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2021 Supreme(Bom) 1116
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR
V.M. Deshpande, Amit B Borkar, JJ.
Asgar Kadar Sheikh - Appellant
Versus
Jail Superintendent - Respondent
Criminal Writ Petition No. 253 of 2021
Decided On : 19-06-2021
M.N. Ali, Advocate, N.R. Tripathi, Advocate
Advocates have a duty to present all relevant precedents and orders to the court and must not mislead the court by suppressing material facts.
Headnote:
MISLEADING STATEMENT - Emergency Parole for Convicts - Indian Penal Code, Railways Act, Protection of Public Properties Act - Sections 302, 304, 307, 324, 326, 435, 120B, 34, 151, 4 - The court discussed the provisions of Rule 19(1)(C)(ii) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959, and the judgments in Milind Ashok Patil & ors. vs. State of Maharashtra & Ors. and Pintu Uttam Sonale vs. State of Maharashtra, highlighting that convicts who had surrendered late on earlier occasions are not entitled to emergency parole. The court emphasized the duty of advocates to present all relevant precedents and orders, and not to mislead the court.
Fact of the Case:
The petitioners, convicts for various offenses, sought release on emergency parole, which was rejected due to their previous late surrenders. The advocate for the petitioners made a misleading statement, leading to the court's scrutiny of the case.
Finding of the Court:
The court found that the petitioners were not eligible for emergency parole due to their previous late surrenders and the provisions of the relevant rules and judgments. The advocate for the petitioners had attempted to mislead the court by suppressing material facts.
Issues: The issues involved the eligibility of the petitioners for emergency parole and the advocate's duty to present all relevant precedents and orders.
Ratio Decidendi: The court emphasized that convicts who had surrendered late on earlier occasions are not entitled to emergency parole and highlighted the duty of advocates to present all relevant precedents and orders.
Final Decision: The petition was dismissed, and the court discharged the rule.
JUDGMENT
Amit B. Borkar, J. - Heard.
2. RULE. Rule made returnable forthwith.
3. This case illustrates an attempt on the part of the advocate for the petitioners by making misleading statement which on the first blush appears to be innocuous but on deeper scrutiny reveals an attempt to twist facts to get favourable relief for his clients.
4. The petitioners are convicts for offences punishable under Sections 302, 304, 307, 324, 326, 435, 120B and 34 of the Indian Penal Code, Section 151 of the Railways Act and Section 4 of the Protection of Public Properties Act. The said case is popularly known as 1996 Bombay Blast case. After having undergone the actual imprisonment of 23 years by the petitioner no. 1 and 18 years by the petitioner no. 2, the petitioners filed an application before the respondent for their release on emergency parole as per the amended provisions of Rule 19(1)(C)(ii) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959. The application has been rejected by the impugned order dated 30/06/2020 mainly on the ground that the petitioners having been convicted under the Special Acts are not entitled to the benefit of emergency parole.
5. The petitioners have therefore filed the present petition challenging the order of rejection of emergency parole. The petitioners in para no. 17 of the petition have made categorical statement which reads as under :-
"17. It is submitted that, petitioners are eligible to be released on emergency parole for a period of 45 days as they have surrendered on due date on last two occasions and there is no other embargo on their release. Therefore, petitioners deserve to be released on emergency parole for a period of 45 days."
6. It needs to be noted that the petitioners in para no. 3 of the petition have made a statement that the petitioner no. 1 has been released on parole and on each occasion, the petitioner no. 1 had surrendered on due date without there being a single day's delay and in para no. 6 of the petition have made a statement that the petitioner no. 2 had surrendered late by 11 days.
7. This Court on 18/03/2021 issued notice to the respondent. The respondent has filed affidavit-in-reply stating that insofar as the petitioner no. 1 is concerned, while he was released on parole leave of 10 days on 20/05/2011 he surrendered late by 1 day. It is stated that the petitioner no. 2 while he was released on parole leave of 30 days on 01/05/2010 surrendered himself late by 11 days. It is further stated that as per the provisions in Maharashtra Government Circular dated 08/05/2020, both the petitioners are not entitled to emergency leave for Covid-19 pandemic.
8. Shri M.N. Ali, Advocate for the petitioners placed reliance on unreported judgment of this Court in Criminal W. P. No. 488/2020 (Mohd. Faruque Mohd. Yusuf vs. State of Maharashtra & ors.) by which this court remanded back the case of the co-accused to the jail authorities for fresh consideration. It is submitted that the petitioner in the said case being the co-convict along with present petitioners, same order needs to be passed in the present petition.
9. Relying on the statement made by learned advocate for the petitioners and to save the judicial time in dictating the judgment in open Court, it was pronounced that the petition stands partly allowed and similar order as passed in Criminal W.P. No. 488/2020 would be passed.
10. While dictating the judgment and on careful scrutiny of the annexures alongwith the averments in the petition, it is revealed that both the petitioners had surrendered late on earlier occasions. The petitioner no. 1 surrendered late by 1 day and the petitioner no. 2 surrendered late by 11 days. The Division Bench of this Court in the un-reported judgment in the case of Milind Ashok Patil & ors. vs. State of Maharashtra & Ors. in Criminal Writ Petition-ASDB-LD-VC No. 65/2020, has clearly laid down that those convicts who had surrendered late on earlier occasions are not entitled to emergency par
