Bombay High Court
Shaikh Ali S/O. Shaikh Umar (C-6537) vs The State Of Maharashtra And Others on 7 February, 2019
Author: R.G. Avachat
Bench: S.S. Shinde, R.G. Avachat
Cri.WP.33-2019 and ors.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.33 OF 2019
Mohammad Moin s/o. Faridullah Qureshi,
Age : 43 years, Occ. Prisoner,
Convict No.C-7786,
Central Prison, Harsul,
Aurangabad ..Petitioner
Vs.
1. State of Maharashtra,
Through its Principal Secretary,
Home Department,
Mantralaya,
Mumbai - 32
2. The Deputy Inspector General
of Police (Prison),
Central Prison, Harsul,
Aurangabad
3. The Superintendent of Prison,
Central Prison, Harsul,
Aurangabad
4. Smt. Swati Sathe,
Deputy Inspector General
of Police (Prison),
Central Prison, Yeroda, Pune ..Respondents
WITH
CRIMINAL WRIT PETITION NO.136 OF 2019
Niyaz Ahmed s/o. Iqbal Ahmed Shaikh,
Age : 56 years, Occ. Prisoner,
Convict No.C-6513,
Central Prison, Harsul,
Aurangabad ..Petitioner
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Vs.
1. State of Maharashtra,
Through its Principal Secretary,
Home Department,
Mantralaya,
Mumbai - 32
2. The Deputy Inspector General
of Police (Prison),
Central Prison, Harsul,
Aurangabad
3. The Superintendent of Prison,
Central Prison, Harsul,
Aurangabad
4. Smt. Swati Sathe,
Deputy Inspector General
of Police (Prison),
Central Prison, Yeroda, Pune ..Respondents
WITH
CRIMINAL WRIT PETITION NO.137 OF 2019
Shaikh Ali s/o. Shaikh Umar,
Age : 56 years, Occ. Prisoner,
Convict No.C-6537,
Central Prison, Harsul,
Aurangabad ..Petitioner
Vs.
1. State of Maharashtra,
Through its Principal Secretary,
Home Department,
Mantralaya,
Mumbai - 32
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2. The Deputy Inspector General
of Police (Prison),
Central Prison, Harsul,
Aurangabad
3. The Superintendent of Prison,
Central Prison, Harsul,
Aurangabad
4. Smt. Swati Sathe,
Deputy Inspector General
of Police (Prison),
Central Prison, Yeroda, Pune ..Respondents
----
Mr. M.M.Chaudhari, Advocate for petitioners
Mr. D.R.Kale, APP for respondents
----
CORAM : S.S. SHINDE AND
R.G. AVACHAT, JJ.
RESERVED ON : JANUARY 25, 2019
PRONOUNCED ON : FEBRUARY 07, 2019
ORDER (Per R.G. AVACHAT, J.) :
These three Writ Petitions are decided by this common order since the challenge therein is to the orders passed by respondent no.4 on 15.12.2018, refusing to release the petitioners on furlough, and thus, common question of facts and law arise in these petitions.
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2. Heard Mr.Chaudhari, learned Counsel appearing on behalf of the petitioners and Mr.Kale, learned APP for the respondents.
3. Mr.Chaudhari, learned Counsel appearing on behalf of the petitioners submits that the petitioners have been undergoing life sentence. They have been released on furlough/parole many a times before the impugned orders were passed. The petitioners preferred applications for their release on furlough on various grounds such as ailment of mother, etc. Respondent no.4 turned down the applications mainly on the ground that the petitioners are convicts of bomb-blast case. According to learned Counsel, the conduct of the petitioners is very good. On their release on furlough on earlier occasions, they had returned to jail on the dates on which their furlough period was over. The petitioners did not jump the furlough/parole nor have they breached any of the conditions imposed for their release on furlough. ::: Uploaded on - 07/02/2019 ::: Downloaded on - 08/02/2019 05:40:56 :::
5 Cri.WP.33-2019 and ors Learned Counsel, ultimately, urged for grant of these petitions.
4. Mr.Kale, learned APP, would, on the other hand, submit that the Prisons (Bombay Furlough and Parole) Rules, 1959 ("the Rules", for short), have been recently amended. Amended Rule 4(13) thereof creates a bar for release of prisoner on furlough, who has been convicted of a case under Terrorist and Disruptive Activities (Prevention) Act ("TADA", for short). According to learned APP, the concerned police station has also expressed reservations for release of the petitioners on furlough. Learned APP relied on the judgment of this Court in the case of Bashir Ahmed Usman Gani Kairullah Vs. The State of Maharashtra and ors. (Criminal Writ Petition No.3988 of 2017) decided on 07.08.2018, to ultimately urge for rejection of the petitions.
5. The aims and objects of the scheme behind grant of parole and furlough are as under :- ::: Uploaded on - 07/02/2019 ::: Downloaded on - 08/02/2019 05:40:56 :::
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(i) To enable the inmate to maintain continuity with his family life and deal with the family matters;
(ii) To save the inmate from the evil effects of continuous prison life;
(iii) To enable the inmate to maintain constructive hope and active interest in the life.
Furlough is to enable the prisoner to have family association and to avoid ill-effects of continuous prison life. In other words, a prisoner is accorded social interaction, man being a social animal. Social life is brought into existence periodically for a prisoner by providing furlough.
6. Admittedly, the petitioners are the convicts of Mumbai Bomb-blast case. They have been undergoing life sentence. They have undergone little over 24 years of imprisonment, on the date of their ::: Uploaded on - 07/02/2019 ::: Downloaded on - 08/02/2019 05:40:56 ::: 7 Cri.WP.33-2019 and ors applications for furlough. All the petitioners had been released on furlough/parole number of times. They had returned to jail on the dates on which their furlough period was over. It is not the case of the respondents that the petitioners have ever jumped the furlough/parole or breached any of the conditions imposed for their such release.
7. The petitioner in Criminal Writ Petition No.33 of 2019, sought for forlough as his 70 years old mother has not been keeping well. The applications of the petitioners have been turned down mainly on the ground of the concerned police station having expressed reservations for their release on furlough and as newly amended Rule 4(13) of the Rules creates a bar for release of the prisoners on furlough, who have been sentenced in a case under TADA.
8. Whether the newly amended Rules would have retrospective operation, is a question pending for ::: Uploaded on - 07/02/2019 ::: Downloaded on - 08/02/2019 05:40:56 ::: 8 Cri.WP.33-2019 and ors decision by a Full Bench of this Court. It is also true that the Divison Bench of this Court in the case of Bashir Ahmed (Supra), has refused to enlarge the petitioner therein on furlough.
9. However, the Apex Court in the case of Asfaq Vs. State of Rajasthan and other, (2017) 15 SCC 55 has observed thus :-
"17. From the aforesaid discussion, it follows that amongst the various grounds on which parole can be granted, the most important ground, which stands out, is that a prisoner should be allowed to maintain family and social ties. For this purpose, he has to come out for some time so that he is able to maintain his family and social contact. This reason finds justification in one of the objectives behind sentence and punishment, namely, reformation of the convict. The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the ::: Uploaded on - 07/02/2019 ::: Downloaded on - 08/02/2019 05:40:56 ::: 9 Cri.WP.33-2019 and ors culprit are: deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, albeit for (sic short) periods. These gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners.
They are ultimately aimed for the good of the society and, therefore, are in public interest."
Moreover, the Apex Court in the case of Mohammed Shamsuddin Vs. the State of Rajasthan and ors., Writ Petition (Criminal) No.235/2018, has directed release of the petitioner, convict of a bomb-blast case, therein on furlough. ::: Uploaded on - 07/02/2019 ::: Downloaded on - 08/02/2019 05:40:56 :::
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10. In view of the the Apex Court's observations in the case of Asfaq (supra) and in the facts and circumstances of the present matters, namely, the petitioners had been enlarged on forlough/parole number of times hereinbefore, we are inclined to allow the petitions in the following terms :-
(i) All the Writ Petitions are allowed.
(ii) The impugned orders passed by respondent no.4 are set aside.
(iii) Respondent no.4 is hereby directed to release the petitioners on forlough for a period of (28) days on usual conditions.
(iv) The petitioners are directed to report at the concerned police station on alternate day between 4.00 p.m. and 5.00 p.m., during the period of their release on furlough.
[R.G. AVACHAT, J.] [S.S. SHINDE, J.] kbp ::: Uploaded on - 07/02/2019 ::: Downloaded on - 08/02/2019 05:40:56 :::