessitate reconsideration of the view taken by this Court in the case of Gajanan. He also submits that these objectives as well as challenge on the ground of violation of Article 14 were also not there for consideration before another Division Bench of this Court at Aurangabad in the case of Satish s/o. Shankarrao Shinde vs. State of Maharashtra and two others, decided on 15th January, 2019 in which the vires of the said proviso were only generally challenged and that was the reason why the Division Bench only generally upheld the validity of the new proviso without testing it in the context of it's objectives.
11. Learned Senior Advocate also submits that although there is a view taken by the Division Bench of this Court in Pralhad Gajbhiye vs. State of Maharashtra and another, reported in 1994 Mh.L.J. 1584 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 8/21 that furlough is a matter of right and parole is not, amended Rule 19(2) would still have to answer the test of equality and reasonableness enshrined in Articles 14 and 21 having regard to the fact that the objectives provided by insertion of Rule 1(A) have now attained the status of avowed objects demanding a reasonable connection with them of the provisions contained in Rule 19(2), irrespective of their attributes or nature.
12. Thus, the learned Senior Advocate submits, the challenge so specifically made in this petition has new grounds to seek support from and a new context of changed circumstances to ponder over while examining the validity of Rule 19(2) and as such a reference to appropriate larger Bench for it's resolution would be a necessity.
13. Shri M.J. Khan, learned Additional Public Prosecutor upon instructions received from the learned Advocate General and the State submits that there is no substance in the argument canvassed on behalf of the petitioner. According to him, there are two judgments rendered by two different Division Benches of this Court which have upheld the validity of not only 2012 amended provision but also 2018 amended provision and as such no scope has been left for this Court to take any different view in the matter. He submits that the provision could neither be said to be unreasonable nor discriminatory nor arbitrary. According to him, the State in exercise of it's rule making power has found it necessary to make a distinction between the ground of death of the ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 9/21 relative mentioned in Rule 19(2) and the other contingencies stated in this very Rule so as to grant subsequent leave on parole on multiple occasions in the same year in the former category, but not to grant the same on the ground of other contingencies. He submits that the amended provisions inserted by the Government notification dated 16.4.2018 are a result of a policy decision taken by the State in it's wisdom and put into effect as a part of subordinate legislation made by it and the wisdom of the State cannot be questioned on some perceived notions of inequality and arbitrariness entertained fallaciously by a prisoner.
14. Learned A.P.P., relying upon the ratio of Sunil Fulchand Shah vs. Union of India, reported in 2000 LawSuit(SC) 349 submits that grant of parole, in general terms, is an administrative action and, therefore, the validity of an administrative action cannot be questioned as long as the administrative action is not seen to be taken in violation of a policy reasonably, legally and rationally framed by the State and in the present case, the policy itself being reasonable and legal, there is no question of again testing the validity of the newly amended Rule 19(2).
15. Shri M.J. Khan, learned A.P.P., further submits that the Division Bench of this Court in the case of Pralhad Gajbhiye vs. State of Maharashtra and another, (supra) has observed that there is a difference between furlough and parole and held that furlough is a matter of right, whereas, parole cannot be claimed as a matter of right. ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 10/21 According to him, from this perspective, parole would have to be considered something as a concession given by the State creating no right in the prisoner and, therefore, the rationale of a concession unlike that of a right cannot be legally scrutinized.
16. In order to appreciate the points of arguments of both sides, it would be necessary for us to consider the latest provision of Rule 19(2) of the Rules 1959 and its legislative history. The amended Rule 19(2) has been inserted by a notification issued by the Home Department of the State of Maharashtra on 16th April, 2018. The legislative history till the year 2012 has already been succinctly dealt with by the Division Bench of this Court in the Case of Gajanan (supra).
17. Firstly, we would consider the latest amendments brought into force w.e.f. 16th April, 2018 by the State. This notification contains several amendments of which the amendments relevant here are those which relate to introduction of a new rule, Rule 1(A), and Rule 19, which substitutes the previous rule contained in Rule 19. New Rule 1(A) and new Rule 19 are reproduced thus :
Rule 1(A). Objectives :-
Furlough and the Parole leaves to inmates are progressive measures of correctional services. The objectives of releasing a prisoner on leave are :-
(a) To enable the inmate to maintain continuity with his family life and deal with family matters,
(b) To save him from evil effects of continuous prison life,
(c) To enable him to maintain and develop his self- confidence,
(d) To enable him to develop constructive hope and active interest in life."
Rule 19 : When a prisoner may be released on parole:-
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(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/sister 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/ spouse/son/daughter/brother/sister and by concerned Dy.I.G. for the reason of marriage of son/daughter/ brother/sister and the Authority 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) Prisoner shall be eligible for maximum of 45 days ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 12/21 of parole in a year which can be extended up to 60 days once in three years only under exceptional circumstances (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 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 releases 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 up to 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 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 up to 60 days once in three years only under exceptional circumstances.
18. It would be clear from the aforestated amended provision that now the principal Rules of 1959 have received what is called by the learned Senior Advocate "avowed objectives" or State proclaimed manifest objectives and also the reintroduction of proviso to Rule 19(2) ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 13/21 restraining seeking of multiple paroles in the same year except in case of death of nearest relative such as father/mother/spouse/son/daughter. The object sought to be achieved by the State is, in general terms, to offer a correctional service to a prisoner and, in specific terms, to enable the inmate maintain continuity with his family life, to deal with family matters, to get protection from humiliation of continuous prison life, to maintain and develop self confidence and finally to develop constructive hope and active interest in life. With these objectives in mind, a regular parole could be granted to a prisoner for such reasons as serious illness of father/mother/spouse/son/daughter, delivery of wife (except high security risk prisoner) and natural calamity. However, the proviso places an embargo upon grant of emergency or regular parole twice or multiple times in one and the same year in which the first parole, regular or emergency, is granted, except in case of death of the nearest relative.
19. Now, if a regular parole could be granted once in an year to a prisoner for the reasons stated in clauses a,b, and c of Rule 19(2) and by way of an exception even multiple paroles in the same year can also be granted in case of death of the relative specified in clause a, there appears to be no reasonable basis for denying multiple paroles in the same year to an inmate upon a ground or contingency which could be stated to be falling in the same category of the contingency of death, founded upon a rationale that death is unforseen and beyond human control. If death transcends boundaries of human effort and intelligence, ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 14/21 so do the catastrophes, grievous illnesses and afflictions. In order to effectively meet these grave situations a family would require amidst it presence of a responsible member to support it, to take suitable decisions, to ward off the disaster or the evil. If a family already has some such person within it, apart from the prisoner, the family could at least hope for a better day. But, when it has no such person with it and prisoner is the only responsible member on whom family counts for being taken out of troubled waters, we do not think second or multiple paroles could be denied to such prisoner, rather it's or their grant would be necessary to enable him to attain the objectives (a) and (d) specified in Rule 1(A) of the Rules, 1959. If multiple paroles are permissible to meet the contingency of death of a nearest relative, denying the same in another contingency which is of same genre, is unequal, arbitrary and unreasonable, when the denial is tested on the principle of it's rationale and nexus with the manifest objectives of these Rules. It would amount, in our opinion, to unreasonable classification amongst equally poised prisoners, arbitrariness, and denial of basic human dignity to prisoners, all antithetic to Articles 14 and 21 of the Constitution of India. Our Constitutional philosophy as propounded by Hon'ble Supreme Court in a consistent line of it's judgments, to cite a few, (i) AIR India vs. Nargesh Mirza and others, reported in AIR 1981 SC 1829, (ii) Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others reported in (1991)1 SCC 212, (iii) Maneka Gandhi vs. Union of India (1978)1 SCC 248 and ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 15/21
(iv) Sunil Batra vs. Delhi Administration and others (supra), would enlighten us that non-arbitrariness and reasonableness pervade Articles 14 and 21 as if they have "brooding omnipresence" in them and so the laws and the delegated legislations must remain in deference to them. Rule of equality and rule of equal protection of law are based upon the principle suggested by phrase "Like is treated alike" and so, equals are to be treated equally while unequals are to be protected against the powerful equals by giving them special treatment. Arbitrariness and unreasonableness strike at the roots of Articles 14 and 21.
20. In the case of State of Haryana and another vs. Jai Singh, reported in AIR 2003 SC 1696 relied upon by the learned A.P.P., while examining validity of notification of State Government granting benefit of remission to all convicts except those excluded in the notification, the Hon'ble Apex Court held that the distinction made between two categories of offences, serious and non-serious, is reasonable and based upon a rationale differentia related to the nature of punishment prescribed for these two categories of offences. Referring to the observations made in the earlier case of Maru Ram etc. vs. Union of India and another, reported in 1981(1) SCR 1196, the Hon'ble Apex Court, laid emphasis upon the logic behind the differenciation made rather than the wisdom of the legislature in making it, when it observed in paragraph 9 as under :
"The logic is lucid although its wisdom, in the light of penological thought, is open to doubt. We ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 16/21 have earlier stated the parameters of judicial restraint and, as at present advised, we are not satisfied that the classification is based on an irrational differentia unrelated to the punitive end of social defence. Suffice it to say here, the classification, if due respect to Parliament's choice is given, cannot be castigated as capricious enough to attract the lethal consequence of Article 13 read with Article 14."
21. According to learned A.P.P. what is required to be seen here is the logic of the amended provision and not the wisdom of the authority making the subordinate legislation and if it is seen, he further submits, the differenciation could not be considered to be irrational. With due respect, it must be said, we are not questioning here the wisdom of the authority but the logic adopted by the authority in making the classification in the subordinate legislation. At the cost of repetition, we would state here that the logic which permits second or subsequent parole for death contingency would be equally applicable to antoher contingency of same nature as it is seen to be informed by the same elements of unforseenness and need for maintaining continuity with life and to not lose hope in life. So, according to us, the ratio of Jaisingh (supra) as well as Maru Ram (supra) support the view that we have taken here that what is permissible is classification based upon the rationale differentia and not irrational differentia. Similar is the law laid down in the case of State of Madras vs. V.G. Row, reported in AIR 1952 SC 196, relied upon by the learned A.P.P.
22. There is another catch in the proviso to the amended ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 17/21 provision of Rule 19(2). This proviso while prohibiting second or third or multiple paroles in one and the same year except in case of death of the nearest relative allows extension of parole already granted. Sub- clause (iii) to Clauses (A),(B) and (C) each lays down that the prisoner shall be eligible for a maximum of 45 days of parole in a year which can be extended upto 60 days once in 3 years only under exceptional circumstances. Conditions governing grant of extension of parole apart, what is important is the provision made for seeking extension upto 60 days in the same year. If a prisoner being on parole can seek extension of the period of parole leave, one does not understand why he could not avail of second parole in the same year if another grave contingency of similar nature as death occurs. This is an anomaly which affects in an unreasonable manner the basic human right of a prisoner to lead life with dignity as recognized by the Hon'ble Apex Court in the cases of Navtej Singh Johar and others vs. Union of India (supra), Sunil Batra vs. Delhi Administration (supra). The effect of this proviso is denial of a dignified treatment to an inmate in an arbitrary and unreasonable manner as well as giving of discriminatory treatment to an equally situated prisoner and according to us, this is the additional reason to say that the proviso so introduced by the notification dated 16 th April, 2018 apparently violates Articles 14 and 21 of the Constitution of India.
23. Learned A.G.P. has also relied upon the case of Sunil Fulchand Shah vs. Union of India (supra) to buttress his point that the ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 18/21 action for grant of parole is generally an administrative action and, therefore, it is beyond the challenge based upon the violations of Articles 14 and 21 and in such a case, the affected inmate can at the most approach the State Government for redressal of his grievance. In our humble opinion, the case of Sunil Shah does not deal with a challenge made to an administrative action on constitutional grounds and, therefore, in our respectful submission, this case, would render no assistance to the learned A.P.P. to successfully demonstrate his point of view.
24. In the case of Gajanan, the Division Bench of this Court has briefly delineated the legislative history of a similar proviso as it stood on the basis of 2012 amendment. The proviso in question now is no different and it presently forms, a part of Rule 19 by virtue of notification dated 16th April, 2018. So, we can be profited from the observations of the Division Bench. The Division Bench has noted that the Rules, 1959 framed by State Government in exercise of its powers under Section 59 of the Prisons Act, 1894 initially did not contain any such proviso and it came to be introduced in the year 1989 or to be precise on 21.11.1989. It was in the same form as it is now, as could be seen from its re-production in the judgment of the Division Bench. The Division Bench found that w.e.f. 7.2.2007 this proviso was deleted and again by virtue of notification dated 23.2.2012, it was reinserted and in the same form. The Division Bench considered the vires of this proviso re-introduced ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 19/21 w.e.f. 23.2.2012 in the light of challenge made to it as being violative of only Article 21 of the Constitution of India. The State Government stood by the side of the proviso and in order to prove its rationale, necessity and reasonableness, it contended that the provision was a logical step to prevent the gross misuse of the provision relating to grant of leave in the nature of parole. The State Government also placed on record some material in the form of an affidavit with a chart appended to it. This was to empirically prove its submission that the provision relating to parole leave had been grossly misused by the inmates. It was in this context that the Division Bench, in Gajanan held that valid circumstances existed so as to compel the State Government to look into the matter and reintroduce the proviso with a view to place a reasonable restriction on the right of the prisoner to be released on parole.
25. Following such line of reasoning, it was held in Gajanan that the proviso introduced to Rule 19 by notification dated 23.2.2012 could not be stated to be resulting in breach of the provisions of Article 21 of the Constitution of India and, therefore, the challenge was rejected. But, now the challenge made has a new context provided by avowed objectives, new circumstances created by change in stand of the Government twice and new perspective provided by a question raised over unequal treatment and ignorance of right to lead life with dignity falling within the purview of Articles 14 and 21. All these factors were not present when validity of 2012 rule was upheld in Gajanan. These are ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 20/21 the distinguishing circumstances and grounds which in our opinion would require reconsideration of Gajanan and these are the very factors also which have made us arrive at an opinion which we have expressed in the previous paragraphs. So the the judicial discipline would make us believe that it is necessary that the issue involved herein deserves to be referred to a larger Bench for its resolution finally.
26. Of course, in the case of Satish Shankarrao Shinde (supra) another Division Bench of this Court at Aurangabad has found no substance in the challenge made to the vires sub-Rule (2-a) of Rule 19. In our respectful submission, the decision having been based upon a challenge made in general terms and making no reference to the manifest objectives contained in Rule 1(A), would also require reconsideration by a larger Bench.
27. Then there is another dimension involved in the matter. In the case of Pralhad Gajbhiye it has been held by the Division Bench of this Court that while furlough is a matter of right, parole cannot be claimed as a matter of right. If parole cannot be claimed as a matter of right then it would be also necessary for us to know as to what is the basic characteristic of "parole". Whether it is a concession offered by the State or merely an administrative action of the State taken as per the extant administrative policy ? If it is none of this, especially when examined in the light of the objectives stated in Rule 1(A) and right of a prisoner to lead life with dignity, could it be still categorised as a special right given ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 ::: J-cwp1046.18.odt 21/21 to prisoner in special circumstances ? In our view, answer to this paradox is required.
28. In view of above, we are of the opinion that the challenges raised in this petition need to be referred for their resolution to a larger Bench on the basis of questions as follows :
i) Whether parole is a right or a concession offered by the State or a mere administrative decision of the State dictated by its administrative policy or a special right of a prisoner in special circumstances or some thing else ?
ii) Whether proviso to Rule 19(2) introduced in terms of notification dated 16 th April, 2018 is violative of Article 14 and Article 21 of the Constitution of India and if yes, what treatment must it be given ?
29. Accordingly, we direct the registry to place the matter before the Hon'ble the Chief Justice of the High Court with a request for placing the reference before the appropriate larger Bench for answers.
30. Meanwhile, we grant liberty to the petitioner to apply afresh for seeking leave of furlough or parole on new grounds and if such an application is made, the respondent shall decide the same as expeditiously as possible in accordance with Rules, 1959.
JUDGE JUDGE
wadode
::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 14:07:28 :::