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2023 Supreme(Bom) 700
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
MANGESH S. PATIL, ABHAY S. WAGHWASE, JJ.
Niyaz S/o Ahmed Shaikh - Appellant
Versus
State of Maharashtra – Respondent
Criminal Writ Petition No. 1561 of 2022
Decided on : 03-05-2023
Advocate Appeared:
For the Appellant :Mr. Rupesh A. Jaiswal, Advocate
For the Respondent: Mr. G. O. Wattamwar
The statutory bar incorporated by way of amendment, particularly Rule 4(13) of the Maharashtra Prison Manual 1979 Chapter-37 [Furlough and Parole] Rules, should prevail in determining the grant of parole leave.
Headnote:
TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT - Parole Leave - Section 3(3) of TADA Act, 1987, Section 120-B of IPC - Maharashtra Prison Manual 1979 Chapter-37 [Furlough and Parole] Rules, 4[4] - Government Resolution dated 26-08-2016, para 3[b][13] - Amended Rule 4(13) of the Rules of 1959
Fact of the Case:
The petitioner, a life convict under TADA Act and IPC, sought parole leave on the grounds of his 70-year-old mother's ailment. His application was rejected by the respondent authorities, leading to the petitioner approaching the court for relief.
Finding of the Court:
The court found that the rejection of the petitioner's parole leave application was justified based on adverse Police report and the amended provision under Rule 4(13) of the Maharashtra Prison Manual 1979 Chapter-37 [Furlough and Parole] Rules.
Issues: The main issues were the scope, object, and purpose of parole and furlough leave, consideration of the petitioner's mother's ailment, and the applicability of previous orders and statutory bars to the petitioner's case.
Ratio Decidendi: The court held that the statutory bar incorporated by way of amendment, particularly Rule 4(13), should prevail, leading to the dismissal of the petitioner's writ petition.
Final Decision: The writ petition was dismissed, and the rule was discharged.
The judgment primarily deals with the issue of granting parole or furlough leave to a convict, particularly in the context of statutory provisions and amendments to rules governing such leave. The court examined the scope, object, and purpose of parole and furlough, emphasizing the importance of adhering to the statutory framework established by the relevant rules and amendments.
The key facts of the case are as follows: The petitioner, a life convict under the TADA Act and IPC, sought parole leave on the grounds of his 70-year-old mother’s medical condition, supported by medical documentation. Despite initial favorable reports from police authorities, his application was ultimately rejected by the respondent authorities, citing statutory restrictions introduced through amendments to the rules governing parole and furlough.
The court's ratio decidendi (principle of decision) is that the statutory bar incorporated through the amended rules, specifically Rule 4(13), must prevail over other considerations. The court observed that this statutory provision is mandatory and has the force of law, and therefore, the authorities' rejection of the petitioner’s application based on this rule was justified. The court also noted that previous orders and case law had consistently upheld the enforceability of this statutory bar since its amendment, reinforcing that it should be applied uniformly.
In conclusion, the court dismissed the writ petition, affirming that the rejection of the parole application was correct in light of the statutory provisions and the adverse police report. The ruling underscores the importance of complying with the statutory restrictions introduced through amendments when considering parole or furlough applications.
JUDGMENT :
ABHAY S. WAGHWASE, J.
Rule. Rule made returnable forthwith.
2. With the consent of parties, matter is heard finally at the state of admission.
3. By virtue of above captioned criminal writ petition, a life convict for the offence under Section 3(3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short “TADA Act”) and Section 120-B of Indian Penal Code (IPC), is taking exception to the order dated 01-08-2022 and 06-10-2022 passed by the respondent- State authorities, thereby refusing parole leave sought by the petitioner.
4. The petitioner has set up a case that he was convicted on 01-06-2007. He has spent more than 29 years of incarceration and including remission he has undergone 34 years 6 months of imprisonment.
According to him, vide application dated 13-11-2007, he applied for parole leave on the ground of ailment of his 70 years old mother. Alongwith said application, he had annexed copy of medical papers. According to him, processing was done and at initial stage, the Assistant Commissioner of Police of Kurla Division also issued favourable report dated 18-12-2017. However, vide the impugned order dated 01-08-2022 respondent no.1 authority has rejected the said application. Learned Advocate took us through the grounds on which application was rejected.
5. Feeling aggrieved by the rejection of his application on said grounds, petitioner is knocking doors of this Court for following main relief as prayed in the prayer clause :
“A) By appropriate Writ, direction or order in like nature to allow the Petition, and quash and set aside order dated 1.08.2022 and 6.10.2022 passed by Respondent no.1 and Respondent no.3 respectively and thereby directing the Respondent no.2 to release Petitioner on Parole Leave.”
6. We have heard learned Advocate for the petitioner and learned APP for the respondents-State at length.
7. The principal grounds pressed into service for challenging the impugned orders could be summarized as under :
I) Firstly respondent authorities failed to comprehend and appreciate very scope, object and purpose of the parole and furlough leave.
II) Secondly the genuine purpose of medial ailment of his 70 years old mother has been lost sight of and not considered.
III) Thirdly applications of similarly situated co-accused were time and again granted by various orders by the Principal Seat, Nagpur Bench, this Bench and the observations of the Hon Apex Court in the case of Asfaq vs. State of Rajasthan and Others [(2017) 15 SCC 55].
IV) Fourthly authorities failed to consider the previous conduct of the petitioner and the fact that, on the previous occasions he never breached any parole and furlough rules and conditions.
8. Per contra, learned APP invited our attention to the rules framed under The Prisons (Bombay Furlough and Parole) Rules, 1959 as well as reports of Police authorities. He too invited our attention to the orders passed by Principal Bench, Nagpur Bench and this Bench in the case of Bashir Ahmed Usman Gani Khairulla v. State of Maharashtra and others (Criminal Writ Petition No.1119 of 2019 decided on 11-04-2019) as well as in the case of Zeeshan Abdul Mallik Khot v. State of Maharashtra and others (Criminal Writ Petition No.399 of 2021 decided on 17-09-2021, Smt.Rubina Suleman vs. State of Maharashtra (Criminal Writ Petition 4017 of 2016, decided by Principal Seat on 22-12-2016) and Kishor @ Prakash Lalsed Sadmek vs. Deputy Inspector General of Prison (East Region) Nagpur & Anr. (Criminal Writ Petition 1023 of 2017, decided by Nagpur Seat on 01-03-2018). He laid heavy emphasis on the statutory bar incorporated in the amended Rules. For the above reasons, he submits that no fault or infirmity could be found in the impugned orders under challenge and he prays for dismissal of the petition.
9. Admittedly petitioner herein is a convict under the TADA Act. He is lodged at Aurangabad Central Jail and is suffering life imprisonment, in consequence to the judgment and order of conviction dat
