Bombay High Court
Suhail Mohd. Kasam Shaikh vs The State Of Maharshtra And Ors on 3 August, 2021
Equivalent citations: AIRONLINE 2021 BOM 2935
Bench: S.S. Shinde, N.J. Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 200 OF 2021
Suhail Mohd. Kasam Shaikh
(brother of Zuber Mohd. Kasam
Shaikh, convict confned at Nashik
Road Central Prison, Nasik Road)
Aged 40 years, Occup. : Nil,
Residing at 525, Janta Sevak Society,
Mori Road, Mahim (West),
Mumbai-400 016. ...Petitioner
vs.
1. The State of Maharashtra.
2. The Superintendent,
Nasik Road Central Prison,
Nasik Road.
3. The D.I.G. (Prison)
Central Region, Harsul,
Aurangabad.
4. The Addl. D.G. (Police) & I.G.,
(Prison), State of Maharashtra,
Central Bldg., Pune-411 001. ...Respondents
***
Mr.Manas Gawankar for petitioner.
Mr.K.V. Saste, APP for the State.
***
CORAM : S.S. SHINDE &
N.J. JAMADAR, JJ.
Reserved for Judgment on : 9th July 2021.
Digitally
signed by
SHRADDHA
Judgment Pronounced on : 3rd August 2021.
SHRADDHA KAMLESH
KAMLESH TALEKAR
TALEKAR Date:
2021.08.03 ******
20:28:57
+0530 JUDGMENT (PER N.J. JAMADAR, J.) :
1. Rule. Rule made returnable forthwith and, with the consent
of the learned counsels for the parties, heard fnally.
Shraddha Talekar, PS 1/16
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2. The challenge in this petition under Article 226 of the
Constitution is to the order dated 19th August 2020, passed by the
respondent No.4-Additional D.G. (Police) & I.G. (Prison), Pune
confrming the order dated 19th November 2019 passed by the
D.I.G. (Prison), Central Region, Aurangabad-respondent No.3,
whereby the prayer of Zuber Mohd. Kasam Shaikh, the convict, a
brother of the petitioner, to grant furlough was rejected.
3. This petition which, in effect, represents a second round of
litigation, arises in the backdrop of the following facts :-
(a) The convict was convicted by the Special Court,
Greater Bombay, in MCOC Special Case No. 1 of 1999
by judgment and order dated 5th September 2000, for
the offences punishable under section 302 of the
Indian Penal Code, 1860 ('the Penal Code') and section
3(1)(i) of the Maharashtra Control of Organised Crime
Act, 1999 ('MCOC Act') and sentenced to death.
(b) In Criminal Appeal No.679 of 2000 along with
Confrmation Case No.1 of 2001, the convict came to
be acquitted by this Court by order dated 6 th August
2009.
(c) In Criminal Appeal No. 91-94 of 2006,
Shraddha Talekar, PS 2/16
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preferred by the State of Maharashtra, the aforesaid
order of acquittal was set aside and the convict was
convicted for the offences punishable under section
302 of the Penal Code and section 3(1)(i) of MCOC Act
and sentenced to suffer, inter-alia, imprisonment for
life.
(d) The convict surrendered on 6th August 2009.
The convict had since been undergoing the sentence of
imprisonment. In the meanwhile, on 20 th July 2017,
the convict was convicted by the learned Additional
Chief Metropolitan Magistrate, Ahmedabad in Criminal
Case No.185/2008 for the offences punishable under
section 120-B, 465, 467, 471 and 114 of the Penal
Code and section 12 of the Passport Act, 1950 and
sentenced to suffer seven years imprisonment for the
major offences.
(e) For completion of narration, it is necessary to
note that the convict has already undergone the
imprisonment pursuant to the conviction by the
learned Additional Chief Metropolitan Magistrate,
Ahmedabad in Criminal Case No.185/2008, as
Shraddha Talekar, PS 3/16
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certifed vide communication dated 4 th November 2017.
(f) The convict preferred an application for
release on furlough. By order dated 18 th March 2019,
the request was turned down by the respondent No.3
as the police did not recommend the release of the
convict on the ground of public peace and tranquility,
within the meaning of sub-rule (4) of Rule 4 of the
Prisons (Bombay Furlough and Parole) Rules, 1959
("Rules, 1959").
(g) An appeal thereagainst was dismissed by the
respondent No.4, by order dated 29th June 2019.
(h) The convict invoked the writ jurisdiction of
this Court in Writ Petition No.4923 of 2019. By an
order dated 6th November 2019, this Court quashed
and set aside both the orders and directed the
respondent No.3 to pass a fresh order within six weeks
thereof.
(i) The respondent No.3 again negatived the
request of the convict for grant of furlough by the
impugned order, dated 19th November 2019 invoking
Rule 4(4) and (20) of the Rules, 1959, citing adverse
Shraddha Talekar, PS 4/16
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police report and the apprehension of jumping the
furlough, respectively. The appeal preferred by the
convict met the same fate.
(j) Espousing the cause of the convict, the
petitioner has again invoked the writ jurisdiction of
this Court.
4. We have heard Mr.Manas Gawankar, the leaned counsel for
the petitioner and Mr.K.V. Saste, the learned APP for the State, at
some length. With the assistance of the learned counsels, we have
perused the material on record, including the reports and the
details of incarceration furnished by the respondent No.2-
Superintendent, Nashik Road Central Prison.
5. Mr.Gawankar, the learned counsel for the petitioner
strenuously urged that the authorities have fallen into a similar
and familiar error in rejecting the prayer for release on furlough
on bald and unsubstantiated grounds of adverse police report and
apprehension of jumping the furlough. Mr.Gawankar laid
emphasis on the fact that the authorities were not free to ascribe
the very same reasons, which allegedly weighed with them in
negating the prayer of the convict on the frst instance, especially
Shraddha Talekar, PS 5/16
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after those orders were set aside and they were directed to take a
decision afresh. Reiteration of the very same grounds, according
to Mr. Gawankar, betrays a clear and manifest non-application of
mind.
6. Mr. Gawankar would further urge that, on an analysis of the
material, it becomes abundantly clear that both the grounds are
not at all sustainable. No particulars are furnished which would
justify adverse recommendation. Nor the apprehension of non-
surrendering to prison is reasonable, if considered in the light of
the fact that the convict was a free man from the date of his
acquittal by this Court till he surrendered in deference to the
order of the Supreme Court. This factor has not at all been
considered by the authorities, urged Mr. Gawankar.
7. In opposition to this, Mr. Saste, the learned APP would urge
that having regard to the serious offences, for which the convict
was convicted by the Supreme Court, the apprehension on the
part of the authorities that if the convict is released on furlough,
it would lead to law and order problem within the limits of Mahim
Police Station, which is a sensitive area, cannot be said to be
unfounded. Likewise, in the backdrop of the circumstances of the
case, there is no assurance that the convict would surrender to
Shraddha Talekar, PS 6/16
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prison. The authorities were, according to Mr. Saste, within their
rights in declining to extend the beneft of furlough to the convict.
8. Sub-rules (4) and (20) of Rule 4, which have been invoked to
deny furlough to the convict, read as under :-
"4. Eligibility for furlough :
All Indian Prisoners except from following
categories whose annual conduct reports are good shall
be eligible for furlough :-
.....
(4) Prisoners whose release is not recommended in
Police Commissionerate area by the Assistant
Commissioner of Police and elsewhere, by the Deputy
Superintendent of Police on the grounds of public peace
and tranquility.
....
(20) Who is in the opinion of police/prison authorities
are likely to jump furlough."
9. On a plain construction, under sub-rule(4) of Rule 4,
furlough can be refused when the same is not recommended by
the Commissioner of Police, in Mumbai, and under sub-rule (20),
when the jurisdictional police and prison authorities entertained
an apprehension that the convict is likely to jump furlough. These
Rules are required to be construed in a pragmatic and meaningful
manner. A decision not to extend the beneft of furlough deserves
to be tested in the context of its reasonableness as well as on the
touchstone of the philosophy which pervades the release of
prisoners on furlough and parole. Mere formal compliance with
Shraddha Talekar, PS 7/16
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the statutory provisions in the sense that the jurisdictional police
has not recommended the release or expressed an apprehension
that the convict would not surrender, would militate against the
objective of correctional therapy.
10. A proftable reference can be made to a judgment of the
Supreme Court in the case of Asfaq Vs. State of Rajasthan & Ors.
1
, wherein the petitioner was convicted for the offences punishable
under the Terrorist and Disruptive Activities (Prevention) Act,
1987. Expounding the physiology behind the release of the
prisoners on parole and furlough, the Supreme Court observed as
under :
"15 A convict, literally speaking, must remain in jail
for the period of sentence or for rest of his life in case he
is a life convict. It is in this context that his release from
jail for a short period has to be considered as an
opportunity afforded to him not only to solve his personal
and family problems but also to maintain his links with
society. Convicts too must breathe fresh air for at least
some time provided they maintain good conduct
consistently during incarceration and show a tendency to
reform themselves and become good citizens. Thus,
redemption and rehabilitation of such prisoners for good
of societies must receive due weightage while they are
undergoing sentence of imprisonment.
....
18 The provisions of parole and furlough, thus,
provide for a humanistic approach towards those lodged
in jails. Main purpose of such provisions is to afford to
them an opportunity to solve their personal and family
problems and to enable them to maintain their links with
society. Even citizens of this country have a vested interest
in preparing offenders for successful re-entry into society.
Those who leave prison without strong networks of
1 (2017)15 SCC 55
Shraddha Talekar, PS 8/16
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support, without employment prospects, without a
fundamental knowledge of the communities to which they
will return, and without resources, stand a signifcantly
higher chance of failure. When offenders revert to criminal
activity upon release, they frequently do so because they
lack hope of merging into society as accepted citizens.
Furloughs or parole can help prepare offenders for
success.
....
21 Another vital aspect that needs to be discussed is
as to whether there can be any presumption that a person
who is convicted of serious or heinous crime is to be, ipso
facto, treated as a hardened criminal. Hardened criminal
would be a person for whom it has become a habit or way
of life and such a person would necessarily tend to
commit crimes again and again. Obviously, if a person has
committed a serious offence for which he is convicted, but
at the same time it is also found that it is the only crime
he has committed, he cannot be categorised as a
hardened criminal. In his case consideration should be as
to whether he is showing the signs to reform himself and
become a good citizen or there are circumstances which
would indicate that he has a tendency to commit the
crime again or that he would be a threat to the society.
Mere nature of the offence committed by him should not
be a factor to deny the parole outrightly. Wherever a
person convicted has suffered incarceration for a long
time, he can be granted temporary parole, irrespective of
the nature of offence for which he was sentenced. We may
hasten to put a rider here, viz. in those cases where a
person has been convicted for committing a serious offce,
the competent authority, while examining such cases, can
be well advised to have stricter standards in mind while
judging their cases on the parameters of god conduct,
habitual offender or while judging whether he could be
considered highly dangerous or prejudicial to the public
peace and tranquillity etc."
(emphasis supplied)
11. Release on parole and furlough serves dual interest. It
provides the prisoner an opportunity to maintain the link with the
society. It also serves the society's interest of assimilating the
Shraddha Talekar, PS 9/16
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prisoner into the society as a responsible citizen. From this
standpoint, the seriousness of the offence for which the prisoner
has been convicted and sentenced can not be, the be all and end
all of the consideration. Antecedents and conduct of the prisoner,
during the period of incarceration, and attendant circumstances
play signifcant role.
12. On the aforesaid touchstone, reverting to the facts of the
case, it is imperative to consider whether the authorities were
justifed in declining the beneft of furlough on the strength of the
supposedly adverse recommendation. From the perusal of the
material on record, including the report submitted by the
Superintendent (Prison)-respondent No.2, what we gather is that
the jurisdictional police gave a report that Mahim Police Station,
within the limits of which the offence was committed by the
convict, covers a sensitive area. If a person like the convict, who is
undergoing sentence for a serious offence is released, the
possibility of breach of law and order cannot be ruled out. Nor can
it be assured that the proposed surety would be in a position to
keep a tight leash on the convict.
13. We fnd that the aforesaid reason is extremely
unsatisfactory. There is not a shred of material to indicate that
Shraddha Talekar, PS 10/16
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the apprehension on the part of the authorities is borne out by
the relevant circumstances. No particulars which would justify the
apprehension have been furnished. It was nothing more than a
mere ipse-dixit.
14. This Court has, time and again, deprecated the practice of
depriving a prisoner of the legitimate release on furlough by
routinely ascribing the reason of adverse police report. A useful
reference can be made to a Division Bench judgment in the case
of Sanjay Kisan Kadse Vs. State of Maharashtra 2
, wherein this
Court frowned upon the practice of rejecting the applications by
ascribing non-est reasons. Paragraph Nos. 6 and 7 of the said
judgment read as under :
"6 It is unfortunate that in many matters, the
competent Authorities have passed orders rejecting
applications of prisoners for furlough leave on the
grounds which are non est. This court as well as other
High Courts from time to time have issued various
directions in this regard and also categorically observed
about the material, which would be required to be
considered by the competent Authorities while
considering the applications for grant or refusal of
furlough leave. Rule 4 of the Prisons (Bombay Furlough
and Parole) Rules, 1959 clearly denotes contingencies in
which furlough leave of the prisoner can be refused.
Similarly, the competent Authorities are also required to
consider the law laid down by the High Courts and the
Apex Court in this regard and after such consideration,
the competent Authorities are expected to pass orders
one way or the other, which are sustainable in law.
7. Similarly, in many matters, it is noticed by us that
the orders passed by the competent Authorities rejecting
2 2004(1) Mh.L.J. 789
Shraddha Talekar, PS 11/16
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the applications for furlough leave are in a very casual
manner completely ignoring the provisions of Rule 4 of
the Prisons (Bombay Furlough and Parole) Rules, 1959
and, therefore, the orders demonstrated total non-
application of mind on the part of the competent
Authorities and rendered them invalid in law. In many
matters, the competent Authorities rejected the
applications for furlough leave in the routine manner only
on the basis of adverse Police reports, which are
submitted on the basis of statements of witnesses of the
opposite side and, therefore, as we have already observed
hereinabove, such orders cannot be sustained. The
competent Authorities, who are entrusted with the
powers of grant or refusal of furlough leave, which is the
right of the prisoner, are expected to apply their mind to
the facts and circumstances of the case keeping in view
the contingencies mentioned in Rule 4 of the Prisons
(Bombay Furlough and Parole) Rules, 1959 and only
thereafter, should express their opinion in this regard.
Similarly, mere observations in the Police report that
there is a likelihood of breach of peace if prisoner is
released on furlough leave should not be the formal
expression only to deprive the prisoner from availing the
furlough leave. The Police Authorities should be in a
position to substantiate their opinion by giving valid
reasons for the same. We expect that in future all these
factors will be kept in mind by the competent Authorities
while considering the applications for grant or refusal of
furlough leave."
(emphasis supplied)
15. In the context of the seriousness of the offences, for which
the convict has been convicted, and which constitutes the thrust
of the resistance on the part of the State, a reference to another
Division Bench judgment of this Court in the case of Mohamed
Moin Faridulla Qureshi Vs. The State of Maharashtra & Ors. 3,
pertaining to a convict in Bombay Bomb Blast Case, may be
apposite. In the said case, after adverting to Rules 2 to 4 of the
3 2009 SCC OnLine Bom 158
Shraddha Talekar, PS 12/16
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Rule, 1959, the Division Bench observed as under :
"6 We have already indicated from the text of the
impugned order, the reasons recorded by the police
authorities and Superintendent Prisons for negative
recommendation. The Police authorities have simply
said that the offence under Indian Penal Code and
TADA Act is registered against the petitioner. DIG
Prisons, in his order does not say that Commissioner
of Police Bombay has recommended in the negative
because Commissioner of Police Bombay apprehends
danger of public tranquillity or public peace, in case
the petitioner is released on furlough.
The Superintendent Prisons has also said that
the petitioner is a convict in a serious offence. The
text of the impugned order does not indicate that the
Superintendent Prisons, to have reported the
conduct of the prisoner unsatisfactory. The report of
police authorities and Superintendent Prisons, as
reflected in the text of impugned order, do not
indicate that the adverse recommendation were
founded on the reasons available under Sub Rule 4
and 6 of Rule 4 of the Prisons [Bombay Furlough
and Parole] Rules 1959.
................
8 If at all, the legislature desired that the
prisoners in the serious matters like Bombay Bomb
Blast Case, should not be entitled to liberty of
enjoying parole or furlough, legislature could have
amended Rule 4 of the Prisons [Bombay Furlough
and Parole] Rules, 1959.
9 Since these Rules which are framed in
exercise of powers conferred by clauses [5] and [28]
of Section 59 of the Prisons Act, 1894 by the then
Government of Bombay and since present
Government of Maharashtra has not effected any
amendment to these Rules, the statutory right of
release on parole and furlough cannot be denied to
the convicts of Bombay Bomb Blast Case, although
that can be denied to the convicts under Bombay
Prohibition Act."
16. If we consider the facts of the case in the light of aforesaid
legal position, the rejection of the prayer of the convict on the
ground that an apprehension of breach of law and order was
Shraddha Talekar, PS 13/16
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voiced by the jurisdictional police, in our considered opinion, is
legally unsustainable. The authorities, in our view, seem to have
fallen in error, which Mr. Gawankar rightly urged to be, similar
and familiar.
17. The second count, on which the prayer was denied, stands
on an even weaker foundation. We have perused the chart of
incarceration details. The convict has undergone 16 years and 6
months actual imprisonment. There is not a single penalty or
prison offence to the credit of the convict. We fnd it rather
diffcult to appreciate as to on what basis the authorities could
record that the convict would jump furlough.
18. Mr. Gawankar was fully justifed in banking upon the fact
that the convict was a free man from the date of his acquittal by
this Court till he was convicted by the Supreme Court on 6 th
August 2009. It seems that the convict surrendered to prison on
his own. This factor assumes critical signifcance. This conduct on
the part of the convict, singularly dismantles the very basis of the
apprehension that the convict may not surrender in the event of
his release on furlough.
19. The conspectus of the aforesaid consideration is that both
the grounds on which the request of the convict was negatived,
Shraddha Talekar, PS 14/16
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are wholly unsustainable. We are, therefore, persuaded to quash
the impugned orders and direct the release of the convict on
furlough.
20. Hence, the following order :
ORDER
(i) The petition stands allowed.
(ii) The impugned order, dated 19th November 2019, passed by the D.I.G. (Prison), Central Region, Aurangabad-respondent No.3, and the order dated 19th August 2020, passed by the Additional D.G. (Police) & I.G. (Prison)-respondent No.4-, Pune, stand quashed and set aside.
(iii) It is directed that the convict-Zuber Mohd. Kasam Shaikh be released on furlough for a period of 14 days to be computed from the date of actual release on furnishing a surety in the sum of Rs.15,000/- to the satisfaction of the respondent No.2-The Superintendent, Nasik Road Central Prison and such other terms and conditions as the respondent No.2 may deem ft to impose in the circumstances of the case.
Shraddha Talekar, PS 15/16
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(iv) The convict shall mark his presence at Mahim
Police Station, twice a week, during his stay at Mumbai.
(v) The convict shall surrender to Nashik Central Prison on the 15th day from the date of his actual release.
Rule made absolute in the aforesaid terms. All concerned to act on an authenticated copy of this judgment.
(N. J. JAMADAR, J.) (S. S. SHINDE, J.) Shraddha Talekar, PS 16/16