Rajasthan High Court - Jaipur
Abre Rehmat Ansari S/O Noor Mohammed ... vs The State Of Rajasthan ... on 17 October, 2024
Bench: Inderjeet Singh, Bhuwan Goyal
[2024:RJ-JP:43489-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Writ Petition (Parole) No. 574/2024
Abre Rehmat Ansari S/o Noor Mohammed Ansari, R/o Village
Dhaorahra Post Digha, Police Station Kotwali, Distt. Khalilabad,
Santkabir Nagar, (U.p.) (At Present Confined In Central Jail, Jaipur
(Raj.), Through His Wife - Smt. Ameekunnisha W/o Abre Rehmat,
Aged About 52 Years R/o Village Dhaorahra Post Digha, Police Station
Kotwali, Distt. Khalilabad, Santkabir Nagar (U.p.)
----Petitioner
Versus
1. The State Of Rajasthan, Through The Secretary Home,
Secretariat, Jaipur (Raj.).
2. The Union Of India, Through The Ministry Of Home Affairs,
Govt. Of India, Is-Ii, Division/legal Cell, 2Nd Floor, Dhyan
Chand National Stadium, Near India Gate, New Delhi.
3. Superintendent Central Jail, Jaipur (Raj.).
----Respondents
Connected With
D.B. Criminal Writ Petition (Parole) No. 739/2023
Asfaq S/o Shri Abdul Aziz, R/o Lalsot Road, Oppsite Purana Cinema
Hall, Near Bank Of India, Dausa (Raj.) (At Present Confined In Central
Jail Jaipur) Through His Son Farookh Khan Son Of Shri Asfaq Aged
About 28 Years, R/o Lalsot Road, Opposite Purana Cinema Hall, Near
Bank Of India, Dausa Rajasthan
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary (Home),
Govt. Of Rajasthan.
2. The Director General of Prisons Directorate Prisons, Ghatgate,
Jaipur (Raj.)
3. Superintendent Central Jail, Jaipur (Raj.)
4. The Union of India through The Ministry of Home Affairs, Govt.
of India, IS-II, Division/Legal cell-1, 2nd Floor, Major Dhayan
Chand National Stadium, Near India Gate, New Delhi.
----Respondents
D.B. Criminal Writ Petition (Parole) No. 401/2024
Mohammad Afaq S/o Shri Mohammad Maqsood, R/o House No.
335/164, Mahmood Nagar Chok, Lucknow (U.p.), Present Address -
401/79, Baradari, Chaupatiya, Police Station Saadat Ganj, District
Lucknow (U.p.), (At Present Confined In Central Jail, Jaipur (Raj.),
Through His Brother - Mohammad Arshad S/o Shri Mohammad
Maqsood, Aged About 53 Years, R/o 401/79, Baradari, Chaupatiya,
Police Station Saadat Ganj, Lucknow (U.p.).
----Petitioner
Versus
1. The State Of Rajasthan, Through The Secretary Home,
Secretariat, Jaipur (Raj.).
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[2024:RJ-JP:43489-DB] (2 of 16) [CRLW-574/2024]
2. The Union Of India, Through The Ministry Of Home Affairs.
3. Superintendent Central Jail, Jaipur (Raj.)
----Respondents
D.B. Criminal Writ Petition (Parole) No. 666/2024
Fazlur Rehman Sufi @ Shamim S/o Abdul Rehman Sufi, R/o 54/b 2Nd
Floor, Room No. 42, Hingwala Building, Meghraj Sethi Marg, Mumbai,
400011 (Maharashtra), (At Present Confined In Central Jail Jaipur,
Rajasthan Through His Wife Ashrafi Anisa Fazlur Rehman W/o Fazlur
Rehman Sufi, Aged About 60 Years, R/o 54/b 2Nd Floor, Room No. 42,
Hingwala Building, Meghraj Sethi Marg, Mumbai, 400011
(Maharashtra),
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary Home, Secretariat,
Jaipur (Raj.)
2. The Union Of India, Through The Ministry Of Home Affairs,
Govt. Of India, Is-Ii, Division/legal Cell, 2Nd Floor, Dhyan
Chand National Stadium, Near India Gate, New Delhi
3. Superintendent Central Jail, Jaipur (Raj.)
----Respondents
D.B. Criminal Writ Petition (Parole) No. 805/2024
Dr. Jalees Ansari S/o Late Shri Shafiullah, R/o Room No. 36, 2Nd Floor,
Mominpura B.i.t. Chawl, M.s. Ansari Marg, Mumbai, Pin Code -
400011, Maharashtra, At Present Confined In Central Jail, Ajmer,
Rajasthan. Through His Son - Zaid Ansari S/o Md. Jalees Ansari, R/o
Room No. 36, 2Nd Floor, Mominpura B.i.t. Chawl, M.s. Ansari Marg,
Mumbai, Pin Code - 400011, Maharashtra.
----Petitioner
Versus
1. The State Of Rajasthan, Through Public Prosecutor
2. The Superintendent, Central Jail Jaipur, Fateh Tibba, Adarsh Nagar, Jaipur - 302007.
3. Union Of India, Through The Ministry Of Home Affairs, Government Of India, New Delhi.
----Respondents For Petitioner(s) : Mr. Tekchand Swami Mr. Harshit Sharma Mr. Mujahid Ahmad through V.C. For Respondent(s) : Mr. R.D. Rastogi, ASG Mr. Anand Sharma (CGPC) Mr. Chandra Shekhar Sinha (CGPC) Mr. Sumit Teterwal (CGPC) Ms. Kanika Wadhwani Mr. Mahendra Pratap Singh for UOI Mr. Sudesh Kumar Saini, Addl. G.A. (Downloaded on 19/10/2024 at 11:52:01 PM) [2024:RJ-JP:43489-DB] (3 of 16) [CRLW-574/2024] HON'BLE MR. JUSTICE INDERJEET SINGH HON'BLE MR. JUSTICE BHUWAN GOYAL Order 17/10/2024
1. These Criminal Writ Petitions (Parole) have been filed by the accused-petitioners with the prayer for releasing them on regular paroles for a period of forty days.
Case No. Name of Age Custody Regular
Accused- Period Parole
petitioner
D.B. Crl.W. Abre Rehmat 57 years More than 26 4th Parole No.574/2024 Ansari years D.B. Crl.W. Asfaq 61 years More than 30 3rd Parole No.739/2023 years D.B. Crl.W. Mohammad 55 years More than 30 4th Parole No.401/2024 Afaq years D.B. Crl.W. Fazlur 65 years More than 30 4th Parole No.666/2024 Rehman Sufi years @ Shamim D.B. Crl.W. Dr. Jalees 66 years More than 30 3rd Parole No.805/2024 Ansari years
2. It is contended by counsel for the accused-petitioners that the accused-petitioners were earlier granted regular paroles either by the Hon'ble Supreme Court or by this Court. Counsel further submits that after availing all the paroles, they surrendered themselves before the concerned jail authorities within the stipulated time and have not misused the liberty of paroles earlier granted to them. Counsel further submits that jail conduct of the accused-petitioners has been found satisfactory and rejection of their parole application by the Parole Advisory Committee is without application of mind. Counsel further submits that all the petitioners have served the sentences for a period of more than (Downloaded on 19/10/2024 at 11:52:01 PM) [2024:RJ-JP:43489-DB] (4 of 16) [CRLW-574/2024] 30 years and petitioner namely Abre Rehmat Ansari has served a sentence for a period of more than 26 years. Counsel further submits that the Hon'ble Supreme Court in the matter of one of the petitioner namely Fazlur Rehman Sufi @ Shamim Vs. State of Rajasthan & Ors. in Criminal Appeal No.340/2019 (arising out of S.L.P. No.11056/2018) has allowed the parole relying upon the judgment laid down by the Hon'ble Supreme Court in Asfaq Vs. State of Rajasthan & Ors. (2017) 15 SCC 55 decided on 22.02.2019 which is reproduced here as under:-
"Heard learned counsel for the parties. Leave granted.
The appellant had applied for parole which was rejected by the Jail Authorities against which a writ petition was filed which was dismissed by the High Court.
No doubt the appellant is convicted for the offence under the provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987 ("TADA Act"). However, it is also a fact that the appellant has undergone more than 24 ½ years of imprisonment.
In these circumstances, having regard to the law laid down by this Court in Asfaq vs. State of Rajasthan & Ors., (2017) 15 SCC, we are of the opinion that the appellant shall be released on parole for a period of 21 days from the date of release on the condition that he shall report to the Station House Officer of the concerned Police Station on every third day.
The appeal is, accordingly, disposed of. Pending applications, if any, shall also stand disposed of."
3. Counsel further submits that the petitioners (namely Fazlur Rehman Sufi @ Shamim, Abre Rehmat Ansari, Mohammad Afaq & Dr. Jalees Ansari) were granted 2nd/3rd paroles by the Co-ordinate Bench of this Court passed in D.B. Criminal Writ Petition No.320/2022 titled as Fazlur Rehman Sufi @ Shamim Vs. (Downloaded on 19/10/2024 at 11:52:02 PM) [2024:RJ-JP:43489-DB] (5 of 16) [CRLW-574/2024] State of Rajasthan & Ors. and other connected writ petitions vide order dated 09.02.2023 which is reproduced here as under:-
"1. The petitioners, who are convicted under the TADA Act and whose conviction has been upheld uptil the Supreme Court, have filed these parole applications. The petitioner - Fazlur Rehman Sufi @ Shamim has challenged Rules 6(4), 11(3) & 16(2)(c) of the Rajasthan Prisoners Release on Parole Rules, 2021 (hereinafter referred to as "the Rules of 2021") and the other petitioners have simply filed the parole applications seeking parole.
2. It is contended by learned counsel for the petitioners that the petitioners were earlier granted parole by the Apex Court and some of the petitioners were thereafter granted parole by the High Court placing reliance on the judgment of the Supreme Court in Asfaq Versus State of Rajasthan & Ors.: (2017) 15 SCC 55. It is argued that the Rules of 2021, which have been framed by the State, are not in compliance with the directions given by the Apex Court in Asfaq case (supra). It is also argued that the law laid down by the Supreme Court becomes the law of the land and any Rule, which is framed contrary to the law laid down by the Supreme Court, is ultra-vires the Constitution. Learned counsel for the petitioners has read over the judgment of Asfaq case.
3. Reliance is placed on the judgments in Mohammed Amin Versus The State of Rajasthan & Ors.: W.P. (Crl.) No.158 of 2018, Mohammed Shamsuddin Versus State of Rajasthan & Ors.: W.P. (Crl.) No.235 of 2018, Fazlur Rehman Safi @ Shamim Versus State of Rajasthan & Ors.: Criminal Appeal No.340 of 2019, Abre Rehmat Ansari Versus State of Rajasthan & Ors.: W.P. (Crl.) No.284 of 2018, Mohammad Afaq Khan Versus State of Rajasthan & Ors.: W.P. (Crl.) No.250 of 2018, Mohd. Aijaz Akbar Versus State of Rajasthan & Ors.: W.P. (Crl.) No.186 of 2019, Mohammed Moin Faridulla Qureshi Versus State of Maharashtra & Ors.: Criminal Writ Petition No.213 of 2009, Mohammed Moin Versus State of Maharashtra & Ors.: Criminal Writ Petition No.446 of 2018, Mohammed Moin Versus State of Maharashtra & Ors.: Criminal Writ Petition No.33 of 2019, Mohd. Eqbal Mohd. Hanif Shaikh Versus State of Maharashtra (Downloaded on 19/10/2024 at 11:52:02 PM) [2024:RJ-JP:43489-DB] (6 of 16) [CRLW-574/2024] & Ors.: Criminal Writ Petition No.310 of 2020, Manga @ Manga Singh Versus State of Punjab & Ors.: CRWP No.4953 of 2020, Mrs. T. Arputham Versus The State of Tamil Nadu & Ors.: Writ Petition No.8642 of 2020, Habib Ahmed Khan Versus State of Rajasthan & Ors.:
D.B. Criminal Writ Petition (Parole) No.700 of 2018, Pappu @ Salim Versus State of Rajasthan & Ors.: D.B. Civil Writ Petition No.16042 of 2017, Pappu @ Salim Versus State of Rajasthan & Ors.: D.B. Criminal Writ Petition (Parole) No.186 of 2019, Pappu @ Salim Versus State of Rajasthan & Ors.: D.B. Criminal Writ Petition No.102 of 2020, Daya Singh Lathoriya Versus State of Rajasthan & Ors.: D.B. Criminal Writ Petition No.533 of 2020, Fazlur Rehman Sufi @ Shamim: D.B. Criminal Writ Petition No.515/2020 & its connected petitions and Mohd. Aejaz Akbar Versus State of Rajasthan & Ors.: D.B. Criminal Writ Petition No.438/2021 & its connected petitions. Reliance is also placed on Hitesh @ Bavko Shivshankar Dave Versus State of Gujarat: Writ Petition (Criminal) No.467 of 2022 decided by the Apex Court on 24.01.2023.
4. It is argued by counsel for the petitioners that the petitioners have earlier been given benefit of parole, they have surrendered in due time and they are not involved in any other offence. It is also argued that their conduct in jail is satisfactory and there is no reason why they should be denied parole. It is further argued that the basic purpose of parole is to ensure that the convict gets an opportunity to reform himself, maintain his social relations and develop a positive attitude towards life.
5. Learned Advocate General and learned Additional Solicitor General have opposed the parole applications, more particularly the challenge to Rules 6(4), 11(3) and 16(2)(c) of the Rules of 2021. It is argued that the Rules can be set aside by the Courts only on two grounds; first, if they are not within the legislative competency of the State. Our attention is drawn towards Schedule-VII- of Constitution wherein prisons fall under the State list. It is argued that the other ground on which the Rules can be set aside, is the same being ultra-vires the Constitution or infringing the rights under Articles 14 and 21 of the Constitution of India.
6. It is contended by the learned Advocate General that in Asfaq judgment, it was observed (Downloaded on 19/10/2024 at 11:52:02 PM) [2024:RJ-JP:43489-DB] (7 of 16) [CRLW-574/2024] by the Apex Court that the Rules of Central Government made in the year 1955 are skeleton in nature and therefore, the State should come up with appropriate Rules. The Apex Court, however, while deciding Asfaq case observed that certain conditions can be imposed by the State while framing the Rules.
7. It is argued that the petitioners are involved in terrorist act of bomb blasts and any rule putting restrictions on parole for terrorist acts, cannot be said to be ultra-vires the Constitution. It is also contended that the State has all the rights to restrict the movement of those involved in terrorist activities. It is further contended that for those who are convicted under TADA Act, even their sentence cannot be shortened. It is argued that the challenged Rules cannot be said to be violating anyone's rights as those involved in bomb blasts and terrorist acts cannot claim parole as a right. It is also contended that the Rules of 2021 do not prohibit or completely ban the grant of parole. In cases of grave illness of the applicant or his spouse, parents or children, the convict is entitled to avail parole.
8. A query was put by the Court as to why parole cannot be granted in case of demise of the spouse, parent or children, to which learned Additional Solicitor General contends that the Rules have to be read harmoniously and if a convict is entitled to parole on the ground of grave illness, it would imply that he would also be entitled to parole in case of demise of spouse, parents or children.
9. Learned Advocate General has placed reliance on Atbir Versus State of NCT of Delhi: Criminal Appeal No.714 of 2022 decided by the Apex Court on 29.04.2022 wherein the Apex Court has observed that if the convict is to undergo the sentence for whole of his natural life, any cause or event may not give him any right to claim parole. Learned Advocate General has also placed reliance on The Home Secretary (Prison) & Ors. Versus H. Nilofer Nisha: (2020) 14 SCC 161 wherein the Apex Court observed that "the grant of remission or parole is not a right vested with the prisoner. It is a privilege available to the prisoner on fulfilling certain conditions. This is a discretionary power which has to be exercised by the authorities conferred with such powers under the relevant rules/Regulations. The court cannot exercise these powers though once the powers are exercised, the Court may hold that (Downloaded on 19/10/2024 at 11:52:02 PM) [2024:RJ-JP:43489-DB] (8 of 16) [CRLW-574/2024] the exercise of powers is not in accordance with rules."
10. With regard to the argument that the petitioners have been earlier given parole by the Apex Court and later parole has been granted by the High Court, it is argued that the Supreme Court under Article 142 of Constitution may make such orders as are necessary for doing complete justice in any case. It is argued that such power is not available to the High Courts. Reliance in this regard is placed on State of Punjab & Ors. Vs. Surinder Kumar & Ors. AIR 1992 SC 1593. It is also argued that if the Parole Rules put restrictions on the grant of parole, then the High Court cannot go beyond the Rules unless the High Court set aside the Rules being ultra-vires the Constitution. It is further argued that even if, the Supreme court has granted the parole, that was prior to coming of the new Parole Rules. There being a specific bar in the Rajasthan Prisoners Release on Parole Rules, 1958, the same should be considered to be an order for doing complete justice under the power conferred upon the Supreme Court under Article 142 of the Constitution of India. It is contended that there being a specific bar under the new Parole Rules as well as old Parole Rules, the judgment delivered in Hitesh (supra) also cannot be applied to the facts of the present case, as even on the date of conviction, as per the then prevalent old Parole Rules, a convict under the TADA Act was not entitled to any parole throughout his life, except in case of grave illness of the convict, his parents, children or spouse.
11. It is contended by the learned Advocate General that in the present Parole Rules of 2021 also, in emergent cases pertaining to grave illness, which is life threatening, a convict is entitled to be released on parole. The illness may be of the convict himself, his spouse, parents or children. It is argued that the State has all the rights to put restrictions on release of a convict on parole and the law cannot be said to be violative of Articles 14 or 21 of the Constitution of India.
12. We have considered the contentions and have gone through the judgments referred to by the counsel for the parties.
13. We have to now analyse whether the Rules 6(4), 11(3) & 16(2)(c) of Rules of 2021 are ultra-vires the Constitution or whether they are (Downloaded on 19/10/2024 at 11:52:02 PM) [2024:RJ-JP:43489-DB] (9 of 16) [CRLW-574/2024] contrary to the directions given by the Apex Court in Asfaq case (supra).
14. Before dealing with the validity of the Rules of 2021, it would be appropriate to quote the relevant Rules, the constitutional validity of which are under challenge:-
Rule 6-Disposal of parole
application:-
(4). A person sentenced to imprisonment of an offence under any law relating to matter to which the executive power of the Union extends shall not entitled for any kind parole, except suspension of sentence under sub-rule (3) of rule 11 of these rules.
Rule 11-Emergent cases:-
(3) Where a petition for suspension of the execution of a sentence of imprisonment or for remission of the whole or part of a sentence of imprisonment is made by or on behalf of a person sentenced to imprisonment of an offence under any law relating to matter to which the executive power or the Union extends and the person sentenced to an imprisonment is in jail, the execution of the sentence shall be suspended and such person released on parole, not exceeding fifteen days, if the Government of the State in which such person is detained in jail is satisfied that the immediate release of such person on parole is rendered necessary by reason of any illness constituting a grave threat to the life of such person or of a parent, wife husband or child of such person. Such prisoner shall not entitled for any other kind parole under these rule.
Rule 16-Ineligibility for release:-
(2) The following categories of prisoners shall not be eligible for release on parole:-
(c) Prisoners convicted under the
Unlawful Activities (Prevention)
Act, 1967 (Central Act No.37 of
1967).
The challenge to the validity of the Rules of 2021 on the ground of competence is not sustainable for the very reason that Schedule-
VII of the Constitution of India provides for the Union list i.e. list-I in which the Union can legislate; the State list i.e. list-II, in which only State can legislate and the Concurrent list i.e. list-III, in which both Union and State can legislate and the power to make law pertaining to State list rests with the State Government.
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15. Clause-4 of list-II State list reads as under:-
"Prisons, reformatories, Borstal institutions and other institutions of a like nature, and persons detained therein; arrangements with other States for the use of prisons and other institutions."
A bare perusal of Clause (4) of the State list, makes it evident that State can legislate for persons and prisons detained therein. The State is thus competent to frame rules in relation to the prisoners who are confined in the prisons. The main argument on which the validity of the Rules is challenged, is the judgment of the Apex Court in Asfaq Vs. State of Rajasthan and Ors. (2017) 15 SCC 55. The main crux of the arguments is that the judgment of the Apex Court being law, as laid down under Article 141 of Constitution would be binding on all Courts. Article 141 is reproduced here as under:-
"The Law declared by the Supreme Court shall be binding on all courts within the territory of India."
16. As to whether the judgment given in Asfaq Vs. State of Rajasthan is a law declared by the Supreme Court is to be seen. It is evident that Supreme Court in Asfaq's case (Supra) was dealing with the right of prisoners to avail parole. The Apex Court therein was dealing with a case of convicts convicted under the TADA Act. Para-26 of the judgment reads as under:-
"We find that the Rules of the Central Government, in this behalf, are of the year 1955, which are skeleton in nature. There is an imperative and immediate need for updating these Rules thereby including comprehensive provisions, in the light of the discussion contained above, incorporating the aforesaid and other principles so as to provide suitable guidelines to those who have to consider such applications for grant of parole. We are hopeful that this aspect shall be given due consideration at the appropriate level by the Government of India. For this purpose, a copy of this judgment may also be sent to the Ministry of Law & Justice, Government of India."
The Apex Court thus directed the Union to update the Rules and include comprehensive provisions and provide suitable guidelines to those who have to consider such applications for grant of parole. In pursuance of the directions of the Apex Court, fresh Rules have (Downloaded on 19/10/2024 at 11:52:02 PM) [2024:RJ-JP:43489-DB] (11 of 16) [CRLW-574/2024] been framed by the State of Rajasthan. It is evident to note that the Apex Court did not direct the Union to frame Rules in a particular fashion. The Apex Court itself had put a rider that unless a person has been convicted for committing a serious offence, the competent authority, while examining such cases, can be well advised to have stricter standards in mind while judging their cases on the parameters of good conduct, convict being habitual offender or while judging, whether he could be considered highly dangerous or prejudicial to the public peace and tranquility etc. The Apex Court was thus conscious of the fact that there may be certain offences and there may be certain persons who are considered to be highly dangerous or prejudicial to the public peace and tranquility and that is why it had itself put a rider in the Asfaq's case.
17. The State of Rajasthan while promulgating Rule 6 (4) of Rules of 2021 has provided that a person sentenced to imprisonment of an offence under any law relating to matter to which the executive power of the Union extends shall not be entitled for any kind of parole, except suspension of sentence under sub-rule (3) of Rule 11, which permits parole for convicts, if it is rendered necessary by reason of any illness constituting a grave threat to the life of such person or of parents, spouse or children of such person. Rule 16(2)(c) also provides a ban on release on parole for prisoners convicted under the Unlawful Activities (Prevention) Act, 1967.
18. The present is not a case under the Unlawful Activities (Prevention) Act, 1967 and hence, this Court in the present case is not inclined to enter into the question of constitutional validity of Rule 16(2)(c) and this is left open to be dealt with at the relevant time, if occasion so arises. It is evident that a person who is convicted under the TADA Act, is not entitled to remission and shortening of sentence and has to remain in jail till the end of his/her natural life. Thus, restrictions on parole can be put in by the State and the same cannot be said to be violative of Articles 14 and 21 of the Constitution for the very reason that certain offenders are to be dealt with separately and in those involved in bomb blasts and in terrorist activities cannot as a matter of right claim parole, as such persons are to be dealt with under the category of highly (Downloaded on 19/10/2024 at 11:52:02 PM) [2024:RJ-JP:43489-DB] (12 of 16) [CRLW-574/2024] dangerous or prejudicial to the public peace and tranquility.
19. In the Home Secretary (Prison) & Ors. Vs. H. Nilofer Nisha (Supra), the Apex Court held that grant of remission or parole is not a right vested with the prisoner. It is a privilege available to the prisoner on fulfilling certain conditions and it is a discretionary power which has to be exercised by the authorities, conferred with such powers under the relevant Rules/Regulations. It was also observed that the courts cannot exercise these powers, though once they are exercised, the Court may hold that the exercise of powers is not in accordance with Rules. Thus, parole as such is not a right vested with the prisoners and the State has all the powers to put reasonable restrictions and riders for prisoners convicted for offences against the Union and those falling in the domain of the executive power of the Union.
20. The said Rules can be in no way said to be contrary to the judgment of Apex Court in Asfaq Vs. State of Rajasthan (Supra). The direction given in the Asfaq's case was only to the effect that the Rules need to be framed, as such Rules of Central Government, 1955 was skeleton in nature. Now the Rules have been updated, the same being not violative of Articles 14 and 21 of the Constitution of India. The claim of the petitioner-Fazlur Rehman Sufi @ Shamim for quashing the Rules 6 and 11(3) of Rules, 2021 is without any basis and the prayer in this regard is declined.
21. In the impugned orders passed in D.B. Criminal Writ Petition Nos.320/2022 and 40/2022, the Authorities have mentioned that "Rule No.4 (13) of the Maharashtra Prisons (Bombay Parole and Furlough) Rules, 1959 and the Hon'ble High Court of Bombay's judgment, dated 25.04.2018 in Cr. WP No.1008/2018, wherein it is mentioned that prisoners convicted under terrorist activities are not eligible for furlough and regular parole."
22. A bare perusal of the above, reveals that the Authorities have not applied their mind and have passed a mechanical order without even ensuring the relevant provision applicable. The present petitioners in D.B. Criminal Writ Petition No.320/2022 and 40/2022 are in no way governed by the Maharashtra Prisons (Bombay Parole and Furlough) Rules, 1959 and thus, the impugned orders passed in the above (Downloaded on 19/10/2024 at 11:52:02 PM) [2024:RJ-JP:43489-DB] (13 of 16) [CRLW-574/2024] two writ petitions are bad in law, as the Authorities have not applied their mind in passing the same. On this ground, the impugned orders passed in D.B. Criminal Writ Petition Nos.320/2022 and 40/2022 deserves to be quashed and set aside.
23. Now coming to the prayer for grant of parole, it is not in dispute that all the petitioners have remained in custody for a period of more than 25 years. It is also not disputed that all have availed the parole granted by the Apex Court and thereafter, parole granted by the High Court and all the petitioners after availing parole surrendered within due time. It is further not in dispute that their jail record is satisfactory. In Asfaq's case (supra), the Apex Court was dealing with an accused who was convicted under the TADA Act and Apex Court held that the Rules of Central Government, 1955 were skeleton in nature and considering the custody period, granted parole to the convict in that case. Though when the petition was decided, it was brought to the notice of the Court that the custody period was less than ten years and therefore, the parole was rejected. However, immediately thereafter, an application was moved that the custody period is more than twenty years and the parole was granted.
24. In the matter of all the petitioners, parole was granted by the Apex Court. It is evident that considering the judgment of the Apex Court in Asfaq's case, parole has been granted in bomb blasts cases by different High Courts and parole has also been granted by Division Bench of this Court to the petitioners. In Hitesh @ Bavko Shivshankar Dave vs. State of Gujarat (Supra) decided by the Apex Court, it has been held that the date on which an accused is convicted is the relevant date for deciding the application pertaining to shortening of sentence. In the case in hand, the petitioners were convicted way back and their conviction was upheld by Apex Court much prior to the framing of the Rules of 2021. Thus, their case would be governed by the Rules of Central Government, 1955 and Rajasthan Prisoners Release on Parole Rules, 1958 would not apply to the petitioners as there was a clause in Rajasthan Prisoners Release on Parole Rules, 1958, that the Rules will not apply to the offences on which the executive power of the Union extends. Since (Downloaded on 19/10/2024 at 11:52:02 PM) [2024:RJ-JP:43489-DB] (14 of 16) [CRLW-574/2024] the Rules of Central Government, 1955 were held to be skeleton in nature, the parole granted by the Apex Court cannot be said to be an order passed under Article 142 of the Constitution of India as the order was not passed invoking Article 142 of Constitution to do complete justice, rather the order was passed considering the Central Rules, then prevalent as being skeleton in nature.
25. We are of the considered view that the case of the petitioners would be governed by the Rules of Central Government, 1955 and since under these Rules, parole has been granted to the petitioners by the Apex Court as well as by the High Court and they have surrendered before the Jail Authorities within the stipulated time and also that they have remained in custody for a period of more than 26 years, we deem it proper to allow the parole applications in D.B. Criminal Writ Petition Nos.320/2022, 40/2022, 231/2022 and 551/2022. However, in D.B. Criminal Writ Petition No. 320/2022, the prayer for quashing the Rules 6(4), 11(3) & 16(2)(c) of Rajasthan Prisoners Release on Parole Rules, 2021 is rejected.
26. Consequently, the Writ Petition No.320/2022 is partly allowed and Writ Petition Nos. 40/2022, 231/2022 and 551/2022 are allowed. The order of recommendation of the Parole Advisory Committee dated 04.04.2022, 10.09.2021, 04.04.2022 and 01.08.2022 are quashed. The Jail Authorities are directed to release the petitioner-Fazlur Rehman Sufi @ Shamim, Abrerehmat Ansari & Mohammad Afaq on third regular parole for a period of 40 days and petitioner-Jalees Ansari on second regular parole for a period of 30 days on furnishing of their personal bonds of Rs.50,000/- with one surety of like amount to the satisfaction of the Superintendent Central Jail, Jaipur with the stipulation that they shall surrender themselves before the Jail Authorities on the expiry of parole period and shall maintain peace and tranquility during parole period.
27. In case of failure to surrender by stipulated date, the Jail Authorities shall proceed in accordance with Law.
28. A copy of this order be sent to the Jail Authorities as well as the petitioners through Jail Authorities for compliance."
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4. Counsel further submits that the said order has not been challenged by the respondents before the Hon'ble Supreme Court.
Lastly, prayed that the petitioners be released on 3 rd/4th parole for a period of 40 days in view of the judgment passed by the Hon'ble Supreme Court as well as the Division Bench of this Court in the matters of Fazlur Rehman Sufi @ Shamim (supra).
5. Learned Additional Government Advocate as well as counsel for the respondents have vehemently opposed these criminal writ petition (parole) and submitted that according to the Rules, the petitioners are not entitled for parole and further prayed for the dismissal of these writ petitions (parole).
6. We have considered the contentions advanced by counsel for the parties and perused the material on record.
7. Considering the facts and circumstances of the present case, these criminal writ petition (Parole) filed by the accused-
petitioners deserve to be allowed for the reasons; firstly, the jail conduct of all the petitioners is satisfactory and no documentary evidence in support of adverse police report has been placed on record to deny the prayer for grant of regular paroles to the accused-petitioners; secondly, all the petitioners have surrendered themselves before the concerned jail authorities within the stipulated time and they have not misused the liberty of paroles earlier granted to them and lastly, in view of the judgment passed by the Hon'ble Supreme Court as well as the Division Bench of this Court in the matters of Fazlur Rehman Sufi @ Shamim (supra), we deem it just and proper to allow the present writ petitions (parole) and set aside the orders/recommendations (Downloaded on 19/10/2024 at 11:52:02 PM) [2024:RJ-JP:43489-DB] (16 of 16) [CRLW-574/2024] dated 20.02.2024, 06.09.2023, 20.02.2024, 20.03.2024 & 22.03.2024 qua the present accused-petitioners.
8. Criminal Writ Petitions (Parole) are accordingly allowed. The orders/recommendations dated 20.02.2024, 06.09.2023, 20.02.2024, 20.03.2024 & 22.03.2024 qua the present accused-
petitioners are quashed. The Jail Authorities are directed to release the petitioners - Abre Rehmat Ansari, Asfaq, Mohammad Afaq, Fazlur Rehman Sufi @ Shamim & Dr. Jalees Ansari on regular paroles for a period of forty days on each of them furnishing a personal bond in the sum of Rs.50,000/- with one surety of like amount to the satisfaction of the concerned Jail Authorities with the stipulation that they shall surrender themselves before the Jail Authorities on the expiry of the parole period and shall maintain peace and tranquility during the parole period.
9. In case of their failure to surrender by stipulated date, the Jail Authorities shall proceed in accordance with law.
10. Office is directed to send a copy of this order to the concerned Jail Authorities by fax today itself for necessary compliance.
(BHUWAN GOYAL),J (INDERJEET SINGH),J Sudeepak/64-68 (Downloaded on 19/10/2024 at 11:52:02 PM) Powered by TCPDF (www.tcpdf.org)