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IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
P.N. Deshmukh, Manish Pitale, Pushpa V. Ganediwala, JJ.
Kantilal Nandlal Jaiswal - Appellant
Vs.
Divisional Commissioner, Nagpur Division - Respondent
Criminal Writ Petition No. 1046 of 2018
Decided On : 13-09-2019
Constitution of India - Articles 14 and 21 - Rules, 1959 - Prisons Act - Section 59 – Employment and service – Jurisdiction – Claim of compensation - All convicted prisoners except foreigner and death sentenced prisoners may be eligible for emergency parole for 14 days for death of parental grandfather or grandmother /father / mother /spouse /son/daughter/brother/sister and marriage of son/daughter/ brother /sister, provided that no extension can be granted to emergency parole - Emergency Parole may be granted by the Superintendent of Prison for the reason of death of parental grandfather or grandmother/ father /mother/ spouse/ son/ daughter/ brother/ sister and by concerned Dy. I.G. for the reason of marriage of son / daughter/ brother/ sister and the Authority approving emergency Parole shall decide whether to grant parole under police escort or with a condition to report daily to the local police station depending upon the crime committed by the prisoner and his conduct during his stay - Held, Thus , viewed from any angle, the arbitrariness of the said proviso is evident and in that context reference made by the learned senior counsel for the petitioner to judgment of the Honble Supreme Court in the case of State of Madhya Pradesh .vs. Nandlal Jaiswal, (1986) 4 SCC 566 becomes relevant. In the said judgment, while acknowledging the fact no one could claim as against the State, a right to carry out a trade or business in liquor and the State could not be compelled to part with its exclusive right to do so, it was held that when the State decides to grant such right or privilege to others, the State cannot escape the rigour of Article 14 of the Constitution of India. Thus, even if facility of parole could be a policy of the State whereby it had conceded a limited right to the convict or prisoner within the four corners of the Rules of 1959, once such a limited right was conceded, the State was bound to operate such a procedure under the said Rules, in a non-arbitrary manner. The moment it is found that the insertion of proviso to Rule 19(2) of the Rules of 1959 is arbitrary and it violates Article 14 of the Constitution of India, it deserves to be struck down as being invalid and unconstitutional. The right of a convict or prisoner under Article 21 of the Constitution of India to be treated with dignity would also require the State to treat such prisoners and convicts in a non-arbitrary manner and not at its whims and fancies. Therefore, on the touchstone of both Article 14 and Article 21 of the Constitution of India, the aforesaid proviso to Rule 19(2) of the Rules of 1959 is found to be ultra vires, unconstitutional and liable to be struck down - This aspect was never brought to the notice of the Division Bench of this Court in the case of Gajanan Babulal Bathulwar .vs. State of Maharashtra and others (supra). At this juncture, it is relevant to observe that the repeated introduction and deletion of the said proviso to Rule 19(2) of the Rules of 1959, on the part of the State shows that even the State is not clear about its own policy. Such repeated somersaults in the State policy show the arbitrary manner in which the State has been treating prisoners and convicts in the State of Maharashtra – petition allowed
Key Points: - Parole is not a mere administrative decision; it is a limited legal right subject to Rules of 1959 and Rule 1(A) objectives [4000605130023] - Proviso to Rule 19(2) ( introduced 16.04.2018) violates Articles 14 and 21 and is ultra vires and struck down [4000605130041] - The larger Bench was requested to decide whether parole is a right or concession and whether proviso to Rule 19(2) violates Articles 14 and 21 (questions framed) [4000605130001][4000605130002] - The Court references prior judgments discussing non-arbitrariness, dignity, and the objective of parole under Rule 1(A) [4000605130018][4000605130019] - The petition was allowed; proviso struck down; matter referred to appropriate Bench for disposal [4000605130042]
JUDGMENT :
Manish Pitale, J.
By order dated 14.03.2019, a Division Bench of this Court framed two questions pertaining to the nature of right of grant of parole to a convicted accused and as to whether proviso introduced to Rule 19(2) of the Prisons (Bombay Furlough and Parole) Rules, 1959, violates Articles 14 and 21 of the Constitution of India. The reference was occasioned because the said Division Bench of this Court found that validity of such a proviso upheld by an earlier judgment of a Division Bench of this Court was required to be reconsidered, in the light of specific contentions raised on behalf of the petitioner in the context of Articles 14 and 21 of the Constitution of India and also because certain new and distinguishing circumstances had arisen after the said earlier judgment of the Division Bench of this Court in the case of Gajanan Babulal Bathulwar .vs. State of Maharashtra and others, (2014) 2 BCR(Cri) 544.
2. The specific questions referred to the larger Bench read as follows:-
(ii) Whether proviso to Rule 19(2) introduced in terms of notification dated 16th April, 2019 is violative of Article 14 and Article 21 of the Constitution of India and if yes, what treatment must it be given ?
3. The aforesaid rules pertaining to furlough and parole were framed under Section 59(5) of the Prisons Act, 1894 as applicable to the State of Maharashtra. The aforesaid section 59(5) of the Prisons Act, 1894 reads as follows:-
(5) for the award of marks, the suspension, or remission and consent shortening of sentences, and the grant of release on parole or furlough and determining the conditions on which and the authority by which the sentences may be suspended or remitted and the prisoners may be released on parole or furlough.- Bombay Act 23 of 1959, S.3 (w.e.f. 1-6-1959)."
4. The said Rules pertaining to furlough and parole framed in the year 1959 (hereinafter referred to as "the Act and Rules of 1959") and a perusal of the manner in which the said Rules were amended from time to time shows that the proviso, validity of which has been called into question, was first inserted in the said Rules on 28.11.1989. Thereafter, it stood deleted on 07.02.2007. It was again added on 23.02.2012. It is at this stage that validity of the said proviso was challenged before this Court, but its validity was upheld in the aforesaid judgment by a Division Bench of this Court in the case of Gajanan Babulal Bathulwar .vs. State of Maharashtra and others (supra). Thereafter, on 26.08.2016, the said proviso again stood deleted. Lastly, on 16.04.2018, the said proviso was again added to Rule 19(2) of the Rules of 1959. It is still in operation and the same has been challenged in the present writ petition. It is relevant that the last amendment dated 16.04.2018, whereby the proviso stood reinserted in the aforesaid Rules, Rule 1(A) was also inserted in the Rules of 1959, enumerating the objectives for furlough and parole rules. There were other amendments also carried out in the Rules of 1959 by the said amendment on 16.04.2018, reference to which shall be made at appropriate place in this judgment.
5. In order to appreciate the nature of challenge raised in the present writ petition, it would be appropriate to quote at this stage Rules 1(A) and 19 of the Rules of 1959. The said Rules read as follows:-
Furlough and Parole leaves to inmates are progressive measures of correctional services. The objectives of releasing a prisoner on leave are:-
(a) To enable the inmate to maintain continuity with his family life and deal with family matters,
(b) To save him from evil effects of continuous prison life,
(c) To enable him to maintain and develop his self-confidence,
(d) To enable him to develop
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