Bombay High Court
Central Prison vs State Of Mahaharashtra on 7 August, 2008
Author: Santosh Bora
Bench: N.V.Dabholkar, Santosh Bora
[1]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 260/2008
Sardar Shahwali Khan
Age 54 years
r/o Room No. 10-11,
Goawala Chawl, LBS Road
Kurla [W], Mumbai-400 070
[Now Confined at Aurangabad
Central Prison, Aurangabad] PETITIONER
Versus
1. State of Mahaharashtra RESPONDENTS
2. The Superintendent
Central Prison
Aurangabad
3. The Dy. Inspector General
of Prisons, Central Jail
Harsul, Aurangabad.
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[2]
Shri Nilkanth Gavhankar, Adv. with Shri A.R.Borulkar,
Advocate for petitioner.
Smt.Ranjana Reddy, Assistant Public Prosecutor for
respondents.
CORAM : N.V.DABHOLKAR & SANTOSH BORA, JJ
RESERVED ON : 27/6/2008
PRONOUNCED ON : 7/8/2008
JUDGMENT:[PER SANTOSH BORA, J]
1. This is a petition under Article 226 of the Constitution of India.
2. Sardar Shahwali Khan, who is Indian Citizen and permanent resident of Kurla [West], Mumbai, filed this petition for :-
[i] quashing & setting aside order dt.
31/1/2008 [Exh. "A", page no. 7], rejecting his application for release on furlough passed by Deputy Inspector General of Prisons -resp.no. 3 herein;
and ::: Downloaded on - 09/06/2013 13:40:19 ::: [3] [ii] for directions, purporting to be in the nature of a writ of mandamus or any other writ, order or directions in like nature, against respondents, for releasing him on furlough, on such terms & conditions as this court may deem fit and proper.
3. Petitioner says that, he is convicted by Designated Court under Terrorists Activities Disruptive [Prevention] Act, 1987 [Hereinafter referred to as TADA Act for the sake of brevity] in Bombay Blast Case No. 1/1993, by judgment of conviction pronounced on 24/11/2006. He was sentenced to suffer rigorous imprisonment for life on 6/6/2007.
. Petitioner says that, convicted prisoners are entitled for their release on furlough, as per Rule 3(i) of the Prisons (Bombay Furlough & Parole) Rules, 1959 [Hereinafter referred to as the Rules of 1959, for the sake of brevity] and thus, he is also entitled for furlough every year.
. Petitioner says that, he submitted an application for furlough to resp.no. 3 on 29/6/2007, however, it was rejected by order dt. 31/1/2008, ::: Downloaded on - 09/06/2013 13:40:19 ::: [4] which is under challenge in this petition.
. Grievance of petitioner is that order under challenge is illegal, unjust and arbitrary. It also shows non-application of mind by resp.no. 3 in as much as, he was on bail during the trial and there was no complaint against him.
4. Petitioner has filed this petition on 25/4/2008. Respondents appeared in the matter through learned Assistant Government Pleader. One Yuvaraj Baviskar, Jailor, Harsul Jail, filed affidavit-in-reply on behalf of respondents and opposed petition, contending, inter-alia, that, application for furlough was rejected, as adverse police reports were received from Assistant Commissioner of Police, Mahim Division, Mumbai, and from Police Inspector attached to Vinoba Bhave Nagar Police Station. Further, having considered Rule 4 (4) 6 and 8 of Furlough Rules, petitioner was found not entitled for furlough. Thus, order passed by Competent Authority under Prison Rules cannot be faulted with. The learned APP further submits that, petition under Article 226 of the Constitution of India is misconceived, for the reason that petitioner ::: Downloaded on - 09/06/2013 13:40:19 ::: [5] was involved in a serious offence of grave magnitude.
5. During the course of hearing, Smt. Ranjana Reddy, APP, placed on record a copy of police report received from Assistant Commissioner of Police, Mahim, dt. 22/8/2007, as also, a copy of report sent by Police Inspector attached to Vinoba Bhave Nagar Police Station, Mumbai.
6 Before we advert for determination or consideration of points, which arise in this matter, it is necessary to point out our observations, which are relevant with issue involved in matter:-
[a] Petition lacks in material facts and particulars, in as much as there are no averments in respect of :-
. [i] offences with which petitioner was charged;
. [ii] charge, at least in brief, with which petitioner was prosecuted and ultimately found guilty and convicted by TADA Court;::: Downloaded on - 09/06/2013 13:40:19 ::: [6]
. [iii] challenge to judgment & order of conviction and sentence, by petitioner, before which court, under which provisions of law; and . [iv] bail application, if any, filed before the Hon'ble Supreme Court and the result thereof.
[b] Petition is not verified, nor exemption for filing affidavit was pressed for or granted.
[c] Respondents have also matched themselves, by not disclosing aforesaid facts. Nor information was placed before this court about stage of appeal filed by convicted petitioner before Hon'ble Apex Court. Nor information about filing of appeal by State Govt., for enhancement of sentence, from rigorous imprisonment for life to that of maximum penalty of death, was placed on record.
. In fact, nothing was placed on record, by both parties, nor an attempt was made to point out gravity, magnitude, severity and seriousness of crime in which petitioner was involved and convicted. No submission was made beyond referring to contents made ::: Downloaded on - 09/06/2013 13:40:19 ::: [7] in affidavit in reply filed by one Jailor.
. We may hasten to add that, in the above backdrop, we are constrained to deal with this petition, in exercise of powers under Article 226 of Constitution, with little foundation or no foundation in the pleadings.
7. We heard this petition on 6/6/2008. We expressed our reluctance to entertain petition mainly on two counts, which we felt and made clear to Mr.Gavhankar, learned counsel for petitioner, as under :-
[a] Whether petition under Article 226 of Constitution of India can be entertained, adjudicated and decided:-
when an appeal of convicted petitioner is pending before Hon'ble Apex Court under Section 19 of the TADA Act;
when such statutory appeal is pending
before Hon'ble Apex Court, can High Court
ignore mandate of Sub-section (2) of
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[8]
Section 19 of TADA Act; and
when distinction can very well be made
between prosecution for offences of
murder, conspiracy & like nature to be
tried under general law - Indian Penal
Code - (where appeal is governed by Code
of Criminal Procedure, 1973) and
prosecution for offences under Special &
Stringent Statute viz. TADA Act, where
appeal, governed by said Law, lies before
Hon'ble Apex Court.
[b] TADA Act is a 'Class' legislation and
classification is found to be constitutional by
Hon'ble Apex Court.
. No doubt, powers under Article 226 of
Constitution are wide enough, however, judicial
review of orders passed by the authorities under
Prison Act and Rules framed thereunder in respect of parole and furlough rules, is unwarranted, uncalled for and unnecessary, when convict, like petitioner, may knock door of Hon'ble Apex Court under Article 32 of Constitution of India which in itself guarantees ::: Downloaded on - 09/06/2013 13:40:19 ::: [9] remedy for violation of fundamental rights. But, propriety requires that, in a case like this, we say that writ petition is wholly misconceived.
8. It is at this stage of hearing, when, prima facie, we declined to entertain petition filed for seeking judicial review of order under challenge as well as for issuance of a writ of mandamus or directions to respondents to release petitioner on furlough, Shri Gavhankar, learned counsel for petitioner, placed before us a copy of an order passed by a Division Bench of this Court at Principal Seat at Mumbai passed in Criminal Writ Petition No. 686/2008, decided on 22/4/2008, in case of Bashir Ahmed Usmanali Vs. State of Maharashtra & Ors. He contends that, petitioner in the said case (Bashir Ahmed Usmanali), one of the co-accused in Bombay Blast Cases, filed petition in this Court at Bombay under Article 226 of Constitution of India. Petition was entertained. He was released on furlough. For the sake of convenience, we placed said copy on record and marked as EXHIBIT "X" [page nos. 21 & 22]. Shri Gavhankar, therefore, submits that, on Principles of Parity, petitioner may be ordered to be released on furlough.
::: Downloaded on - 09/06/2013 13:40:19 ::: [10]9. We perused order passed by this court on 22/4/2008 in case of Bashir Ahmed. We are of the view that, principles of parity cannot be invoked to petitioner in this petition. Facts of this case are not similar with that of the case of Bashir Ahmed.
In said case, Bashir Ahmed has suffered imprisonment for about 15 years, as against the sentence of life imprisonment. Furlough was refused by Competent Authority to Bashir Ahmed only on apprehension that he may not surrender in time, after furlough is over and there was no other objection in counter affidavit. It is, in these circumstances, this court proceeded to observe:-
"We feel, since the petitioner has already been in jail for about 15 years, he needs to be released on furlough for a period of 14 days."
. Again, in case of Bashir Ahmed (para 5), this court imposed stringent conditions & released him on furlough for a period of 14 days.
. Out of curiosity, we asked Shri Gavhankar, ::: Downloaded on - 09/06/2013 13:40:19 ::: [11] as to when period of 14 days furlough of Bashir Ahmed ends and he fairly submits that, Bashir was due to return to jail on 25/6/2008, as according to him, Bashir was actually released from jail on furlough on 11/6/2008, as per order of this court dt. 22/4/2008.
We, accordingly, adjourned hearing of matter till 27/6/2008, so as to enable Shri Gavhankar to inform this court as to whether said convict (Bashir Ahmed) returned to jail as per conditional order passed by this court. Shri Gavhankar, was fair enough to orally inform this court, on the adjourned date of hearing i.e. ig 27/6/2008, that convict (Bashir Ahmed) did not return to prison on scheduled date i.e. 25/6/2008. But, he submitted further that, an application for extension of furlough period seems to have been filed by convict (Bashir Ahmed). We do not wish to say any further about said matter, but having regard to gravity, magnitude, severity and seriousness of crime, with which convict like petitioner is prosecuted, tried and ultimately convicted, we express our concern, without allowing ourself to get influenced while dealing with case of petitioner in present petition in our hand. We, however, reiterate that, having regard to peculiar facts & circumstances Bashir Ahmed was released on ::: Downloaded on - 09/06/2013 13:40:19 ::: [12] furlough. We, therefore, are not in agreement with arguments advanced by Shri Gavhankar, to consider case of petitioner herein qua co-accused Bashir Ahmed, on principles of parity.
10. Shri Gavhankar, proceeds further and submits that, High Court can very well entertain / adjudicate / deal with / decide this petition under Article 226 of Constitution of India. In support of above contention, he mainly advanced following submissions:--
[i] Right to be released on furlough is a substantial and legal right conferred on the prisoner.
[ii]. Prison authorities cannot deprive
prisoner of his substantial right to be
released on furlough, provided
requirements of rules are complied with.
[iii].Prisoner is entitled to apply for furlough under Furlough Rules, despite pendency of his appeal in Supreme Court.::: Downloaded on - 09/06/2013 13:40:19 ::: [13]
. Shri Gavhankar, placed into service a decision of Division Bench of this court in case of Sharad Vs. State of Maharashtra [1990 (3) BCR 633 :
1991 CrLJ 2109] to advance his argument that, Competent Authority under Prison Act and Rules has power to entertain an application for parole when appeal preferred by convict is pending before the Supreme Court and in any case there is always a remedy of a judicial review by High Court under Article 226 of Constitution of India. He invited our attention to a recent judgment of a Full Bench in case of Santsingh @ Tillisingh Ajitsingh Kalyani Vs. Secretary, Home Department, Govt. of Maharashtra [2006 (1) BCR (Cri) 743]. He further submits that, as petition under Article 226 of Constitution of India is entertained and allowed by this court in case of Bashir Ahmed, this writ petition deserves to be entertained and decided. He finally, placed before us a compilation of decisions of Hon'ble Apex Court and this court in support of his submissions.
The compilation of cases, which are mostly reported in several law journals, shows that Shri Gavhankar, appeared for prisoners in several matters. He assisted this court ably.::: Downloaded on - 09/06/2013 13:40:19 ::: [14]
. Shri Gavhankar, fairly submits that, there is no decision of Hon'ble Apex Court or this Court, in respect of point, which we proposed to deal with.
. Therefore, the point for consideration is as to whether writ petition under Article 226 of the Constitution of India, filed by a convict for seeking his release either on parole or furlough, is maintainable; when the prisoner is convicted & sentenced by Designated Court under TADA Act, 1987, and appeal is pending before the Hon'ble Apex Court?
. Shri Gavhankar, further submits that, judicial discipline requires that, in view of order in Bashir Ahmed's case by Division Bench of this Court, point may be referred for a decision to a larger bench, in case, this court declines to entertain petition under Article 226 of Constitution of India. He further submits that, in case, this petition is not entertained or this court declines to invoke powers of judicial review of order under challenge for issuing writ of mandamus for releasing petitioner on furlough, petitioner may be advised either to approach Hon'ble Apex Court under Article 32 of Constitution of India and / or prisoner may ::: Downloaded on - 09/06/2013 13:40:20 ::: [15] avail a remedy of release on parole or even for furlough, afresh.
11. Thus, only point involved in this petition is :-
[A]. Whether, in facts & circumstances of case, this petition under Article 226 of Constitution of India filed by petitioner [who is convicted & sentenced by Designated Court under TADA Act] deserves to be entertained / adjudicated / decided by this Court, especially when :-
[a] appeal/s of petitioner (and several co-accused in Bombay Blast Cases decided by Designated Court, Mumbai) is / are pending for hearing and final disposal before the Hon'ble Supreme Court;
[b] sub-section 2 of Section 19 of TADA
Act excludes jurisdiction of all courts
even to entertain grievance of accused /
convict in such cases against
inter-locutory orders passed by Designated Court;
::: Downloaded on - 09/06/2013 13:40:20 ::: [16] [c] such a convict / prisoner can invoke remedy under Article 32 of the Constitution for seeking redressal of grievance as regards denial of prison
facilities, such as, furlough / parole and also pray for a writ of mandamus or direction, for release from prison;
[d] such a convict / prisoner can make
an application invoking provisions of
Article 136 and / or 142 of the
Constitution;
[e] convict/s - accused, particularly in
Bombay Blast Cases, tried by Designated
Court, Mumbai, are lodged in different
prisons in the State;
[f] apart from Principal Seat at Mumbai,
this court has its benches at Nagpur,
Aurangabad and Panaji (Goa);
[g] Bombay Blast Case is a 'Class Case',
in as much as, convicts are undergoing
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[17]
imprisonment for serious offences
pertaining to security and integrity of
nation as well as considering gravity and
magnitude of conspiracy and its over all
impact on unity of this great democratic
country - Bharat;
[h] accused was charged, tried and
convicted under TADA Act, which provides
special procedure than the procedure
provided under Code of Criminal Procedure
for
igtrying accused under general penal
laws;
[i] in order to avoid multiplicity of
proceedings and having regard to public
policy, departure can be made as regards
to convict under stringent law like TADA -
such departure has been held to be
constitutional;
[j] the Supreme Court is seized with
appeal filed by petitioner and greivance
of convict like petitioner can very well
be made by invoking Article 32 of the
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[18]
Constitution and in case, like this, it is appropriate and desirable to do so;
[k] once there is conviction under TADA Act or Explosives Act or Penal Code [appeals are decided by the Supreme Court], remedy of judicial review under Article 226; for entertaining grievance of denial of prison facilities, such as, furlough / parole, for seeking mandamus for grant of such facilities; may be availed;
[l] having regard to scope, extent and
limitation on power of this court under
Article 226 [as set out in case of
Tulsiwadi Navnirman Coop. Hsg. Society
Ltd. Vs. State of Mah. & Ors [2008 (1)
BCR 1], powers of judicial review under
Artilce 226 must be used with due care and circumspection.
Answer : In negative.
[B] In this view of matter, whether said point ::: Downloaded on - 09/06/2013 13:40:20 ::: [19] / issue is required to be referred to a larger bench for decision ?
Answer : In affirmative.
. For the reason, the Division Bench of this
Court at Principal Seat at Mumbai, in case of Bashir Ahmed Usman Ali Vs. State & Ors [Cr.W.P. No. 686/2008, decided on 22/4/2008] entertained and decided petition, when :-
[a] ig petitioner, who is a co-accused in Bombay Blast Cases, prayed for same relief by way of principles of parity;
[b] other co-accused are likely to claim such a facility;
[c] we have been informed that, at least, till hearing of this case was over, co-accused Bashir Ahmed did not return to jail;
[d] convict under Bombay Blast Cases are
found guilty of offence of conspiracy
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[20]
which culminated in loss of lives of
hundreds of people, damage of corers of
rupees and its impact can never be
forgotten by countrymen;
[e] though decision in Bashir's case
[supra] cannot be treated to be a
precedent, fact remains that, an order of
a co-ordinate division bench cannot be
ignored by subsequent division bench
hearing identical matter;
[f] admittedly, issue / point involved
is of vital importance and is required to
be addressed by a larger bench;
[g] a Division Bench of this court in
case of Sharad Bhiku Marchande Vs. State
of Mah. [1990 (3) BCR 633] has observed
that, a convict, whose appeal is pending
before a High Court or the Supreme Court,
as the case may be, is entitled to
approach a High Court and remedy of
judicial review is available. But, the
same view is in respect of conviction
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[21]
under Penal Code and not under TADA Act.
There is no judgment, either of the Apex
Court or other High Courts, on the issue
involved herein;
[h] In case of Sharad Bhiku [supra] and
in case of S.Sant Singh @ Pilli Singh Ajit Singh Kalyani Vs. Secretary, Home Department, Govt. of Maharashtra [2006 (1) BCR (Cri) 743], this court has opined that, a convict undergoing sentence of life ig imprisonment is entitled to avail remedy of judicial review under Article 226 for seeking parole and furlough, respectively, pending appeal, either before a High Court or the Supreme Court.
Convicts in above referred two cases were in prison for committing offence punishable under Section 302 of IPC and were sentenced to suffer RI by Sessions Court and their appeals were pending before High Court / the Supreme Court.
The appeals of such convicts were governed by provisions of Section 374 of CrPC, whereas, convict under TADA Act is dealt ::: Downloaded on - 09/06/2013 13:40:20 ::: [22] with by procedure provided under the same Act and tried before Designated Court;
[i] constitutional challenge to TADA Act, on the ground of departure from Code of Criminal Procedure to that of Special Statute, including a remedy way of an appeal, was held to be constitutional on the ground that classification is based on intelligible differentia;
[j] igin case of Suresh R.Yadav Vs. State of Gujarat [1990 CrLJ 1834], High Court of Gujarat declined to entertain a petition under Article 226 of detenu under TADA Act for his release, alleged, from illegal detention;
[k] in case of Gurfan Hasan Qureshi Vs. State of Maharashtra [1999 (5) BCR 744] and in case of Dadu @ Tulsidar Vs. State of Mah. [AIR 2000 SC 3203], request of convicts for their release on parole / furlough was not entertained by High Court and the Supreme Court, respectively. It ::: Downloaded on - 09/06/2013 13:40:20 ::: [23] is true that, there is a statutory bar for exclusion of jurisdiction of High Court under Section 32-A of the NDPS Act.
Similar view is expressed by a Division Bench of this court in cases viz. Gurfan Hasan Qureshi Vs. State of Maharashtra [1995 (5) BCR 744] and Hasan Ismail Dalvi Vs. State of Mah. [1988 CrLJ 136], for sounding a note of caution and circumspection for observance of judicial restraint from exercising writ jurisdiction in respect of release of detenu in preventive detention cases under COFEPOSA, etc., seeking their release on parole and furlough. On the other hand, the settled legal position of law is that, furlough is substantial legal right conferred on a prisoner;
[l] a request is also made on behalf of petitioner for accepting order passed by a co-ordinate Division Bench at Principal Seat at Mumbai in Bashir Amhed's case [supra] and if such a request is not acceptable, proper course would be to make ::: Downloaded on - 09/06/2013 13:40:20 ::: [24] a reference to a larger bench;
[m] in case of Tulsiwadi [supra], a full bench of this court considered issues and questions in respect of scope, extent, powers, limits and restraints of writ jurisdiction of High Court qua actions / inactions of authorities in-charge of implementing SRA Scheme. The reference was made by a Division Bench, on oral arguments, having regard to importance of the issues; and [n] lastly, there is no decision of the Supreme Court or High Court on the point so framed herein for consideration and the point needs to be addressed by a Larger Bench.
. Hence, the Registrar [Judicial] is directed to place papers of this petition before the Hon'ble the Chief Justice for appropriate order.
12. BACK GROUND OF BOMB BLAST IN BOMBAY OF ::: Downloaded on - 09/06/2013 13:40:20 ::: [25] YESTERDAY, MUMBAI OF TODAY.
". Bombay of yesterday, Mumbai of today: financial capital of the nation.
It woke as usual on 12th March 1993.
People started for their places of work not knowing what was in their store. The terrorists and/or disruptionists, bent on breaking the backbone of the nation (for reasons which need not be gone into) had, however, hatched a well laid-out conspiracy to cripple the country by striking at its financial nerve. As Bombay set down to work, blasting of bombs, almost simultaneously, took place at important centres of commercial activities like Stock Exchange, Air India, Zaveri Bazar, Katha Bazar and many luxurious hotels. A shocked Bombay and a stunned nation first tried to provide succour to the victims as much as possible and then wanted to know the magnitude of the loss of life and property. It surpassed all imaginations, as it was ultimately found that the blasts left more than 250 persons dead, 730 injured and property worth about Rs.27 crores destroyed. By all counts, it was thus a great tragedy; and revolting also, as it was men-made.
. All right thinking persons and well wishers of the nation started asking; Why it happened? How could it happen? We are not concerned in these cases with why, but with how. The gigantic task led Bombay police, despite its capability, to seek assistance of the CBI. An arduous and painstaking investigation by a team of dedicated officials showed that the aforesaid bomb blasts were a result of deep rooted conspiracy - concerted action of many, guided either by greed or vengeance. The finale of investigation consisted in charge-sheeting 145 persons (of whom 38 were shown as absconders) under various sections of the Penal Code and the Terrorists And Disruptive Activities (Prevention) Act, 1987 (TADA)."
::: Downloaded on - 09/06/2013 13:40:20 ::: [26](Introductory paragraph of the decision of the Apex Court in case of State of Maharashtra v/s. Somnath Thapa, A.I.R. 1996 Supreme Court, Page 1744) . Thus, Designated Court under Terrorists And Disruptive Activities (Prevention) Act, 1987 for trying Bomb Blast Cases was designated and housed under heavy security within prison walls of Arthor Road, Mumbai.
13. CHARGE AGAINST PETITIONER -
. SARDAR SHAH WALI KHAN
. At our request learned counsel Mr.
Gawankar at the end of his argument, was able to give extract of order of Designated Court dealing with sentencing aspects of Petitioner herein. Petitioner was accused No.54. Suffice it to say that, as this Petition is lacking in material facts and particulars, it became necessary for us to do this exercise. It is settled that prisoners, after their conviction, are entitled as of right, prison facilities as per Prison Legislation, Rules and Manual. Prisoners cannot be deprived of such ::: Downloaded on - 09/06/2013 13:40:20 ::: [27] facilities. Writ Court is always concerned with fundamental rights of citizens and nothing can be an impediment in the way of this Court for enforcing basic rights of human being. With this prelude, we proceed further.
. Charge against petitioner, its gravity, magnitude and seriounsess can be looked into in the following paragraphs of the decision of the Designated Court under TADA Act in Bomb Blasts Case No.1 of 1993:
"945) Now taking up work of determining sentence for A-54 in light of submissions canvassed at Bar, reasoning given during earlier part of Judgment and particularly declaration made in consequent to same on 24th Nov., 2006 reveals that A-54 charged for commission of offence of conspiracy for which charge was framed at head firstly at trial and for commission of offence under Sec. 3(3) of TADA on 5 sub-counts i.e. clauses-(a) to (e); was found guilty on the counts of clause (a) and to the extent for clauses (c), (d) &
(e) as found established during the assessment of evidence adduced.
946) Without unnecessarily reiterating every aspect connected with decision arrived accordingly, in short it can be said that A-54 was found (a) having received weapon training of handling arms, ammunitions and explosives imparted by Tiger Memon at Sandheri, Borghat (c) having attended conspiratorial meetings at the residence of co-conspirators where the plans of committing terrorist acts were discussed and chalked out (d) having ::: Downloaded on - 09/06/2013 13:40:20 ::: [28] effected reconnaissance of BMC Bldg along with conspirators in order to commit terrorist act etc. (e) present in the intervening night of 11th & 12th March, 1993 at Al-Husseini Bldg in when preparation of motor vehicle bombs by loading RDX for planting the same at various places in Bombay for committing terrorist acts and by causing explosion etc. were in progress.
947) It is significant to note that on the basis of same he has been held guilty for the offence of conspiracy to commit terrorist act and to commit other offences likely to be committed due to user of explosive substance for commission of explosion resulting in deaths and injuries to persons and damage to property. It will not be out of place to state that the evidence has also disclosed that though A-54 had not committed any terrorist act hardly there is any evidence to reveal that he was assigned any such work by main conspirators. Needless to add that evidence has established that though A-54 had not committed any terrorist act still he was a coveted member of conspiracy and/or man of confidence of prime conspirator Tiger Memon. All facets of evidence establishing same has been not reiterated in this paragraph as the same are discussed earlier.
948) As stated earlier prosecution has demanded for giving maximum penalty i.e. Death Penalty prescribed under the law for A-54 for offence of conspiracy who according to prosecution was falling in first group made by ld. Chief PP i.e. the group of accused found guilty for commission of offences of conspiracy and other offences. During the discussion made earlier for the reasons already given it has been already ruled that such a blanket attitude cannot be taken while determining the sentence for such accused placed in said group as different penalty ranging from Life Imprisonment to Death Penalty with fine has been prescribed for ::: Downloaded on - 09/06/2013 13:40:20 ::: [29] offence of conspiracy for which charge is framed at head firstly and so also different penalties within the range as prescribed for particular offence under TADA i.e. for commission of various acts/offences as prescribed under Sec.3(3) of TADA including the offence of conspiracy.
949) In addition to said reasons given
earlier for not accepting such a
submission advanced by ld. Chief P.P., it will be further necessary to add for not accepting such a submission advanced, that apart from A-54 being found guilty for commission of offence of conspiracy as stated aforesaid and offence u/s 3(3) of TADA due to his participation in various operations effected in pursuance of conspiracy hatched and/or effected for achieving the ultimate object of conspiracy, still a fact cannot be lost sight of that A-54 was himself was not involved in commission of terrorist act.
Needless to add that said circumstance will have a vital bearing in determining the criminality entertained by A-54. The said non-participation of A-54 in commission of any terrorist act or his non-involvement in commission of any act furthering object of conspiracy after attending conspiratorial meetings will definitely takes his case upon the lower pedestal than the one who were the members of said conspiracy and who had also committed the terrorist act. Thus from the said angle and the maximum penalty provided for being party to such conspiracy being Death Penalty, imposing the same for all such other accused and so also upon A-54 will result in levying the same penalty for both, inspite there being difference in the acts committed by each of them and thus in turn there being a difference in the element of criminality entertained by them. It might be true that services of A-54 might not have been used by main conspirators for commission of terrorist act. However, still the fact remains that he was not involved in ::: Downloaded on - 09/06/2013 13:40:20 ::: [30] commission of any such act. Thus without committing any such terrorist act A-54 cannot be said to have entertained the criminality necessary for commission of such terrorist act merely on the basis of himself being party to the conspiracy.
. Thus taking into consideration extent and/or severity of act committed by A-54 and the other relevant factors and having regard to the basic principle behind awarding punishment being to eradicate the element of criminality and not to punish individual human being entertaining same also makes it difficult to accept the submission of Chief P.P. for giving maximum sentence prescribed under the law in view of A-54 being found guilty for commission of offence of conspiracy and offence u/s 3(3) of TADA.
951) In the aforesaid context it will be necessary to say A-54 was not the only person involved in the conspiracy for which charge at head firstly is framed at the trial. As a matter many accused persons are found guilty for commission of offence of conspiracy and various offences. The evidence surfaced at the trial has also revealed that some of them had remained as a member of conspiracy and/or were engaged in commission of acts furthering/achieving the object of conspiracy uptil last moment. Thus from said angle there appears a difference of a case of such accused and that of A-54 about whom there exists no evidence of himself having committed such act furthering object of conspiracy until the same was achieved. It is indeed true that act committed by each of such a conspirator were in relation to the conspiracy to which each of them was party. However, merely because of said common factors it will be difficult to accept that act committed by each of them can be said to be on par and thus each of them would be liable for the same i.e. the maximum penalty as warranted in present case after taking into ::: Downloaded on - 09/06/2013 13:40:20 ::: [31] consideration the heinous object of conspiracy. Having regard to the same, without taking into consideration criminal acts precisely committed by individual accused treating acts committed by each of them on same part and thereby giving maximum sentence to each of them would be travesty of justice as same would result in levying same punishment as observed earlier, inspite of severity of acts committed by each of accused being different and thus being violative of basic principle behind levying the punishment."
. Thus Petitioner was found guilty of
serious charges and acts of grave magnitude. Acts
and omissions on part of Petitioner are of a grave
concern and
serious. We say no further on this
aspect.
14. Petitioner was convicted on 24/11/2006 and sentence was pronounced on 6/6/2007 and thereafter he was lodged in prison at Harsul, Aurangabad. It is pertinent to note that petitioner filed Furlough Leave Application on 29/6/2007 i.e. within a period of three weeks from decision of Designated Court under TADA Act.
15. As we have already expressed our view of declining to entertain Petition for judicial review of order under challenge passed by the Authorities or ::: Downloaded on - 09/06/2013 13:40:20 ::: [32] for issuance of the writ of mandamus it is not necessary for us to look into grounds on which order under challenge was passed. We are of firm view that Petitioner is entitled for prison facilities being convicted, within frame-work of Prison Act, Furlough and Parole leave Rules. Aggrieved prisoners may avail the remedy under Article 32 of the Constitution of India by approaching the Apex Court. In the instant case, it would be desirable that complaint as regards to disentitlement of prison facilities like Furlough and Parole may be made in the Apex Court as Appeals against conviction lye before the Hon'ble Apex Court under TADA Act and same are seized by the Hon'ble Apex Court. Thus in our view, Writ Petition under Article 226 of the Constitution of India is misconceived. However, prisoners like petitioner can approach the Hon'ble Apex Court either under Article 32 of the Constitution of India or move an appropriate application in their pending Appeals.
Thus, as per scheme of the Constitution, judicial review is not only permissible but prisoner is vested with fundamental right to avail such remedy.
16. Fact remains that Shri Gavhankar, admitted during course of argument that petitioner has ::: Downloaded on - 09/06/2013 13:40:20 ::: [33] approached the Apex Court for appealing his conviction and sentence under TADA Act, however, he is unable to state details for want of instructions.
Equally, learned Assistant Government Pleader was unable to place on record any such details and even fact whether prosecution agency filed Appeal for enhancement of sentence.
17. So far as grounds or reasons, for which application for release of petitioner on furlough was rejected by Sanctioning Authority - resp.no. 3, are concerned, we ig make it clear that, as we are not entertaining this petition, it is not necessary for us to examine order under challenge from that angle.
We also clarify that, we have not expressed any opinion in respect of order under challenge.
. We reiterate that, we are not inclined to entertain this petition under Article 226 of Constitution, for the reasons stated & discussed in forgoing and subsequent paragraphs. We are also of the view that, authorities under Prison Act and Rules made thereunder, are empowered and authorised to release a prisoner / convict of TADA Act or an Act of like nature, within the framework of the Act and the ::: Downloaded on - 09/06/2013 13:40:20 ::: [34] Rules, and subject to limitations of the said provisions, a prisoner is entitled for such facilities by way of legal and substantive right, no matter he is a convict under TADA. In fact, authorities empowered to release the prisoner under the Act and the Rules are required to act fairly and keeping in mind the spirit behind the grant of such facilities. It is well settled that, authorities may not be justified in rejecting furlough and parole merely pointing out adverse police report, without there being any material to justify such a police report. It ig is well recognized that, prisoners are also entitled to enjoy freedom enshrined by Constitution. Prisoners, in our country, are treated at par with citizens of the country for enjoying fundamental rights embodied under Part III of Constitution. If prisoners are deprived of fundamental freedom or rights, they can enforce fundamental rights. In the matter of breach or violation of fundamental rights by the State or by all those who are acting on behalf of the State, prisoners can knock doors of the concerned High Court or Hon'ble Apex Court under Articles 226 and 32 of Constitution. So far as remedy under Article 226 is concerned, it is against curtailment of fundamental ::: Downloaded on - 09/06/2013 13:40:20 ::: [35] rights and for other purposes. Thus, remedy under Article 226 of Constitution is an extraordinary and wide enough to take within its scope, ambit and sweep complaints of violation of fundamental rights as also all other non-fundamental rights viz. rights given under a Statute, rules, regulations, etc. Prisoners also can approach High Court under Article 226 of Constitution for seeking performance of duties which involves public element. It means, remedy under Article 226 of Constitution is not only against the State, agencies or officers of the State but also private bodies ig or persons empowered to discharge public duties. However, remedy under Article 32 of Constitution is available only against the State, as defined in Article 12 of Constitution. Remedy under Article 32 is available only for redressal of grievances regarding breaches of violation of fundamental rights guaranteed by Part III of Constitution. Powers vested with High Courts under Article 226 of Constitution are wider as compared to powers vested with Hon'ble Apex Court under Article 32 of Constitution. This is why, scope of powers of High Courts under Article 226 of Constitution is wider than scope of powers under Article 32 of Constitution vested with Hon'ble Apex Court. Under ::: Downloaded on - 09/06/2013 13:40:20 ::: [36] scheme of Constitution, therefore, though there is one Apex Court viz. Supreme Court of India, there are several High Courts and Constitution vests wider power in High Courts. This is so, because, citizens can avail remedy before High Court or the Hon'ble Apex Court.
. Though remedy under Article 226 of Constitution is extraordinary, powers must be exercised with due care and circumspection.
Discretion is vested with High Court and it is required to be exercised judiciously. Thus, remedy under Article 226 of Constitution is available wherever there is injustice, however, powers must be exercised with circumspection. As powers are wider, responsibility is more. There cannot be a straight-jacket formula, as to when such powers are to be exercised. It is left with the discretion or judgment of High Court. There are no limitations or bar for exercise of such powers, but, limitations, if any, can be High Court itself. In the instant matter, case of petitioner falls in this category of self-imposed restrain, rather than constitutional or statutory bar. Why such self-restraint need not be answered? But, in the instant case, we deem it fit & ::: Downloaded on - 09/06/2013 13:40:20 ::: [37] proper to answer as to why we do so. Prisoner, in our view, is entitled to know the answer from us, as to why we say so. This is requirement of principles of natural justice. We are also required to give reasons as to why we are not inclined to consider this petition under Article 226 of Constitution. It is necessary, because, one of the co-accused in TADA Case No. 1/1993 [Bashir Ahmed Usmanali] filed such a petition under Article 226 of Constitution before Principal Seat at Mumbai. Petitioner insists for parity. We are not inclined to accept this argument.
We distinguished the facts of Bashir's case [supra] in earlier paragraphs. Having regard to number of accused in TADA case tried by Designated Court in Mumbai and as convicts are lodged in different jails situated in different parts of the State and further this court has its benches at Nagpur, Aurangabad and Panaji [Goa], besides the Principal Seat at Mumbai, we felt it necessary to deal this petition in such detail in order to avoid further controversy of the views amongst the benches, so that, grievance, as raised by present petitioner, be taken care off, since there may be more such petitions from convicts from Bombay Blast Case No. 1/1993, so also, accused in other TADA cases.
::: Downloaded on - 09/06/2013 13:40:20 ::: [38]18. PROVISIONS OF VARIOUS ACTS, SUCH AS, TADA, PRISON ACT & RULES THEREUNDER . So far as legal aspect is concerned, we do not wish to burden this judgment any more, as points are already decided, either by Hon'ble Apex Court or High Courts, including this Court. Hence, we propose to give reference of such relevant provisions and decisions, in brief.
TADA ACT:
. The Terrorist and Disruptive Activities (Prevention) Act, 1987 (No.28 of 1987) was enacted by the Parliament to make special provisions for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto. Initially, in the back ground of escalation of terrorist activities in many parts of the country prior to 1985, Parliament enacted the Terrorist and Disruptive Activities (Prevention) Act, 1985. It was expected then that it would be possible to control the menace within a ::: Downloaded on - 09/06/2013 13:40:20 ::: [39] period of two years and, therefore, the life of the said Act was restricted to a period of two years from the date of its commencement. However, initial stray incidents in some part of the Country, unexpectedly spread through out the Country. Therefore, in order to combat and cope with terrorist and disruptive activities effectively, the instant Act was enacted.
. In a case of Usmanbhai Dawoodbhai Memon and
others v/s. State of Gujarat, AIR 1988 Supreme Court,
922, the Hon'ble Apex Court observed that:- "The Act
is an extreme
igmeasure to be resorted to when the
police cannot tackle the situation under the penal
law. The intendment is to provide special machinery
to combat the growing menace of terrorism in different parts of the country. Since, however, the Act is a drastic measure, it should not ordinarily be resorted to unless the Government's law enforcing machinery fails."
. In Usmanbhai Dawoodbhai Memon's case, the Hon'ble Apex Court held that the Act being a special Act prevails in respect of the jurisdiction and power of the High Court to entertain an application for bail under S. 439 of the Code or by recourse to its ::: Downloaded on - 09/06/2013 13:40:20 ::: [40] inherent powers under S. 482. It is held that sub-sec. (8) of S. 20 in terms places fetters on the power of a Designated Court on granting of bail and the limitations specified therein are in addition to the limitations under the Criminal Procedure Code.
The Hon'ble Apex Court further held that: "Under the scheme of the Act, there is complete exclusion of the jurisdiction of the High Court in any case involving the arrest of any person or an accusation of having committed an offence punishable under the Act or any rule made thereunder. The legislature by enacting the law has treated ig terrorism as a special criminal problem and created a special court called a Designated Court to deal with the special problem and provided for a special procedure for the trial of such offences. Just as the legislature can create a special court to deal with a special problem, it can also create new procedures within the existing system.
Parliament in its wisdom has adopted the frame-work of the Code but the Code is not applicable. The Act is a special Act and creates a new class of offences called terrorist acts and disruptive activities as defined in Ss. 3(1) and 4(2) and provides for a special procedure for the trial of such offences........ The legal fiction contained therein must be restricted to ::: Downloaded on - 09/06/2013 13:40:20 ::: [41] the procedure to be followed for the trial of an offence under the Act i.e. such trial must be in accordance with the procedure prescribed under the Code for the trial before a Court of Session, in so far as applicable. There is total departure from different classes of Criminal Courts enumerated in S. 6 of the Code and a new hierarchy of Courts is sought to be established by providing for a direct appeal to the Supreme Court from any judgment or order of a Designated Court, not being an interlocutory order, and substituting the Supreme Court for the High Court by S. 20(6) in the matter of confirmation of a death sentence passed by a Designated Court." Ultimately the Hon'ble Apex Court observed that, High Court has no jurisdiction to entertain application for bail.
. Apart from Usmanbhai Dawoodbhai Memon's case, case the Hon'ble Apex Court upheld the constitutional validity of the TADA Act, 1987 in a case of Kartar Singh v/s. State of Punjab, (1994) 3 Supreme Court Cases, 569.
569 The Judgment in case of Kartar Singh is delivered by the Constitution Bench comprising of five Honourable Judges of the Apex Court.
. Section 19 of the TADA Act, 1987 deals with ::: Downloaded on - 09/06/2013 13:40:20 ::: [42] Appeal and reads as under:-
"19. Appeal - (1) Notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order, not being an interlocutory order, of a Designated Court to the Supreme Court both on facts and on law.
(2) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence ig or order including an inter-locutory order of a Designated Court.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from:
Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days."::: Downloaded on - 09/06/2013 13:40:20 ::: [43]
. As the Apex Court considered the challenge to the validity of the Act of 1987, it is not necessary for us to go in further details, but suffice it to say that Appeal against Judgment and order of the Designated Court lie in the Supreme Court both on facts and on law. No appeal or revision can be entertained by any Court from any Judgment, sentence or order including an inter-locutory order of a Designated Court except the appeal to the Supreme Court from any Judgment, sentence or order passed by the Designated ig Court. It is needless to say that right of appeal is as of right. As appeal lies to the Supreme Court and having regard to the mandate of sub-
Section (2) of Section 19 of the TADA Act, 1987, no Court is empowered to entertain appeal or revision against the order of the Designated Court. Thus, TADA Act, 1987 is a special legislation dealing with penal acts and the legislature has made the departure from the provisions of Indian Penal Code, Arms and Explosive Act and the procedural law, namely, Code of Cri. Procedure, 1973. It is a class legislation and the classification is founded as intelligible differentia. Such classification is reasonable one.
Such Act is therefore, acceptable and constitutional.
::: Downloaded on - 09/06/2013 13:40:20 ::: [44]Tests of 'reasonableness' laid down by the Apex Court in a case of Ramkrishna Dalmia Shri. v/s. Tendolkar Shri Justice, S.R., AIR 1958 SC, 538, are clearly complied with. The Act of 1987 is also held to be constitutional by the Apex Court in case of Kartar Singh (supra).
. Inspite of the provisions under Section 19 of
the TADA Act, 1987, referred to above, we are of the
view that powers of judicial review under Article 226
and 227 of the Constitution of India vested in the
High Courts
cannot be said to be affected and
legislature cannot cripple the powers of the High
Court and such an attempt to exclude the High Court
from exercising its power may be clearly
unconstitutional. It is well settled that power of
judicial review under Article 226 of the Constitution
of India, are part of the 'basic structure theory'
enunciated by the Apex Court in case of Kesavananda
Bharati v/s. Sripadagalavaru v/s. State of Kerala,
AIR 1973 SC, 1461.
1461
. In case of Minerva Mills Ltd. v/s. Union of
India, AIR 1980 SC, 1789,
1789 speaking for the
Constitution Bench, Hon'ble Justice P.N. Bhagwati
::: Downloaded on - 09/06/2013 13:40:20 :::
[45]
(later on elevated as a Chief Justice of India)
observed as under:
"The power of judicial review is an integral part of our constitution system and without it, there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile. So also if a constitutional amendment is made which has the effect of taking away the power of judicial review...."
. In case of S.P. Sampatkumar v/s. Union of India, (1987) 1 Supreme Court Cases, 124, 124 the Hon'ble the Chief Justice, speaking for five Honourable Judges Constitution Bench, observed that: "Article 32 was ::: Downloaded on - 09/06/2013 13:40:20 ::: [46] described by Dr. Ambedkar in course of the debate in the Constituent Assembly as the 'soul' and 'heart' of the Constitution." While considering the challenge to Administrative Tribunal Act, 1985 and further 42nd Amendment to the Constitution vide Article 323-A thereby excluding jurisdiction of High Court under Article 226 and 227 of the Constitution so far as the orders passed by the Administrative Tribunal set up under Administrative Tribunals Act, the Apex Court held such an amendment to the Constitution is invalid and observed that the right to move the High Court in its writ jurisdiction- unlike the one under Article 32- is not a fundamental right. yet, the High Courts, as the working experience of three-and-a-half decades shows have in exercise of the power of judicial review played a definite and positive role in the matter of preservation of fundamental and other rights and in keeping administrative action under reasonable control. The Apex Court declared that powers under Article 226 and 227 of the Constitution of India cannot be taken away even by an amendment to the Constitution and further held that such an amendment is invalid and unconstitutional being against the 'doctrine of basic structure'.
::: Downloaded on - 09/06/2013 13:40:20 ::: [47]. Thus, powers under Article 226 of the Constitution are wide and we are not saying that the Petition cannot be filed. However, the point still arises as to whether the powers can be invoked in the case of like present one. We firmly say, - No. . The Constitution Bench, comprising of seven Hon'ble Judges of the Hon'ble Apex Court in case of L. Chandra Kumar v/s. Union of India, (1997) 3 Supreme Court Cases, 261, (presided over by Hon'ble the Chief Justice A.M.Ahmadi), observed that power of judicial review vested in the High Court and the Supreme Court under Article 226/227 and 32 of the Constitution is basic structure of the Constitution. It is further observed that:-
"Clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional.
Section 28 of the Administrative Tribunals Act, 1985 and the 'exclusion of jurisdiction' clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B are, to the same extent, unconstitutional.
The jurisdiction conferred upon the High Courts under Article 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts ::: Downloaded on - 09/06/2013 13:40:20 ::: [48] and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution."
. In case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v/s. V.R. Rudani and others, (1989) 2 Supreme Court Cases, 691, Hon'ble Justice Jagannatha Shetty, speaking for the Division Bench, observed that the judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible circumstances.
to
meet the requirements
Mandamus is a very wide remedy
of variable
which
must be easily available to reach injustice wherever
it is found. Technicalities should not come in the
way of granting that relief under Article 226.
. In yet another land mark Judgment of the Hon'ble Apex Court in a case of Sunil Batra v/s.
Delhi Administration, A.I.R. 1980 S.C., 1579, speaking for the Constitution Bench, Hon'ble Justice V.R. Krishna Iyer observed as under:-
"Prisons are built with stones of law and so it behoves the court to insist that, in the eye of law, prisoners are persons, not animals, and punish the deviant guardinans of the prison system where they go berserk and defile the dignity of the human inmate., ::: Downloaded on - 09/06/2013 13:40:20 ::: [49] Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials dressed in a little, brief authority when part. III is invoked by a convict. For when a prisoner is traumatized, the Constitution suffers a shock. And when the Court takes cognizance of such violence and violation, it does, like the hound of Heaven, But with unhurrying chase. And unperturbed pace. Deliberate speed and Majestic instancy follow the official offender and frown down the outlaw adventure.
Where the rights of a prisoner either under the Constitution or under other law, are violated the writ power of the Court can and should run to his rescue. There is a warrant for this vigil. The court process casts the convict into the prison system and the deprivation of his freedom is not a blind penitentiary affliction but a belighted institutionalisation geared to a social good. The court has continuing responsibility to ensure that the constitutional purpose of the deprivation is not defeated by the prison administration. Where inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods 'right, just and fair'.
A prisoner wears the armour of basic freedom even behind bars that on breach thereof by lawless officials the law will respond to his distress signals through writ aid. The Indian human has a constant companion - the court armed with the Constitution. The weapon is habeas, the power is Part III and the projectile is Batra (AIR 1978 SC 1675). It is, therefore, the court's concern, implicit in the power to deprive the sentence of his personal liberty, to ensure that no more and no less than is warranted by the sentence happens. If the prisoner breaks down because of mental torture, psychic pressure or physical infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess. On the contrary, if an influential convict is able to buy advantages and liberties to aboid or water down the deprivation implied in the sentence ::: Downloaded on - 09/06/2013 13:40:20 ::: [50] the Prison Establishment will be called to order for such adulteration or dilution of court sentences by executive palliation, if unwarranted by law."
. In case Suresh Ramtirath Yadav v/s. State of Gujarat, 1990 CR. L.J., 1834, Full Bench of Gujarat High Court considered the provisions of Section 16 of the Act of 1985, which is para materia with Section 19 of the TADA Act, 1987, so also the scope of powers of Article 226 and 227 of the Constitution and declined to entertain the Petition under Article 226 of the Constitution of an accused under the TADA Act complaining his detention to be illegal and praying for writ of habeas corpus. There the Full Bench observed as under:-
"The procedure taken from the Criminal Procedure Code for trial of accused under Act is in addition to the procedure contained in the self-contained Act called 'The Terrorist and Disruptive Activities (Prevention) Act, 1985' (as substituted by Act XVI of '87) and that is why it is stated in S. 12(4) of the old Act 'so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session'. Thus, the procedure set out in this Act overrides the procedure in the Criminal Procedure Code and as far as may be, the procedure in the Code is taken for the limited purpose mentioned in the Act. If the orders of adjournments and remand are not in accordance with Section 309 of the Criminal Procedure Code, it is open to the party aggrieved to apply to the said Court for necessary relief, either for grant of bail or ::: Downloaded on - 09/06/2013 13:40:20 ::: [51] for getting directions for a speedy trial. S. 16 of the Act of 1985 (Section 19 of Act of 1987) specifically mentions that no appeal or revision shall lie to any Court from any judgment, sentence or order of a Designated Court except to the Supreme Court. The provision in this self-contained Act prohibiting any revision or appeal before the High Court under Section 439 or section 482 of the Criminal Procedure Code, cannot be circumvented by invoking the jurisdiction of this Court under Article 226 of the Constitution of India alleging as if there is a violation of art. 21 of the Constitution of India."
"The remedy for the accused in challenging delay in trial is only to move the Designated Court for appropriate relief either for bail or for carrying on with the case day today. In any event, the petition under Art. 226 for and issuing a writ of habeas corpus, on the facts circumstances misconceived.
of the case,
Illegal remand and inordinate
is
delay may come under the sweep of
constitutional guarantee given under Art. 21 of the Constitution of India. The question as to whether there is such an illegal remand or inordinate delay is a question of fact and law which have to be decided by going into the facts of each case, on merits, when especially those are all questions which have to be decided on factual aspects of the case, the party concerned can as well invoke the jurisdiction of the Designated Court and draw its attention on this aspect of the case and if any adverse order is passed thereon, the remedy of the party concerned lies by filing appropriate petitions before the Supreme Court. When such efficacious and effective legal remedy is available to the accused, either before the Designated Court or before the Supreme Court, to set right any illegality that may have been perpetrated in the trial of the case or in the remand of the prisoner, it is too much for the accused to invoke the jurisdiction of the High Court under Art. 226 or Art. 227 of the Constitution of India when especially there is a clear provision under S. 16 of the said Act (Section 19 of the new Act) ::: Downloaded on - 09/06/2013 13:40:20 ::: [52] ousting the jurisdiction of the High Court in a case pending before the Designated Court. When especially the main appeal or revision cannot be entertained by the High Court, a fortiori, the High Court cannot interfere in any proceedings of the Designated Court on the mere allegation of the violation of the constitutional right of the party concerned.
They are not without remedy when especially the Supreme Court's jurisdiction is wide open to them, both under the Constitution and also by virtue of S. 16 of the Terrorist and Disruptive Activities (Prevention) Act, 1985."
. OTHER STRINGENT LAWS, LIKE CAFEPOSA, NDPS, ETC . In case of Sunil Fulchand Shah v/s. Union of India, Hon'ble AIR 2000 S.C., 1023, 1023 Constitution five Judges of the Apex Court considered Bench of the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974) and examined as to whether the detenu can be released on parole and whether there is any bar of judicial intervention by way of Petition under Article 226 by High Court or by Supreme Court under Article 32, Article 136 and Article 142 of the Constitution of India. It is pertinent to note that the Apex Court observed that parole, stricto-sensu may be granted by way of a temporary release as contemplated by Section 12(1) or 12(1-A) of COFEPOSA by the Government or its functionaries, in accordance with the parole Rules or administrative instructions, framed by the Government ::: Downloaded on - 09/06/2013 13:40:20 ::: [53] which are administrative in character. Ultimately it is held that remedy of judicial review under Article 226 by the High Court or under Article 32, 136 or 142 of the Constitution of India by the Supreme Court is available. It is further observed that jurisdiction, however, has to be sparingly exercised by the Court and even when it is exercised, it is appropriate that the Court leaves it to the administrative or jail authorities to prescribe the conditions and terms on which parole is to be availed of by the detenu.
. In
a case of Dadu alias Tulsidas v/s. State
of Maharashtra, AIR, 2000 S.C. 3203, the Apex Court
considered provisions of Section 32-A of Narcotic
Drugs and Psychotropic Substances Act (61 of 1985) and observed that Section 32-A of Act which says that no sentence awarded under N.D.P.S. Act shall be suspended or remitted or commuted does not in any way affect the powers of the authorities to grant parole.
It is further held that notwithstanding the provisions of the S.32-A, a convict is entitled to parole, subject, however, to the conditions governing the grant of it under the statute, if any , or the Jail Manual or the Government instructions.
::: Downloaded on - 09/06/2013 13:40:20 ::: [54]. It would be useful to refer to Division Bench Judgment of this Court (comprising of A.V. Savant and T.K. Chandrashekhara, JJ.), in a case of Gurfan Hasan Qureshi v/s. The State of Maharashtra, 1999 (5) Bom.C.R. 744. Point for consideration before the Division Bench was as to whether convict under N.D.P.S. Act is entitle for parole in view of Section 32-A and 36-B of the Act and further Petition under Article 226 of Constitution is maintainable by such convict for releasing him on parole when authorities rejected his parole leave. The Division Bench answered issue in the negative by giving reference to several Judgments of Co-ordinate Benches of this Court and observed that remedy of judicial review under Article 226 of the Constitution would be misconceived.
As stated above, in view of the Judgment of the Apex Court in case of Dadu, referred to above as regards to interpretation of Section 32-A of N.D.P.S. Act, we are doubtful about view expressed by Division Bench of this Court in case of Gurfan Hasan Qureshi and other Co-ordinate Benches referred in the said Judgment.
But still the point as regards to availability of remedy under Article 226 seeking judicial review of order of prison authorities refusing parole, in our view, cannot be completely ignored as it directly ::: Downloaded on - 09/06/2013 13:40:20 ::: [55] relates to point involved in this Petition as regards to exercise of power by this Court under Article 226 of the Constitution in respect of convict under TADA Act. Division Bench of this Court in said case of Gufran Hasan Qureshi had an occasion to consider provisions of Prison (Bombay Furlough and Parole) Rules, 1959. Paragraphs 10 and 11 in said Judgment are material and hence reproduced herein below:-
"Similar view has been taken by this Court in the following 3 cases: In (Mohd. Ismail and etc. v/s. State of Maharashtra and another) 3, 1988 Bom.C.R. (Cri.) 336: 1988 Cri.L.J. 136, the Division Bench took a view that grant of furlough has a result of releasing the convict who was convicted for the offence punishable under section 22 of the N.D.P.S. Act. Since furlough is a remission of sentence, it was held that such a remission of sentence under section 22 of the N.D.P.S. Act was impermissible in law in view of the mandate of section 32-A of the N.D.P.S. Act, 1985:
In (Hasan Ismail Dalvi v/s. State of Maharashtra)4, Crim. Writ Petition No.648 of 1998, decided on 10th August, 1998, reported in 1999 (5) Bom.C.R. 68 with Criminal Writ Petition No.748 of 98, the question arose as to whether mandamus can be issued for grant of parole or furlough to the petitioners. An argument was advanced that the provisions of section 32-A of the N.D.P.S. Act would be violative of the provisions of Arts. 14 and 21 of the Constitution of India. The argument has, in term been rejected and it has been held that the power to grant suspension remission or commutation of the sentence cannot be exercised if a convict was sentenced for an offence punishable under the N.D.P.S. Act excepting where his case fell under sections 33 and 27 of the said Act.::: Downloaded on - 09/06/2013 13:40:20 ::: [56]
In (Shaikh Salim @ Guddu s/o Sheikh Gani v/s State of Maharashtra and others)5, 1996 (1) Mh.L.J. 843, Division Bench of this Court considered the questions as to whether section 32-A of the N.D.P.S. Act was violative of Arts. 14 and 21 of the Constitution of India. It was held that the offences under the N.D.P.S. Act barring those to which sections 33 and 27 of the said Act applied fell into a separate and special class. Legislative history leading to the passing of the N.D.P.S. Act made it clear that the law was enacted to make stringent provisions for the control and regulation of operation relating to narcotic drugs and psychotropic substances as also for forfeiture of property derived from or used in illicit traffic in narcotic drugs and psychotropic substances. The law was enacted to implement the provisions of International Conventions on Narcotic Drugs and Psychotropic Substances as is clear from the preamble of the N.D.P.S. Act. In this view of the matter, the Division bench came to the conclusion that there was no substance in the challenge to the validity of the provisions of section 32-A of the N.D.P.S. Act on the ground that said provisions violated either Article 14 or 21 of the Constitution. It was, therefore, held that since section 32-A of the N.D.P.S. Act was a special provisions in a special Statute dealing with a special object it could not be said to be unreasonable or affecting the life and liberty of a convict so as to be violative of the provisions of Articles 14 and 21 of the Constitution of India.
11. We may also indicate that similar view has been expressed by many other High Courts though it is not necessary for us to elaborate the said decisions. On the questions as to whether section 32-A of the N.D.P.S. Act, override the provisions of the Prisons rules, there seems to be unanimity of views amongst the High Courts that having regard to the provisions of section 32-A of the N.D.P.S. Act, the persons who are convicted under the said Act, barring the exceptions, are not entitled to be released either on furlough or ::: Downloaded on - 09/06/2013 13:40:20 ::: [57] parole. No suspension, remission or commutation of any sentence awarded under the N.D.P.S. Act can be ordered excepting in cases which are specifically excluded by section 32-A of the N.D.P.S. Act. This view has been expressed in (Ishwar Singh M. Rajput v/s. State of Gujarat)6, 1991(2) Crimes 160; (Berlin Joseph @ Ravi v/s. State)7, 1992(1) Crimes 1222; (Anwar v/s State)8, 1994 Cri. L.J. NOC 414 (Raj); and (Sita Singh v/s. State of Punjab)9, 1995 Cri.L.J. 1733."
19. We thought it fit to consider the aforesaid Judgments under stringent penal law such as N.D.P.S. Act, COFEPOSA and rights of the prisoner of availing prison facilities and availability of remedy of judicial Court review. There is no Judgment of or this Court in respect of the point which the Apex we have framed and answered in the negative and ultimately we propose to refer the issue for consideration by the Larger Bench, in view of its vital importance.
. Assuming that the powers under Article 226 of the Constitution of judicial review are available for convict for seeking Parole or Furlough, orders passed by the prison authorities denying such facilities are in the nature of administrative orders. It is well settled that prison administration must act fairly and orders passed by the authorities must indicate the reasons. Though the scope of writ jurisdiction is ::: Downloaded on - 09/06/2013 13:40:20 ::: [58] limited one, it is settled that even such decisions of the prison administration can be challenged by resorting to the remedy of judicial review. Powers can be exercised for examining the process as to how the decision is passed and not the decision itself.
. We already pointed out that the order in case of Bashir Ahmed passed by the Division Bench of this Court does not come to rescue of the petitioner and we already indicated reasons for the same.
20. It is to be noted that order in Bashir Ahmed Case was rendered in a different factual scenario altogether. There is always peril in treating the words of a judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. (see Padma Sundara Rao v/s. State of Tamil Nadu (2002) 3 S.C.C. 533, which is referred by the Apex Court [Honourable Justice Arijit Pasayat and Honourable Justice S.B. Sinha] in a case of Gangadhar Behera and others v/s. State of Orissa, (2002) 8 ::: Downloaded on - 09/06/2013 13:40:20 ::: [59] Supreme Court Cases, 381).
381) . Thus considering from any angle, order or Judgment in case of Bashir Ahmed rendered by the Division Bench of this Court cannot detain us from taking view that Petition under Article 226, seeking judicial review of order under challenge as well as writ of mandamus to release petitioner on furlough when petitioner is convict under TADA Act in a class case known as Serial Bomb Blast Case, appeal against conviction is still pending before the Apex Court, is misconceived.
ig Moreover, prisoner like petitioner can approach the Apex Court under Article 32 and/or 136, 142 of the Constitution if he is so advised. Such prisoners may apply for same facilities as per Rules framed, for redressal of their grievance. Thus petitioner or prisoners like petitioner are not without remedy. By all means propriety requires that High Court must refrain from exercising its powers under Article 226 of the Constitution in case like present matter.
21. We make it clear that at the cost of repetition we say that we have not observed anything on merit of case. We simply decline to entertain ::: Downloaded on - 09/06/2013 13:40:20 ::: [60] Petition. Jurisdiction under Article 226 of the Constitution is discretionary. We have given deep thought while arriving at this conclusion as at one hand we were confronted with order passed by the Division Bench in Bashir Ahmed case and on other hand we were duty bound to exercise writ jurisdiction for enforcing fundamental rights of citizens and more so when, such a citizen is behind bar.
22. Before pronouncement of this Order, Shri Gavankar, counsel for petitioner prayed for allowing him to withdraw Petition on ground that he may advise to petitioner to apply afresh. Similar request was made by Shri A.R. Borulkar Advocate for petitioner by submitting purshis. Normally we would have easily granted such a request. However, having heard arguments at length and considering importance of issues involved in Petition, we have dealt with points/issues arise for consideration. So far as request of petitioner for withdrawal of Petition is concerned, same is rejected as same was made after reserving Petition for pronouncement of Judgment.
However, we make it clear that petitioner is entitle to make fresh application or renew his request before competent authorities for prison facilities - Furlough ::: Downloaded on - 09/06/2013 13:40:20 ::: [61] or Parole as the case may be, and authorities may consider such application within frame work of the law. Petitioner may approach to the Hon'ble Supreme Court either under Article 32 and/or Article 136/142 of the Constitution of India, if he so advised, and this order shall not come in the way of the petitioner, as we have only declined to entertain Petition for the sake of propriety and reasons mentioned in the Order. Purpose for giving such detail order is that, there is no Authoritative Pronouncement of the Apex Court or this Court Court as regards to availment of judicial review under Article 226 of the Constitution before the High Court by convict of TADA Act and whose statutory appeal by way of right is pending before the Hon'ble Supreme Court and the Hon'ble Supreme Court is seized with the matter, when remedy of judicial review under Article 32 and/or 136/142 of the Constitution of India is very much available.
23. Insofar as scope, ambit and restrictions of the writ jurisdiction under Article 226 of the Constitution are concerned, we may usefully refer to the recent decision rendered by Full Bench - three Judges (comprising of The Hon'ble The Chief Justice ::: Downloaded on - 09/06/2013 13:40:21 ::: [62] Swatanter Kumar, Dr. D.Y. Chandrachud, S.C. Dharmadhikari, JJ.) in case of Tulsiwadi Navnirman Co-operative Housing Society Ltd. v/s. State of Maharashtra and others, 2008 (1) Bom. C.R., 1.
1Issues and questions for consideration in said case were in respect of scope and extent of powers, limits and restrictions of writ jurisdiction of the High Court qua challenge to the orders, actions/ inactions of the Authorities incharge of implementing and/or monitoring the slum, rehabilitation scheme under Maharashtra Slum Areas (Improvement Clearance and Re-development) ig Act, 1971, Maharashtra Regional and Town Planning Act, 1966 and Development Control Regulations for Brihan Mumbai, 1991. Issues and questions raised during the oral arguments before the Division Bench of this Court in said case and other cases considered to be the issues and questions of far reaching public importance and it was further considered to be just, fair and proper to constitute Larger Bench. In our view, applicability of general principle governing writ jurisdiction 'Rule of Prudence and Caution' and availability of an alternate avenue for redressal of grievance before at least one judicial forum, deter us from entertaining the instant petition praying for invoking the writ jurisdiction.
::: Downloaded on - 09/06/2013 13:40:21 ::: [63]This is what the under-current of the judgment of the Full Bench. The Full Bench considered entire case law, particularly, of the Hon'ble Apex Court on the point. We feel that, we are benefited by decision of the Full Bench in case of Tulsiwadi Navnirman Coop.
Housing Society Ltd. [Supra]. The Full Bench referred the following decisions of the Apex Court:-
(a) (Awdesh Tiwari & ors. Vs. Chief Executive Officer, SRA) 2006(5) Bom. C.R. (O.S.) 772: 2006 Mh. L.J. 282;
(b) (Mohamed Hanif Vs. State of Assam), 1969 DGLS 320 : 1969 (2) S.C.C. 782,
(c) (DFO, South Kheri & ors. Vs. Ram Sanehi Singh), 1970 DGLS 8: A.I.R. 1973 s.c. 205:
1971 (3) S.C.C. 864;
(d) (Ram and Shyam Company Vs. State of Haryana & Ors.), 1985 DGLS 186: A.I.R.1985 S.C. 1147: 1985(1) SCALE 1237: (1985) 3 S.C.C. 267,
(e) (Life Insurance Corporation of India Vs. Escorts Ltd.) 1985 DGLS 369: A.I.R. 1986 S.C. 1370: 1985(2) SCALE 1289: 1986 (1) S.C.C. 264,
(f) (Mahavir Auto Stores & Ors. Vs. Indian Oil Corporation & Ors.) 1990 DGLS 126: A.I.R. 1990 S.C. 1031: 1990(1) SCALE 410: 1990 (3) S.C.C. 752;
(g) (Kumari Srilekha Vidyarthi & Ors. Vs. State of UP & Ors.) 1990 DGLS 540: A.I.R. 1991 S.C. 537: J.T. 1990(4) S.C. 211:
1990(2) SCALE 561: (1991)1 S.C.C. 212;
(h) Nilabati Behera (Smt.) Alias Lalita Behera (Through the Supreme Court Legal Aid Committee ::: Downloaded on - 09/06/2013 13:40:21 ::: [64] Vs. State of Orissa & Ors.), 1993 DGLS 262:
A.I.R. 1993 S.C. 1960: J.T. 1993 (2) S.C. 503: 1993(2) SCALE 309: (1993) 2 S.C.C. 746;
(i) (LIC of India & Anr. Vs. Consumer Education & Research Centre & Ors.), 1995 DGLS 641: A.I.R. 1995 S.C. 1811: J.T.1995 (4) S.C. 366:1995 (3) SCALE 627: (1995) 5 SCC 482;
(j) (Indian Statutory Corporation etc. vs. United Labour Union and others), 1996 DGLS 2023: A.I.R. 1997 S.C. 645: 1997 (9) S.C.C. 377: 1997 (2) Supreme 165;
(k) (Verigamto Naveen vs. Govenrment of A.P. and Ors.) 2001 DGLS 1182: A.I.R. 2001 S.C.3609: J.T. 2001 (8) S.C. 29: 2001 (6) SCALE 363: 2001 (8) S.C.C. 344: 2001 (7) Supreme 170;
vs.
(l) (Dwarkaprasad Agrawal (D) by LRs and Anr.
B.E. Agarwal & Ors.) A.I.R. 2003 S.C. 2686
(m) (Union of India and Anr. vs. S.B. Vohra & Ors.), 2004 DGLS 2 : 2004 (1) Supreme 471 :
A.I.R. 2004 S.C. 1402: J.T. 2004 (1) S.C. 38: 2004 (1) SCALE 131: (2004) 2 S.C.C. 150;
(n) (State of U.P. vs. Johri Mal) 2004 DGLS 306: 2004 (4) Supreme 149: A.I.R. 2004 S.C. 3800: J.T. 2004 (Supp. 1) S.C. 443: 2004 (5) SCALE 1: 2004 (4) S.C.C. 714;
(o) (Jayrajbhai Jayantibhai Patel vs. Anilbhai Natthubhai Patel and Ors.), 2006 DGLS 596: 2006 (9) SCALE 147: (2006) 8 S.C.C. 200;
(p) (ZEE Telefilms Ltd. vs. Union of India & Ors.) 2005 DGLS 88: A.I.R. 2005 S.C. 2677:
2005 (2) S.C. 8 : 2005 (1) SCALE 666: 2005 (4) S.C.C. 649: 2005 (1) Supreme 886;
(q) (Noble Resources Ltd. vs. State of Orissa) 2006 DGLS 604: 2006 (9) Supreme 161:
J.T. 2006 (12) S.C. 185: A.I.R. 2007 S.C. ::: Downloaded on - 09/06/2013 13:40:21 ::: [65] 119: (2006) 10 S.C.C. 236;
(r) (Moran M. Baselios Marthoma Mathews II & Ors. vs. State of Kerala & Ors), J.T. 2007 (6) S.C. 282.
. The Full Bench answered the questions framed in paragraph 118. Clause (A), (B), (C), (F) and (H) of paragraph 118 reads as under:
(A) While exercising the Jurisdiction and powers under Article 226 of the Constitution of India in matters concerning Rehabilitation-of Slum Dwellers and schemes framed under relevant statues, distinct yardsticks cannot be carved out nor separate parameters laid down by this Court.
(B) However, the limits and restrictions which are placed on the writ jurisdiction of this Court by Authoritative pronouncements of Supreme Court would govern the writ petitions challenging the orders, actions/inaction of the Authorities in charge of implementing and/or monitoring the slum rehabilitation scheme.
(C) It is clarified that ordinarily a petition under Article 226 of the Constitution of India can be filed and depending upon the facts and circumstances of each case, this Court can decide to intervene, even if, alternate remedy provided above is not exhausted by the petitioner. However, such intervention should be minimum and the Court must abide by the Rule of caution and Prudence enunciated by the Supreme Court in this behalf. In exceptional and deserving cases, this Court would exercise its powers and no general rule can be laid down in that behalf.
(F) Needless to state that the Rule of Prudence and caution evolved by the Supreme Court with regard to exhaustion of alternate remedy would always be applicable. If the ::: Downloaded on - 09/06/2013 13:40:21 ::: [66] disputes and questions raised involve factual aspects or necessitate leading of oral and documentary evidence, then, this Court can refuse to interfere in writ jurisdiction leaving open to the parties, remedy of suit in competent Civil Court or Arbitration.
(H) An exhaustive category of such cases and disputes cannot be framed and the General principles governing writ jurisdiction would be applicable having regard to the facts in each case.
24. In the instant case the questions or the issue for consideration is simple and pertains to the exercise of powers under Article 226 of the Constitution by this Court for entertaining the complaints, grievance or challenges to the orders passed by the Prison Authorities declining the prisoners from availing the prison facilities such as Furlough and Parole when, the prisoner is convicted by the Designated Court under TADA Act, appeal against such conviction is pending before the Supreme Court and the Supreme Court is seized with the matter. In other words, whether it would be just, fair and proper on the part of this Court to entertain such Petition in said circumstances and particularly in cases pertaining security and integrity of the nation, when that pertains to act or omission which falls within the definition of terrorist and disruptive activities,
- clearly anti-national and relates to public peace ::: Downloaded on - 09/06/2013 13:40:21 ::: [67] and tranquillity, and charges are of serious and grave magnitude. In short remedy of Writ Petition or judicial review by this Court under Article 226 of the Constitution is wholly misconceived.
25. We have already noted the events after filing of the Petition and the proceedings of this Court and we were to reject the Writ Petition in limine only on short ground that Petition is misconceived and for the reasons which were disclosed, we clearly point out that petitioner can approach the Apex Court under Article 32 of the Constitution or he may be advised to file interim application in pending Appeal. Though the Petition was lacking in material facts and particulars and there was no required assistance from both the sides, we were confronted with the order passed by Division Bench of this Court at Principal Seat, Mumbai, in Bashir Ahmed's case, as referred to above. In Bashir Ahmed's case, his petition was entertained, allowed and he was released on Furlough.
We examined the facts of Bashir Ahmed case. We dealt with the factual aspects in the aforesaid paragraphs in the earlier part of the Judgment and we rejected the contention of the counsel for the Petitioner for applying the said case on principles of parity.
::: Downloaded on - 09/06/2013 13:40:21 ::: [68]Thereafter we considered the gravity of the crime and seriousness of the matter and we thought it fit to take the matter to its logical end. Shri Gavhankar for the Petitioner insisted for referring the questions or issues for the consideration by the Larger Bench and placing the matter before the Hon'ble the Chief Justice. As we are adopting the said course, it is not necessary to discuss the decisions referred by Shri Gavhankar. Shri Gavhankar argued that later Division Bench cannot take view different from that taken by the earlier Division Bench and proper course ig is to refer the matter to a Larger Bench. The Apex Court in State of Tripura v/s.
Tripura Bar Association, A.I.R. 1999, S.C. Page 1494 observed as under:
"We are of the view that the Division Bench of the High Court which has delivered the impugned Judgment being a co-ordinate Bench, could not have taken a view different from that taken by earlier Division Bench of the High Court..... If the later Bench wanted to take view different than that taken by the earlier Bench, a proper course for them would have been to refer the matter to Larger Bench."
. We, accordingly propose to pass such order.
::: Downloaded on - 09/06/2013 13:40:21 ::: [69]26. SIDE ISSUES:
. So far as stating the material facts and particulars, and verification of the Petition is concerned, we are of the view that the Petition under Article 226 of the Constitution and particularly the Petition like present one, must contain the material facts and necessary particulars and same must be verified in accordance with Rules framed by this Court, called as 'the Bombay High Court Appellate Side Rules, 1960. Chapter III of these Rules is pertaining to the affidavit.
ig We also refer to the decision of
the Division Bench (comprising of R.A. Jahagirdar and
V.P. Salve, JJ.) in case of Saleem Hasan Khan Kasim
Hasan Shaikh v/s. State of Maharashtra, 1986 Mah.
L.R. 1204; and the decision of Division Bench
(comprising of N.V. Dabholkar and A.B. Naik, JJ.) in
a case of Sunil Ramdas Kotkar v/s. State of
Maharashtra, 2005 (4) Bom.C.R. 117. If the contents of the instant Petition are perused, it is clear that not only the Petition is lacking in material facts and particulars but the Petitioner has suppressed the material facts from this Court and even we were required to collect the information from the counsel for the Petitioner as we found it necessary in the ::: Downloaded on - 09/06/2013 13:40:21 ::: [70] facts of the instant case. In this circumstances, we are of the view that Registry of the High Court to direct the concerned department where Petitions are lodged, must undertake the scrutiny of the Petition, at least as regards to the verification. Rules are framed for observing with certain object behind the same. Neglect on the part of the Registry, at least in the instant case, is apparent. Registrar, Judicial of this Court and the Additional Registrars at the respective branches are required to look into the matter seriously and we consequently issue necessary instructions to the concerned.
27. PRISON LEGISLATION . The Prisons Act, 1894 is Central Enactment.
In exercise of the powers conferred by Clauses (5) and (28) of Section 59 of the Prisons Act, 1894 (IX of 1894), in its application to the State of Bombay, the Government of Bombay, made the Rules called as 'The Prisons (Bombay Furlough And Parole) Rules, 1959.
Expressions 'Furlough' or 'parole' are not defined in the Act or Rules, but it is accepted position by virtue of dictionary meaning and judicial pronouncements that Furlough is to be granted ::: Downloaded on - 09/06/2013 13:40:21 ::: [71] periodically for no particular reason, and Parole is to be granted only on a sufficient cause such as cases of severe illness or death of any family member of the prisoner. (Bhikhabai Bhikhabai v/s. State of Gujarat, A.I.R. 1987,Guj. 136 {Full Bench}).
Bench}) The word 'parole' means
the release of a prisoner temporarily for a special
purpose before expiry of the sentence on the promise
of good behaviour and return to jail. It is not a
suspension of the sentence. (Dadu v/s. State of
Maharashtra, (2000) 8 Supreme Court Cases, page 437.)
28. There ig is no denial of the fact that the Prisons (Bombay Furlough and Parole) Rules provides the remedy of availing Parole and Furlough. It provides for the Authority which is required to sanction Furlough, Parole and such other facilities.
There is no dispute, in the instant case, that Deputy Inspector General of Prison, Aurangabad, Respondent No.3, is sanctioning authority. There is also no dispute that Furlough can be rejected for the reasons set out in the Rules. In the instant case, the Furlough is rejected by Respondent No.3 on the grounds as mentioned in the order.
29. As regards to the nature of the facilities of ::: Downloaded on - 09/06/2013 13:40:21 ::: [72] release on Furlough is concerned, it is well settled that the said right is held to be a substantial, legal right conferred on the prisoner. Rules cannot deprive the prisoner of the substantive right to be released on Furlough, provided, requirement in the Rules are complied with. It is not open to the Home Department of the State Government to prescribe Rules giving facilities of release of prisoner on Furlough by one hand and then provide that prisoner has no legal right to release on Furlough. The argument of the prison authorities that even if the conditions prescribed by the Rules are satisfied the prison authorities are not bound to release the prisoners on Furlough, overlooks the distinction between the right to be release on Furlough and right to be release on Parole. Parole is granted for certain emergency and release on Parole is a discretionary right, while release on Furlough is a substantive right and accrues to a prisoner on compliance of certain requirements. Idea behind granting Furlough to a prisoner is that the prisoner should have an opportunity to come out and mix with the society and prisoner should not be continuously kept in jail for a considerable long period (Sharad Sharad Keshav Mehta v/s. State of Maharashtra, 1989, Cri.
L.J. Page 681, a decision by the Division Bench of ::: Downloaded on - 09/06/2013 13:40:21 ::: [73] this Court (comprising of M.L. Pendse and V.P. Tipnis JJ.).
JJ.)
30. It is also now settled that a prisoner who is convicted for charge of murder or like nature and his appeal is pending before the Appellate Court such as High Court or even before the Supreme Court, such convict is entitle for prison facilities of Parole and Furlough. In short, the pendency of an appeal before the Appellate Court- hierarchy of the Code of Criminal Procedure upto the Hon'ble Supreme Court, shall not come in the ig way of convict. In case of Jayant Veerappa Shetty, 1986(1) Bom. C. R., 311, Division Bench of this Court (comprising of C.S. Dharmadhikari and V.V. Waze, JJ.) observed that the authorities have no jurisdiction to entertain the application for furlough and grant parole leave to the convict of murder charge during the pendency of appeal before the High Court.
31. The view taken by Division Bench of this Court in Jayant Veerappa Shetty's Case was not found favour by another Division Bench of the High Court and accordingly this Court in a case of Sharad Bhiku Marchande v/s. State of Maharashtra, 1990(3) ::: Downloaded on - 09/06/2013 13:40:21 ::: [74] Bom.C.R., 633 (comprising of S.P. Kurdukar and Dr. De Silva JJ.) held that the said case to be no more good law and held that the convict is entitle to apply for Furlough under the Furlough Rules despite the pendency of his appeal before the Hon'ble Supreme Court. The controversy did not end there. Another Division Bench of this Court (comprising of R.M.S. Khandeparkar and P.V. Kakade, JJ.) in Criminal Writ Petition No.345 of 2005 decided on 13/4/2005 in case of S. Sant Singh @ Pilli Singh Ajit Singh Kalyani v/s. Secretary, Home Department, Government of Maharashtra, Mantralaya, Mumbai, Mumbai made reference of matter to a Larger Bench observing that bearing in mind the judicial discipline, it will be necessary to refer the matter to a Larger Bench to decide the issue as to whether the provisions of the Prisons (Bombay Furlough and Parole) Rules, 1959 would stand suspended in cases of the convicts who preferred appeal and appellate authority is seized with the matter and till the disposal of the appeal.
. Consequently, the Full Bench of this Court (comprising of Acting Chief Justice V.G. Palshikar, D.B. Bhosale and V.K. Tahilramani, JJ.) was constituted by the Hon'ble the Chief Justice, which ::: Downloaded on - 09/06/2013 13:40:21 ::: [75] answered the reference that the view taken in Jayant Shetty's case is no more good law, the competent authority has power to grant parole under the Prison Rules framed under the Prison Act and thus view taken in the decision of the Division Bench presided over by Justice S.P. Kurdukar in case of Sharad Marchande, was reaffirmed. The decision of Full Bench in case of S. Sant Singh case is now reported in 2006(1) Bom.C.R. (Cri.) 743.
. Thus, the point as regards entitlement of the
convict for
prison facilities who is undergoing
sentence and whose appeal is pending before the
appellate court, in High Court or even upto the
Supreme Court, is settled and he is entitle for prison facilities such as Parole and Furlough and he can avail the remedy of judicial review under Article 226 of the Constitution of India by filing Petition before the High Court. There is no quarrel with the principles laid down by the Division Bench as well as the Full Bench in above referred cases. The point in the instant case pertains to the availability and or access to the remedy of judicial review under Article 226 of the Constitution of India by convict/ prisoner who is undergoing the sentence in pursuance to the ::: Downloaded on - 09/06/2013 13:40:21 ::: [76] Judgment and Order of conviction passed by the Designated Court under the TADA Act or like such stringent penal provision, whose statutory appeal under Section 19 of the Act is pending before the Supreme Court. Sub Section 2 of Section 19 clearly bars any other Courts than the Supreme Court to entertain any appeal or the revision challenging the orders passed by the Designated Court except as provided under Sub Section 1 of Section 19 of the TADA Act i.e. appeal as of right before the Supreme Court.
We are of the view that such a prisoner cannot be
deprived of
prison facilities such as Furlough and
Parole by the State Government or the prison
authorities. The Prison Authorities are required to
act within the framework of the Act and the Rules.
Facilities such as Parole and Furlough are given to
the prisoner as of right. Said right is held to be
legal and substantial. We accept the position that
convicts under the Penal Code as a general penal law
can avail the remedy under Article 226 of the
Constitution for seeking the judicial review of his
grievance and his deprivation of such facilities.
32. We make the departure in respect of convict who is prosecuted and found guilty under stringent law ::: Downloaded on - 09/06/2013 13:40:21 ::: [77] like TADA Act. We have discussed above that legislation like TADA Act is class legislation.
Classification so made is reasonable and thus the remedies for appeal etc. are governed by the said Statute and not by the general procedural law i.e. Code of Criminal Procedure. Bearing in mind the intention of the legislation in enacting such a law, which is held to be constitutional in case of Usmanbhai Dawoodbhai (supra), we firmly declare that such convict is not amenable to the remedy of judicial review under Article 226 of the Constitution of India and if such Petition is filed, this Court would not be justified in entertaining such Petitions. We say so bearing in mind the provisions of TADA Act as well as seriousness of Bomb Blast Case. Trial of the said case continued for about 13 years. The accused who are held guilty for the anti national activities, crime committed by them is of serious nature and grave magnitude, such accused falls in the separate class and hence classification can be made and remedy of judicial review to the extent of High Court in exercise of Article 226 of the Constitution can be denied. Again, appeals of such convicts are dealt by Hon'ble Supreme Court. Incidentally, grievance of violation of fundamental right such as prison ::: Downloaded on - 09/06/2013 13:40:21 ::: [78] facilities like Furlough and Parole can very well be made before the Hon'ble Supreme Court under Article 32 of the Constitution of India. Article 32 is not only remedy for complaining violation of fundamental right, but such remedy itself is guaranteed as fundamental right by Constitution of India. Again, Supreme Court is seized with the appeals of convicts by the Designated Courts under TADA Act. There are number of convicts. They are lodged in several prisons in different part of the State. This Court has a Principal seat at Mumbai and Benches at Nagpur, Aurangabad and Panaji- Goa. Considering all these aspects of the matter, in our view, the instant Writ Petition is misconceived and the same is rejected in limine.
33. Hence the following order:-
(A) This Criminal Writ Petition No.260 of 2008 filed under Article 226 of the Constitution of India for seeking the relief as prayed for, is hereby rejected in limine.
(B) In view of the above Order, petitioner is at liberty to avail the remedy of judicial review under ::: Downloaded on - 09/06/2013 13:40:21 ::: [79] Article 32 of the Constitution of India before the Hon'ble Apex Court and/or by appropriate application in pending appeal before the Hon'ble Apex Court, if so advised.
(C) Petitioner is also at liberty to make an application afresh for seeking Furlough before the Competent Authorities or seeking other prison facilities as admissible and the Authorities may consider the request of the petitioner in accordance with law.
(D) Registrar (Judicial) of this Court to place the papers of this Writ Petition before the Hon'ble the Chief Justice at the earliest for appropriate order for formation of Larger Bench in respect of the issue framed in para no. 11 and views expressed in answer thereto by us. Registrar (Judicial) is directed to get the requisite copies of the papers with translation of Marathi documents, for the convenience of consideration by the Larger Bench.
(E) So far as filing of an affidavit in a Petition under Article 226 of the Constitution of India is ::: Downloaded on - 09/06/2013 13:40:21 ::: [80] concerned, Registrar (Judicial) to issue appropriate directions to all the concerned, by referring to the observations in the body of this Judgement, to undertake scrutiny of petitions, particularly, verification of petition and concerned be directed not to accept petitions which are not verified, in respect of which exemption is not sought for and granted specifically by the Court.
(F) No order as to the costs.
.
Sheristedar of this Court to forthwith issue
authenticated copy of this order to the learned
counsel for the petitioner, free of cost.
[SANTOSH BORA, J] [N.V.DABHOLKAR, J] sjv/unip/resi ::: Downloaded on - 09/06/2013 13:40:21 ::: [81] .UP 10 2; Fixed-pitch, local; -n -ml4 -PA4 -dFX-NORMAL -Fx -e -
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.PL60 ::: Downloaded on - 09/06/2013 13:40:21 ::: [82] .HE2 (#) IN THE HIGH COURT OF JUDICATURE OF BOMB BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.260/2008 IN ig ------------------------------------
Sardar Shahwali Khan Aged 54 years, residing at Room No.10-11, Goawala Chawl, L.B.S. Road, Kurla (West), Mumbai-400 070, (now confined at Aurangabad Central Prison,Aurangabad) .. PETITIONER VERSUS
1. State of Maharashtra ::: Downloaded on - 09/06/2013 13:40:21 ::: [83]
2. The Superintendent, Aurangabad Central Prison, Aurangabad.
3. The Deputy Inspector General of Prisons, Central Region, Harsul, Aurangabad. .. RESPONDENTS ....
Shri N.N.Gavankar with Shri A.R.Borulkar,Adv.fo igapplicant.
Smt.Reddy,A.P.P.for respondents ....
CORAM : N.V.DABHOLKAR,J.
JUDGMENT RESERVED ON : 27/06 JUDGMENT PRONOUNCED ON:07/08 ................L.......T.......T.......T.......T.......T......
JUDGMENT :
.SP2 . This is Writ Petition by petitioner, convicted by designated Court, under Terrori Disruptive Activities (Prevention) Act, 198 ::: Downloaded on - 09/06/2013 13:40:21 ::: [84] short TADA Act), in Bombay Bomb Blast Case No. by judgment of conviction dated 24/11/200 sentenced to suffer life imprisonment on 6/ seeking quashment of order dated 31/1/2008, pa Deputy Inspector General of Prisons (respondent herein, thereby rejecting his application for on furlough. Petitioner has also praye directions for his release on furlough on such and conditions as this Court may deem fit and p
2. I have benefit of going through elabor ig studious draft judgment running in 68 pages, learned brother Judge. By operative part as co in para 33, the Writ Petition is dismissed in However, it is also observed that petitioner liberty to avail the remedy of judicial review Article 32 of the Constitution of India before the Apex Court. Petitioner is also given libe apply afresh for seeking release on furlough the competent authority.
. Registrar (Judicial) of this Court is d to place the papers of this Writ Petition HOn'ble the Chief Justice, seeking appropriate for constitution of a Larger Bench for the pur considering issue framed and views expressed judgment.
. So far Clause "E" of the operative or ::: Downloaded on - 09/06/2013 13:40:21 ::: [85] concerned, those are directions to the registry
3. Learned brother Judge has framed two po para 11 of the judgment and answered tho reproduced herein below :
.SP1 [a] Whether in facts and circumsta the case, this petition under Article the Constitution of India filed by pet ig (who is convicted and sentenced by Des Court under TADA Act), deserves entertained/adjudicated/decided by this .. ANSWERED IN NEGATIVE.
[b] In this view of the matter, said point/issue is required to be refe a Larger Bench for decision ?
.. ANSWERED IN AFFIRMATIVE.
.SP2 . For reasons summarised in para 32 judgment, learned brother Judge feels tha ::: Downloaded on - 09/06/2013 13:40:21 ::: [86] Petition is misconceived and deserves to be r in limine. Those can be summarised as under :
A departure is necessary in respect of found guilty under stringent law lik Act. Such convict is not amenable remedy of judicial review under Article the Constitution of India. And the this Court would not be justifi ig entertaining such petitions, taking consideration also seriousness of bomb cases. The convict is held guilt anti-national activities, for a cri serious nature and grave magnitude.
accused falls in a separate class and be classified in the category where re judicial review under Article 226 Constitution of India can be denied.
appeals of such convicts are to be dea by Hon'ble the Supreme Court, the griev violation of fundamental right by den prison facilities like furlough and par also be agitated under Article 32 Constitution. (Availability of al remedy).::: Downloaded on - 09/06/2013 13:40:21 ::: [87]
. Learned brother Judge feels that a re is necessary in view of the fact that the pr are lodged in several prisons in different pa the State, their applications for similar relie be required to be dealt with at Principal s Mumbai and benches at Nagpur, Aurangabad and (Goa).
4. Learned brother Judge has taken surve plethora of case law. In Sharad V/s St Maharashtra (1991 Cri.L.J.2109) Division Bench High Court held that application of prison furlough, cannot be rejected on the ground th appeal is pending. The Full Bench of this High in the matter of Santsing V/s Secretary, Home Vol.1, B.C.R.(Cri) 743, held that view taken by Virappa Shetty's case (1986 Cri.L.J.1298), Cri.L.J.1298) is a good law.
. In para 17 of the draft jud
disinclination to entertain petition under A
226 of the Constitution, is indicated inspi
observing :-
.SP1
"We are also of the view that auth
under Prison Act and Rules made ther
::: Downloaded on - 09/06/2013 13:40:21 :::
[88]
are empowered and authorised to rel
prisoner/convict of TADA Act or an Act nature, within the framework of the A the Rules and subject to limitations said provisions, a prisoner is entitl such facilities by way of lega substantive right, no matter he is a under TADA."
.SP2 .
ig In the same para 17, in further part a 26, it is observed that case of the petitioner in this category of self-imposed restraint, than constitutional or statutory bar.
. After considering the ratio laid down matter of Osmanbhai V/s State of Gujarat, (AI S.C.922) and judgment in the matter of Kartars State of Punjab (1994 Vol.3, S.C.C.569) which the constitutional validity of TADA Act and als referring to the text of Section 19 of TADA Act observed at page 33 of the draft judgment that of Section 19 of TADA Act, powers of judicial under Articles 226/227 of the Constitution ves the High Courts, cannot be said to be affected attempt to exclude the High Court from exercis powers, may be clearly unconstitutional.
brother Judge has taken a note of the observat ::: Downloaded on - 09/06/2013 13:40:21 ::: [89] the Supreme court in the following cases, to fo effect :
.SP1 [I] Minerva Mills Ltd. V/s Un India, (AIR 1980 S.C.1789) :
"Judicial review is a vital principle Constitution and it cannot be ab ig without affecting the basic structure Constitution."
[II] S.P.Sampatkumar V/s Union of (1987 Vol.1 S.C.C.124) :
"Powers under Article 226 and 227 Constitution cannot be taken away even
amendment to the Constitution and that amendment is invalid and unconstitu being against the doctrine of structure".
[III] Chandra Kumar V/s Union of Indi
Vol.3 S.C.C. 261) :
::: Downloaded on - 09/06/2013 13:40:21 :::
[90]
"That Clause 2(d) of Article 323-A and
3(d) of Article 323-B, to the exten
exclude the jurisdiction of the High
and the Supreme Court under Articles
and 32 of the Constitution,
unconstitutional".
.SP2
5. Reference is also made to judgment o
Bench of the Gujarat High Court, in the mat
Suresh Ramtirath Yadav V/s State of Gujarat,
Cri.L.J. 1834), wherein Gujarat High Cou
declined to entertain the petition under Artic
of the Constitution,of an accused under TAD
complaining his detention to be illegal and
for a writ of Habeas Corpus. This was a matter
case was pending before Designated Court.
. The view taken in the matter of Gurfan
Qureshi V/s The State of Maharashtra, (1999
Bom.C.R. 744,
744 by Division Bench of this High
that convicts under N.D.P.S. Act, are not enti
be released on parole/furlough, as no susp
remission, or commutation of sentence awarded
N.D.P.S. Act, can be ordered, excepting cases
are specifically excluded by Section 32-A of t
is referred. The writ petition in that matt
held misconceived, not because there is
::: Downloaded on - 09/06/2013 13:40:21 :::
[91]
judicial review, but because there is specif
against grant of parole/furlough in the Act
It appears that the view of Division Bench
Bombay High Court in that matter is somewhat
the observations of the Supreme Court in a
judicial pronouncement and in the matter of
Tulsidas V/s State of Maharashtra (AIR 200
3203).
3203)
6. Having gone through the entire judgment learned brother Judge, it is noticed that ig nowhere observed that "Judicial Review" under 226 of the Constitution, is not available prisoners, including convicts under TADA Act, orders passed by competent authorities, under Act and Rules and more particularly orders re the release, either on furlough or parole, wh permissible under relevant Rules. If we desire :
"In facts and circumstances of the cas Petition under Article 226 of the Const does not deserve to entertained/adjudicated/decided".
. Or in other words, in case we des
refrain, for the reasons to be recorded, in th
::: Downloaded on - 09/06/2013 13:40:21 :::
[92]
of facts and circumstances of particular case
particular convict/prisoner, from considering j review of an order, denying furlough/parole f to the prisoner, no reference to Larger Bench s be necessary. In the order passed by another D Bench at Bombay seat, in the matter of Bashir A Criminal Writ Petition No.686/08, the Division has ordered release of petitioner therei furlough, in the light of facts and circum pertaining to that petitioner. Earlier Divisio has no where recorded that in a given case and ig peculiar facts and circumstances of case of par convict/prisoner, because judicial revi constitutionally permissible, High Court shall able to refrain entertaining/adjudicating/deciding the pe challenging orders of denial of relea furlough/parole. Till the time there is n contra view in the field, we or any other D Bench is at liberty to refrain from enter petitions under Article 226 of the Constitutio other words, unless there is conflict of view benches of equal strength, there is no necess refer the matter to a Larger Bench. In fact, draft judgment of learned brother Judge, the j is concluded by dismissal of Writ Petition in by indicating that the Court is not incli entertain the Writ Petition for the reasons r in para 32 of the judgment. Since there is no ::: Downloaded on - 09/06/2013 13:40:21 ::: [93] view in the field, we can do so and in the abs contra view in the field, there is no necess reference to a Larger Bench. Moreover, if w support for such a view that High Court should restraint; then it would also be inappropri dispose of the present Writ Petition on that atleast until we have an answer to the referen Larger Bench.
. Only if we wish to say that remedy of j review under Article 226 of the Constitution ig orders of refusal of furlough/parole is not av to convicts/prisoners under TADA Act, that may conflicting view with the one impliedly earlier Division Bench, by entertaining th Petition. However, learned brother Judge has observed that remedy of judicial review is ava yet it is a question whether High Court should restraint in some cases, in the light of p facts and circumstances.
. Remedy under Article 226 of the Const is discretionary and in a given case, High Cou always refuse to entertain the petition on grounds, such as availability of alternate petitioner not coming with clean hands and so o . In view of the reasons as above, respectfully in disagreement with learned ::: Downloaded on - 09/06/2013 13:40:21 ::: [94] Judge, so far as making a reference to a Large is concerned. However, I am aware that when w differed on the issue whether matter sho referred to Larger Bench or not, the matter wi to be referred to a third Judge, as may be no by Hon'ble the Chief Justice.
7. So far as dismissal of the Writ Petit limine, learned counsel for the petitioner, a belatedly had prayed for withdrawal of the pe in fact, a purshis is submitted by Adv.Shri ig on 15/7/2008. It is informed that since perio months has lapsed from the date of his application for furlough leave, the petition applied afresh for furlough leave to the co authority. Present Writ Petition is therefore, to be withdrawn as the same has become infru In the draft judgment, my learned brother Jud kept open, liberty to the petitioner eit approach Hon'ble Apex Court or to approac competent authority for furlough leave, insp arriving at conclusion that Court is not incli entertain Writ Petition under Article 226 Constitution of India, for judicial review of order, rejecting prayer for release on furloug petitioner had sought to withdraw the petition our judgment was ready, I am of the view th withdrawal can be considered to be permitted, academic aspect, whether High Court should ::: Downloaded on - 09/06/2013 13:40:21 ::: [95] restraint against entertaining such petitions considered in some matter in future. I therefore, be inclined to allow the withdrawal Writ Petition, without recording any reasons on of the Court.
8. Since, even on this aspect, I have expr view departing from the view taken by my e brother, it has become inevitable to place the before the Hon'ble the Chief Justice, so that can be placed before third Hon'ble Judge, as r ig under Rule 15 of Chapter XVII of Bombay High Appellate Side Rules, 1960.
[N.V.DABHOLKAR,J.] umg/criwp260-2008 ::: Downloaded on - 09/06/2013 13:40:21 ::: [96] ::: Downloaded on - 09/06/2013 13:40:22 ::: [97] ::: Downloaded on - 09/06/2013 13:40:22 ::: [98] ::: Downloaded on - 09/06/2013 13:40:22 ::: [99] ::: Downloaded on - 09/06/2013 13:40:22 ::: [100] ::: Downloaded on - 09/06/2013 13:40:22 ::: [101] ::: Downloaded on - 09/06/2013 13:40:22 ::: [102] ::: Downloaded on - 09/06/2013 13:40:22 ::: [103] ::: Downloaded on - 09/06/2013 13:40:22 ::: [104] ::: Downloaded on - 09/06/2013 13:40:22 ::: [105] ::: Downloaded on - 09/06/2013 13:40:22 ::: [106] ::: Downloaded on - 09/06/2013 13:40:22 ::: [107] ::: Downloaded on - 09/06/2013 13:40:22 ::: [108] ::: Downloaded on - 09/06/2013 13:40:22 ::: [109] ::: Downloaded on - 09/06/2013 13:40:22 ::: [110] ::: Downloaded on - 09/06/2013 13:40:22 ::: [111] ::: Downloaded on - 09/06/2013 13:40:22 ::: [112] ::: Downloaded on - 09/06/2013 13:40:22 :::