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2019 Supreme(Bom) 650
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA, A.S. GADKARI, JJ.
MOHAMMED MAJID MOHAMMED SHAFI - Appellant
Vs.
STATE OF MAHARASHTRA - Respondent
Criminal Writ Petition No. 453 of 2019
Decided On : 01-03-2019
Farhana Shah, Adv., Deepak Thakare, Adv., P.P. Shinde, Adv.
Headnote:
Indian Penal Code, 1860 – Section 120-B – Code of Criminal Procedure, 1973 – Section 432 – Maharashtra Control of Organized Crime Act, 1999 – Unlawful Activities (Prevention) Act, 1967 – Section 16 – Prisons Act, 1984 – Sections 2, 59, 28 – Prisons (Bombay Furlough and Parole) Rules, 1959 – Rule 18 – Grant of Parole – In exercise of the powers under Clauses 5 and 28 of Section 59 of the Prisons Act, 1984 Prisons (Bombay Furlough and Parole) Rules, 1959 have been framed – Bench has dealt with large number of Writ Petitions challenging the Orders of the Competent Authorities as well as the Appellate Authorities refusing to grant either furlough or parole. – Court have noticed that in most of the cases, the Appeals are disposed of by the Appellate Authority and especially when the Appellate Authority is the State, in a most cryptic manner. – Court had called upon the learned APP to produce the file in the present case and court had also requested the learned Public Prosecutor to remain present and assist the Court. – Held, Perusal of clause (A) of Sub-Rule (1) of Rule 19 shows that there is a provision for grant of emergency parole in case of death of parental grandfather or grandmother/ father/ mother/ spouse/ son/ daughter etc. – The provision is for grant of emergency parole upto the period of 14 days. – The object of making this provision is to ensure that when a close relative of prisoner dies, the prisoner must get benefit of company of his other immediate family members and whenever religious practice requires, he can perform obsequies. – Therefore, in a case where the Application for emergency parole is rejected or whether emergency parole is granted for a period of less than 14 days or where the emergency parole is granted under police escort, the Appellate Authority namely the Honble Minister of State, is expected to decide the Appeal immediately and preferably within a period of three working days from the date on which the Appeal is received. – In such a case, the Appellate Authority can call for the scanned copies of the record from the Competent Authority. – As stated earlier, the Honble Minister of State of Home Department must apply his mind to the grounds in the Appeal as well as to the record of the case and must record brief reasons in the Order while deciding the Appeal. – Court, therefore, propose to direct the State Government to take appropriate policy decision in the light of what court have held above and issue a necessary Order or a Government Resolution. – It will be also appropriate for the State Government to consider whether the Appeals under the provisions of the said Rules of 1959 should be numbered and entered in a Register so that it become easier to store the data regarding the Appeals and Orders passed thereon. – Order Accordingly
A.S. Oka, J.
On the earlier date, the parties were put to the notice that the Petition will be taken up for the final disposal.
2. In exercise of the powers under Clauses 5 and 28 of Section 59 of the Prisons Act, 1984 (for short, "the Prisons Act"), the Prisons (Bombay Furlough and Parole) Rules, 1959 (for short, "The said Rules of 1959") have been framed.
3. This Bench has dealt with large number of Writ Petitions challenging the Orders of the Competent Authorities as well as the Appellate Authorities refusing to grant either furlough or parole. We have noticed that in most of the cases, the Appeals are disposed of by the Appellate Authority and especially when the Appellate Authority is the State, in a most cryptic manner. We had called upon the learned APP to produce the file in the present case and we had also requested the learned Public Prosecutor to remain present and assist the Court.
4. As far as the Order regarding grant of furlough is concerned, the sanctioning authority as per Sub-Rule (1) of Rule 2 is Deputy Inspector General of Prisons (Regional). An Appeal is provided against refusal to release a prisoner on furlough under Sub-Rule (2) of Rule 2 of the said Rules of 1959 which lies to the Additional Director General of prisons and Inspector General of Prisons and Correctional Services. Sub-Rule (4) provides that the decision of the Appellate Authority shall be final. Rule 19 of the said Rules of 1959 as amended provides for grant of two categories of parole. The first is emergency parole and the second is regular parole. The Competent Authority for the grant of parole is the Divisional Commissioner or Additional Divisional Commissioner.
5. Sub-Rule (1) of Rule 18 provides that against an Order of the Divisional Commissioner or Additional Divisional Commissioner refusing to grant parole or refusing to extend the period of parole, an Appeal shall lie to the State Government whose decision shall be final. On plain reading of Sub-Rule (ii) of Rule 1 of Rule 18, an Appeal is maintainable against an Order refusing to grant both the categories of parole mentioned in Rule 19 as the Appellate provision does not make a distinction between emergency parole and regular parole.
6. In the present case, we have perused the Order of the Appellate Authority. Just like many other Orders passed by the State Government in exercise of Appellate powers under Rule 18, it is a cryptic Order. Clause 1 of paragraph 2 of the cryptic Order mentions that the Petitioner has been convicted under the provisions of Maharashtra Control of Organized Crime Act, 1999 (for short, "the MCOC Act"), Section 120-B of the Indian Penal Code read with Section 16 of the Unlawful Activities (Prevention) Act, 1967 in relation to an incident at Aurangabad. Later on, by an Order dated 12th February, 2019, a corrigendum was issued for replacing the particulars of the offence mentioned in Clause (1) of paragraph 2 of the Order dated 12th February, 2019 as the Petitioner has been convicted in the case relating to 2006 serial Railway Bomb Blasts in Mumbai.
7. We have perused the file. The learned Public Prosecutor stated that as per the rules of business, the Appellate Authority is the Hon'ble Minister of the State of the Home Department. It appears from the file that after the Appeal was preferred on 31st December 2018 by the Advocate for the Petitioner, a requisition was sent by the State Government calling for the record of the case and several other documents. Thereafter, a note was prepared by an Under Secretary of the Home Department. The note refers to certain documents on record. Though there are more than one police reports on record, the note refers to only one of the police reports. In the note, the Under Secretary has recommended that the Appeal preferred by the Petitioner should be dismissed. The note erroneously mentions that the offence was committed by the Petitioner at Aurangabad. The note is signed, as stated earlier, by the Under Secretary as
