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2017 Supreme(Bom) 2485
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. TAHILRAMANI, M.S. KARNIK, JJ.
Kamal Sundardas Bathija - Petitioner
Versus
The Chief Secretary, State of Mah. Mantralaya, Mumbai and Ors. - Respondents
Criminal Writ Petition No. 4613 of 2017
Decided on : 13-11-2017
Advocate Appeared:
For the Petitioner:Mr. Subhash Jha Advocate along with Ms. Sanjana Pardeshi, Mr. Siddhant Jha and Ms. Ankita Pawar i/b Law Global.
For the Respondent:Mr. Deepak Thakare Public Prosecutor along with Mr. Arfan Sait A.P.P., Mr. N.N. Gawankar along with Mr. Manas N. Gawankar i/b Mr. V.H. Narvekar Advocate.
The main legal point established is the eligibility for regular parole under the amended rules, based on the grounds provided for emergency parole and the amendments to Rule 19 allowing regular parole for the marriage of the child of the prisoner.
Headnote:
Parole - Challenge to parole order - Notification dated 26.8.2016 - Rule 4, Rule 19 - The Prisons (Bombay Furlough and Parole) Rules, 1959 - The court examined the Notification dated 26.8.2016 and its clauses, including the eligibility for furlough and regular parole, and the grounds for emergency parole. The court also considered the amendments to Rule 19 allowing regular parole for the marriage of the child of the prisoner.
Fact of the Case:
The petitioner challenged the parole granted to respondent no. 6 for 17 days to attend his daughter's marriage, citing the Notification dated 26.8.2016 and the eligibility for parole under the amended rules.
Finding of the Court:
The court found that the respondent was eligible for regular parole for his daughter's marriage and that the parole conditions were justified based on the police report and the respondent's good conduct in prison.
Issues: Challenge to parole order based on the interpretation of the Notification dated 26.8.2016 and the eligibility for parole under the amended rules.
Ratio Decidendi: The court held that the respondent was eligible for regular parole for his daughter's marriage under the amended rules and that the parole conditions were justified based on the police report and the respondent's good conduct in prison.
Final Decision: The court dismissed the petition and upheld the order granting parole to the respondent no. 6.
V.K. TAHILRAMANI, J.
1. Heard the learned counsel for the petitioner, learned Chief Public Prosecutor for Respondent Nos. 1 to 5 and 7 and Mr. Gawankar, the learned counsel for respondent no. 6.
2. Rule. By consent, Rule is made returnable forthwith and by consent, the matter is heard finally.
3. The petitioner has challenged the order whereby parole was granted to respondent no. 6 for a period of 17 days to attend the marriage of daughter of respondent no. 6. The said order is dated 9.11.2017.
4. Mr. Jha, the learned counsel for the petitioner has placed reliance on the Notification dated 26.8.2016 and contended that parole could not at all have been granted to the respondent no. 6. He placed reliance on clause 3(a) of the Notification whereby Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959 was amended. He pointed out clause 3(a) of the Notification dated 26.8.2016. The said clause reads as under:
“3. In Rule 4 of the Principal Rules-
(a) for the words “The following categories of prisoners shall not be considered for release on furlough” the words, “All Indian prisoners except from 2 following categories whose annual conduct reports are good shall be eligible for furlough” shall be substituted.”
5. Thereafter Mr. Jha placed reliance on Sub-clause (2) of Clause 5 of the said Notification which reads as under:
“5. For the Rule 19 of the Principal Rule, following rules shall be substituted, namely:—
19. When a prisoner may be released on parole-
(1) ……………………………..
(a)………………………………
(b) ……………………………..
(c)……………………………….
(B)(a) …………………………..
(b) ………………………………
(2) Regular parole - All prisoners eligible for furlough shall be eligible for regular parole.
6. In view of the above, Mr. Jha submitted that all those who cannot be released on furlough cannot also be released on parole.
7. Mr. Jha then placed reliance on clause 3(14) of the Notification dated 26.8.2016. Sub-clause (14) states that those who are sentenced for life imprisonment “till death”, cannot be granted furlough. Mr. Jha contended that in the present case, respondent no. 6 has been convicted and sentenced for life imprisonment “till death”, therefore, he could not have been granted furlough, in which case, respondent no. 6 also cannot be granted parole.
8. In order to examine the correctness of the contention of Mr. Jha that respondent no. 6 was sentenced to life imprisonment “till death”, we have perused the judgment and order whereby respondent no. 6 has been convicted and sentenced by the Sessions Court. By judgment and order dated 3.12.2013, the learned Adhoc Additional Sessions Judge, Kalyan convicted and sentenced the respondent no. 6 under Section 120-B read with Section 302 of IPC in Sessions Case No. 218 of 1999. The said judgment has been annexed by the petitioner to the present petition at Exh. A. The operative part of the said judgment whereby respondent no. 6 has been convicted and 4 sentenced by the Sessions Court, reads as under:
“(1) Accused no. 1 Suresh @ Pappu Budharmal Kalani is hereby convicted for having committed an offence punishable under Section 120-B read with Section 302 of IPC and is sentenced to undergo life imprisonment and to pay fine of Rs. 5000/- (Rupees Five Thousand only) i/d to suffer R.I. for six months”.
9. The judgment in the Sessions case does not state that the respondent no. 6 has been sentenced for life imprisonment “till death”. Thereafter Mr. Jha placed reliance on the judgment of this Court whereby the appeal of respondent no. 6 came to be dismissed. The said judgment has been annexed as Exh. B to this petition. Respondent no. 6 had preferred Criminal Appeal No. 1309 of 2013 against the judgment and order of the Sessions Court dated 3.12.2013. The said appeal came to be dismissed. Paragraph 115 of the said judgment reads as under:
“115. As a result of the above discussion, this criminal appeal fails and it is dismissed.”
10. Mr. Jha then placed reliance on paragraph 116 of the said decision, the relevant portion of which reads t
