Bombay High Court
Sardar S/O. Shahvali Khan (C-6608) vs The State Of Maharashtra And Anr on 18 February, 2019
Author: R.G. Avachat
Bench: S.S. Shinde, R.G. Avachat
cr.wp.874-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.874 OF 2018
Sardar s/o. Shahvali Khan (C-6608),
r/o. Room No.10/11, Gowawala Chawl,
LBS Road, Kurla West, Mumbai - 70
at present in Central Jail, Harsul,
Aurangabad ..Petitioner
Vs.
1. State of Maharashtra,
Through Divisional Commissioner,
Aurangabad
2. State of Maharashtra,
Through Superintendent of Jail,
Aurangabad ..Respondents
----
Mr. M.S.Chaudhari, Advocate for petitioner
Mr. D.R.Kale, APP for respondent nos.1 and 2
----
CORAM : S.S. SHINDE AND
R.G. AVACHAT, JJ.
RESERVED ON : JANUARY 29, 2019
PRONOUNCED ON : FEBRUARY 18, 2019
ORDER (Per R.G. AVACHAT, J.) :
At the outset, learned Counsel for the petitioner, on instructions, states that the petitioner ::: Uploaded on - 18/02/2019 ::: Downloaded on - 18/03/2019 04:15:59 ::: 2 cr.wp.874-18 does not wish to press Prayer Clauses (B), (C) and (D).
2. The challenge in this petition, therefore, remains only to the order dated 06.06.2018 passed by respondent no.1, whereby the application preferred by the petitioner for grant of parole came to be rejected.
3. Heard learned Counsel appearing on behalf of the petitioner and learned APP for the respondents.
4. Mr.Chaudhari, learned Counsel appearing on behalf of the petitioner submits that the petitioner has been undergoing life sentence. He has been released on furlough/parole many times before the impugned order was passed. The petitioner preferred application dated 09.05.2018 for his release on parole on various grounds such as ailment of wife, etc. Respondent no.1 turned down the application mainly on the ground that the petitioner is convict of bomb-blast case. According to learned Counsel, the conduct of the petitioner is very good. On his release on furlough/parole on earlier occasions, he had returned to jail on the dates on ::: Uploaded on - 18/02/2019 ::: Downloaded on - 18/03/2019 04:15:59 ::: 3 cr.wp.874-18 which his furlough/parole period was over. The petitioner did not jump the furlough/parole nor has he breached any of the conditions imposed for his release on furlough/parole. Learned Counsel, ultimately, urged for grant of this petition.
5. 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/parole, who has been convicted of a case under Terrorist and Disruptive Activities (Prevention) Act ("TADA", for short). 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 petition.
6. The aim and objects of the scheme behind grant of parole and furlough are as under :- ::: Uploaded on - 18/02/2019 ::: Downloaded on - 18/03/2019 04:15:59 :::
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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. Parole 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/parole.
7. Admittedly, the petitioner is the convict of Mumbai Bomb-blast case. He has been undergoing life sentence. He has undergone little over 15 years of imprisonment, on the date of his application for ::: Uploaded on - 18/02/2019 ::: Downloaded on - 18/03/2019 04:15:59 ::: 5 cr.wp.874-18 parole. The petitioner had been released on furlough/parole number of times. He had returned to jail on the dates on which his furlough/parole period was over. It is not the case of the respondents that the petitioner has ever jumped the furlough/parole or breached any of the conditions imposed for his such release.
8. The petitioner sought for parole as his wife has not been keeping well. The application of the petitioner has been turned down mainly on the ground that the newly amended Rule 4(13) of the Rules creates a bar for release of the prisoners on furlough/parole, who has been sentenced in a case under TADA.
9. Whether the newly amended Rules would have retrospective operation, is a question pending for 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.
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10. 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 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 ::: Uploaded on - 18/02/2019 ::: Downloaded on - 18/03/2019 04:15:59 ::: 7 cr.wp.874-18 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.
11. In view of the the Apex Court's observations in the case of Asfaq (supra) and in the facts and circumstances of the present matter, namely, the petitioner had been enlarged on forlough/parole number of times hereinbefore, we are inclined to allow the petition in the following terms :-
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(i) The Writ Petition is allowed.
(ii) The impugned order passed by respondent no.1 is set aside.
(iii) Respondent no.1 is hereby directed to release the petitioner on parole for a period of (14) days on usual conditions.
(iv) The petitioner is 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 his release on parole.
[R.G. AVACHAT, J.] [S.S. SHINDE, J.] kbp ::: Uploaded on - 18/02/2019 ::: Downloaded on - 18/03/2019 04:15:59 :::