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IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B.R. GAVAI & A.S. CHANDURKAR, JJ.
Gajanan Babulal Bathulwar
Vs.
The State of Maharashtra & Ors.
Criminal Writ Petition No.272 of 2012 with Criminal Writ Petition Nos.355, 366 of 2012 with Criminal Writ Petition No.371 of 2013.
Decided on : 7th March, 2014.
The petitioners have no grievance in so far as framing of the Rules of 1959 are concerned. Therefore, the Rules of 1959 as framed indicate that the “procedure established by law“ has been followed while seeking to deprive the petitioners of their personal liberty while they are serving the sentence imposed upon them.
The proviso to Rule 19 has merely restricted the release on parole for a period of one year after the expiry of last parole except in case of death of the nearest relative mentioned in Rule 19. It, therefore, cannot be said that the entitlement of a prisoner to be released on parole is totally taken away. The same, has merely been restricted and made permissible only if within a period of one year after the expiry of last parole, death of a close relative takes place.
Such restriction on release on parole within one year of expiry of the last parole can neither be said to be unreasonable or unjustified. The State was required to introduce such restriction on account of its earlier experiences. Moreover, the right to be released on parole is on the basis of administrative instructions framed in exercise of the power conferred by Section 59 of the Prisons Act. By framing proviso to Rule 19 in the Rules of 1959, there is no dent caused to the personal liberty of a prisoner whose entitlement to be released on parole has been kept intact. It, therefore, cannot be said that by introducing proviso to Rule 19 of the Rules of 1959, the same results in breach of provisions of Article 21 of the Constitution of India. The challenge, therefore, as raised is without any substance and must fail.
Prisons (Bombay Furlough and Parole) Rules, 1959 - Rule 19 Proviso - Prisons Act, 1894, Section 59 - Constitution of India, Article 21 - Grant of parole leave. - Proviso to Rule 19, imposing restriction as to expiry of one year between two paroles, not violates personal liberty of prisoners under Article 21 of Constitution. - As the initial introduction in 1989, subsequent deletion in 2007 and present reintroduction of proviso to Rule 19 by virtue of 2012 Amendment, has been effected and the same is being justified on the basis of past experience of the State, the principles contained in the Rule laid down in Heydon’s case - (1584) 3 Co. Rep.7a, P. 7b:7 6ER 637 or the "mischief rule" will have to be considered. Though it is true that normally aid of said Rule is taken when the material words are capable of two or more constructions, it is equally well settled that the principles contained in said Rule can be kept in mind while considering the effect of the provision under challenge.
What has been stated above, what is to be taken into account is the law that was prevailing prior to the amendment, what was the mischief and defect for which said provision did not provide and the manner in which said mischief and defect has been sought to be now resolved. From the material on record, it is clear that the State Government noticed that the provision for grant of parole leave was being misused on the pretext of illness of nearest relatives. Considering its past experience of such repeated and frequent requests for parole leave, the State Government decided to impose a reasonable and just restriction on release of a prisoner on parole by introducing proviso to Rule 19.
The mischief of repeated and frequent requests for release was, therefore, sought to be remedied by introducing proviso to Rule 19 of the Rules of 1959. If the State Government on the basis of material before it found it proper to impose some reasonable restrictions in the matter of release of a prisoner on parole, then in exercise of its rule making power, the State Government was within its rights in seeking to impose such restrictions by introducing proviso to Rule 19 of Rules of 1959.
A.S. CHANDURKAR, J. :- These writ petitions filed by convicts seek to challenge validity of the proviso to Rule 19 of the Bombay (Furlough and Parole) Rules 1959 as amended by the Prisons (Bombay Furlough and Parole) (Amendment) Rukes 2012. The Bombay (Furlough and Parole) Rules 1959 would hereinafter be referred to as the Ru1es of 1959.
BACKGROUND FACTS :
2. Criminal Writ Petition No.272 of 2012 has been filed on behalf of 78 convicts. It has been stated that in view of the amendment of 2012 to Rule 19 of the Rules of 1959, the petitioners are deprived from seeking release on parole within a period of one year from their earlier release. Criminal Writ Petition No.355 of 2012 has been preferred by a convict whose application for parole has been rejected on the ground that he has sought release on parole within a period of one year from his earlier release. The petitioner in the said criminal writ petition had sought parole on account of his daughter's illness. In Criminal Writ Petition No.366 of 2012, the petitioner is seeking release on parole on account of his father's serious illness. However, as the period of one year is yet to lapse from his earlier release, the petitioner has challenged the proviso to Rule 19 of the Rules of 1959 as the same prevents his release. Criminal Writ Petition No.371 of 2013 has been filed by two convicts who are challenging the aforesaid proviso to Rule 19 on the ground that there is an embargo on the right of a prisoner to seek release on parole in view of amended provisions referred to above.
All these criminal writ petitions were directed to be heard together. Accordingly learned Counsel Ms. S. H. Bhatia, Mrs. Sonali Saware Ms. Radha Mishra and Mr. Nitesh Samundre for the petitioners have argued in support of the petitions and Mrs. Bharti H. Dangre, Learned Government Pleader has opposed the petitions on behalf of the State.
3. In Criminal Writ Petition No.272 of 2012 that has been filed by 78 convicts, it has been stated that parole is granted in emergency situations that arise on account of serious illness or death of a family member. It has been urged therein that by restricting release 0n parole for only one occasion in a year, the convicts are unable to make themselves available in case there is a serious illness of a family member or for other situations as contemplated by Rule 19. It has, therefore, been stated that the restrictions placed by the proviso to Rule 19 of Rules 1959 deprive the petitioners of availing the right of parole in such situations thereby violating provisions of Article 21 of the Constitution of India.
In so far as Criminal Writ Petition No.355 of 2012 and 366 of 2012 are concerned, the same have been filed by individual convicts raising a grievance that on account of the proviso to Rule 19 of the Rules 1959, they are unable to seek their release on parole despite the illness of a close relative. In Criminal Writ Petition No.371 of 2013, the action of the State Authorities in not accepting an application for release on parole on the ground that the period of one year after expiry of earlier release had not come to an end. It has been stated that right of a prisoner to be so released on parole cannot be restricted in such a manner. In this regard, reliance is placed upon the Division Bench judgment of this Court in the case of Namdeo Tarfe Vs. State of Maharashtra and others reported in 2008(4) Mh.L.J. 341.
4. On behalf of the respondents, the Superintendent of Prisons, Central Prison, Nagpur has filed an affidavit dated 19-6-2013 in Criminal Writ Petition No.303/2012. The stand taken in said affidavit has been adopted as the stand in all other connected writ petitions. The respondents have submitted that Rule 19 as amended is within the rule making power of the State Government and is not contrary to the provisions of the Prisons Act, which by Section 59 empowers the State Government to frame such Rules. It has further been stated that considering the previo
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