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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Prasanna B.Varale, Anil S.Kilor, JJ.
Mohammad Mushtaq Moosa Tarami – Appellant
Versus
State of Maharashtra – Respondent
Writ Petition No. 133 of 2022
Decided On : 09-02-2022
Aisha Z.Ansari, Advocate, Farhana Shah, Advocate, M.H.Mhatre, Advocate
The court emphasized that imposing onerous or exorbitant conditions for emergency parole leave would frustrate the object of the Rules.
Headnote:
Emergency Parole Leave - Petitioner Challenging Order of Competent Authority - Prisons (Bombay Furlough and Parole) Rules, 1959 - The court discussed the application of Rule 19(1) of the Prisons (Bombay Furlough and Parole) Rules, 1959, and the conditions imposed on the petitioner for emergency parole leave. The court considered the nature of the offense, the behavior of the petitioner in prison, and the expenses of the police escort team. The judgment modified the conditions of the original order and allowed the petitioner to attend the last rituals scheduled on 13/2/2022, subject to certain reporting and surrender conditions.
Fact of the Case:
The petitioner, a convict serving life imprisonment, sought emergency parole leave to attend the 40th day ritual after the death of his mother. The competent authority permitted his release subject to bearing expenses of a police escort team. The petitioner challenged the order due to the exorbitant expenses and inability to attend the ritual.
Finding of the Court:
The court found merit in the petitioner's submissions, considering his long period of imprisonment and the conditions imposed. It modified the original order, allowing the petitioner to attend the last rituals scheduled on 13/2/2022, with specific reporting and surrender conditions.
Issues: The issues revolved around the imposition of conditions for emergency parole leave, specifically the expenses of a police escort team, and the petitioner's inability to bear the costs, which would result in him being unable to attend the ritual.
Ratio Decidendi: The court considered the petitioner's circumstances, the nature of the offense, and the behavior of the petitioner in prison. It concluded that imposing an onerous or exorbitant condition would frustrate the object of the Rules, leading to the modification of the original order.
Final Decision: The petition was partly allowed, and the original order was modified to allow the petitioner to attend the last rituals scheduled on 13/2/2022, subject to specific reporting and surrender conditions.
JUDGMENT
1. Heard Ms. Ansari, learned counsel for the petitioner at length.
2. The petitioner is before this Court challenging the order of the competent authority i.e. Superintendent, Yerwada Central Prison, Pune, dtd. 12/1/2022, whereby the petitioner was permitted to attend the 40th day ritual scheduled on 30/1/2022, on account of death of his mother, by releasing him on emergency parole leave subject to condition of bearing expenses of police escort team.
2. To deal with the grievance raised in the petition, it would be necessary for us to refer to certain facts.
The petitioner - Mohammad Mushtaq Moosa Tarani is undergoing life imprisonment awarded to him vide judgment and order passed by the Special Judge of Special TADA Court, Mumbai. The petitioner is presently lodged in Yerwada Central Prison as convict No.15143. The petitioner on account of death of his mother - Hawabai Moosa Tarani on 22/12/2021 submitted an application for grant of emergency parole leave to attend the 40th day ritual falling on 30/1/2022. On receipt of the application, by complying with necessary formalities such as seeking report, the competent authority viz. Superintendent, Yerwada Central Prison, vide order dtd. 12/1/2022, by exercising the powers under Rule 19(1) of the Prisons (Bombay Furlough and Parole) Rules, 1959, permitted the applicant to attend 40th day ritual falling on 30/1/2022 for that particular day subject to bearing the expenses of escort. The said order is placed on record at Exhibit-C. It is recorded in the said order that the petitioner is an accused in a serious crime viz. Mumbai Bomb Blast. Perusal of the order shows that though an objection was raised for release of the petitioner by concerned Police Station on the ground that one of the sureties i.e. brother of the petitioner - Abubaker Moosa Tarani is not a permanent resident of Mumbai City and the said surety is residing at the current place on the basis of leave and license agreement. The concerned Police Station recorded this objection with an apprehension that as the surety is not permanent resident of Mumbai City and if the petitioner is released, he may misuse the liberty granted to him. Now, though this was the objection raised by the concerned police station, the competent authority i.e. Superintendent, Yerwada Central Prison, Pune, by referring to the past conduct of the petitioner that the petitioner on earlier occasion was granted emergency parole leave for attending the marriage of his daughter as well attending the rituals on account of death of his brother and had surrendered back to the prison on the scheduled date as well as considering the aspect that the petitioner has made a request to attend the last rituals on account of death of his mother, the application was allowed.
3. Learned counsel for the petitioner submitted that though the petitioner was allowed to be released, due to the rider in the nature of condition, the petitioner was unable to attend the 40th day ritual. The petitioner then prayed for his release as the 40th day ritual is rescheduled on 13/2/2022.
4. It seems that the matter was listed before this Court on 24/1/2022 and as the copy of the petition was served upon the Office of the Public Prosecutor, learned APP sought time to seek instructions and a report dtd. 5/2/2020 is submitted to the Office of Public Prosecutor by the Superintendent, Yerwada Central Prison, Pune. Learned APP has tendered the copy of the said report.
The same is taken on record and marked "X" for identification. It is submitted in the report that the competent authority was pleased to consider all the necessary aspects in the matter viz. negative police report, nature of offence committed by the petitioner, behaviour of the petitioner in the prison and his earlier record. It is also stated in the report that certain instances took place in other States. It is stated that in the State of Uttar Pradesh, one of the convict was released on parole so as to attend the ma
