Indian Kanoon - Search engine for Indian Law

Heard. Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel for the parties.

2 wp649.2022

2. The petitioner has been convicted for various offences including the one under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short "TADA"). The petitioner is now seeking his release on regular parole for the purpose of seeing his ailing wife. An application was also filed by the petitioner seeking his release on regular parole but it was rejected by respondent No.2 on the ground that the petitioner is not eligible for grant of regular parole in terms of rule 4(13) read with rule 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959 (for short "Rules of 1959").

3. Learned counsel for the petitioner submits that the Apex Court in the case of Asfaq V/s. State of Rajasthan and others reported in (2017) 15 SCC 55 has considered this aspect and held that even if a convict is found to be guilty under the provisions of TADA, the conviction by itself would not disqualify him from seeking his release on regular parole.

3 wp649.2022

4. We have gone through the judgment of the Supreme Court in the case of Asfaq (supra) and we find that the facts of that case are quite different from the facts of this case at least in one sense. Of course, in that case Asfaq was a prisoner who was convicted under the provisions of TADA, the same conviction as has been awarded to the petitioner herein, but, Asfaq was a prisoner who was not governed by the guidelines and the provisions stated in the Rules of 1959 governing prisoners in the State of Maharashtra. In this judgment, the Apex Court has acknowledged the fact that many State Governments have formulated the guidelines on parole in order to bring out objectivity in the decision making and to decide as to whether parole needs to be granted in a particular case or not. It has also noted that such a decision in those cases is taken in accordance with the guidelines framed. It then follows a decision which is to be taken in the present case would be guided by the provisions made in the Rules of 1959 applicable to the convicts in the State of Maharashtra. Such was not the case before the Supreme Court 4 wp649.2022 in the case of Asfaq (supra). In Asfaq (Supra) it was also found that the Advisory Board had rejected the regular parole application of Asfaq on the ground that he was a convict under TADA, a serious and heinous crime, but the Supreme Court found that on such a sole consideration, Asfaq could not have been denied benefit of regular parole. In the present case, however, there is a specific provision under the Rules of 1959 which is rule 4(13), which disqualifies a convict under TADA from getting benefit of regular parole. This provision was not under consideration of the Supreme Court and, therefore, in our respectful submission, the petitioner can get no assistance from the case of Asfaq (supra).

"rule 4(13) Who is sentenced for offences such as terrorist crimes, mutiny against state, kidnapping for ransom (Prisoners may be eligible for furlough after completion of stipulated sentence in the respective section)."

7. So, it is clear that there is a bar placed upon the prisoners who are convicted for, inter alia, terrorist crime, TADA is about terrorist crime, for being released on regular parole. The petitioner is convicted under TADA and, therefore, he would not be eligible for grant of regular parole under rule 19(3) of the Rules of 1959.