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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Vinay Joshi, Valmiki Sa Menezes, JJ.
Shoyab Mehtab Ali – Appellant
Versus
Divisional Commissioner & Ors. – Respondents
Criminal Writ Petition No. 772 of 2021
Decided On : 21-02-2023
Parole - Eligibility Criteria - Maharashtra Prison (Parole and Furlough) Rules - Rule 19[3], Indian Penal Code (I.P.C.) Sections 302 and 397 - The court discussed the eligibility criteria for parole under Rule 19[3] of the Maharashtra Prison (Parole and Furlough) Rules in the context of the petitioner's conviction under Sections 302 and 397 of the Indian Penal Code. The court interpreted the rules and relevant case law to determine the petitioner's eligibility for regular parole.
Fact of the Case:
The petitioner, convicted for offences under Sections 302 and 397 of the Indian Penal Code, sought regular parole due to his father's serious illness. The Divisional Commissioner rejected the parole application citing adverse police report and the petitioner's alleged ineligibility based on the completion of the stipulated sentence.
Finding of the Court:
The court found that the petitioner had completed the stipulated sentence for the offence under Section 397 of the Indian Penal Code, making him eligible for regular parole. The court also dismissed the adverse police report as insufficient to deny the petitioner's right to parole.
Issues: The main issue was the petitioner's eligibility for regular parole under the Maharashtra Prison (Parole and Furlough) Rules, considering his conviction under Sections 302 and 397 of the Indian Penal Code.
Ratio Decidendi: The court held that the petitioner, having completed the stipulated sentence for the offence under Section 397 of the Indian Penal Code, was entitled to regular parole. The court also emphasized the necessity of granting parole to prisoners to address family problems and maintain links with society.
Final Decision: The court allowed the Criminal Writ Petition, quashed the impugned order, and directed the Authority to release the petitioner on regular parole within two weeks.
JUDGMENT
Vinay Joshi, J. - Considering the controversy involved in the matter, and by consent of the learned Counsel appearing for the respective parties, Criminal Writ Petition is taken up for final disposal at the stage of admission by issuing Rule, making the same returnable forthwith.
2. The petitioner has challenged the order dated 14.07.2020 passed by respondent no.1 Divisional Commissioner, Amravati Division, Amravati rejecting grant of regular parole in terms of Rule 19[3] of the Maharashtra Prison (Parole and Furlough) Rules. The petitioner was convicted for the offence punishable under Sections 302 and 397 of the Indian Penal Code (I.P.C.). He was ordered to undergo imprisonment for life for the offence punishable under Section 302 of the I.P.C. and to undergo rigorous imprisonment for 10 years for the offence punishable under Section 397 of the I.P.C.
3. The petitioner has sought regular parole on account of serious illness of his father. In support of said contention he has produced medical certificate. The petitioner is in jail from 30.06.2013, and thus according to him, including the period of set off and remission, he has undergone sentence for 10 years, therefore eligible for grant of parole leave.
4. Respondent no.1 Authority has rejected parole leave on the ground of adverse police report and the petitioner has not completed 10 years of imprisonment, meaning thereby he could not meet the eligibility criteria for regular parole.
5. The State resisted the petition by filing reply affidavit.
The main resistance is on the ground of in-eligibility of the petitioner on account of non-fulfillment of the eligibility criteria in terms of Rule 2 [4] of the Prisons (Bombay Furlough and Parole) Rules, 1959 (hereinafter referred to as 'the Rules' for short). It has been submitted that a person convicted for the offence punishable under Section 392 to 402 have been exempted from the eligibility criteria, provided that they have not completed the stipulated sentence for respective Sections. In short it has been submitted that since the petitioner has not completed 10 years of actual imprisonment which was imposed on him for the offence punishable under Section 397 of the Indian Penal Code, he is not eligible.
6. On the other hand, the learned Counsel for the petitioner would contend that the petitioner has already completed 10 years of imprisonment including the period of set off and remission. He has attracted our attention to paragraph no.2 of the affidavit-in-reply wherein reference has been made about certificate issued by the jail authorities stating that the petitioner has undergone 10 years 1 month and 26 days imprisonment including set off and remission earned by the petitioner.
7. The learned A.P.P. would submit that the period of set off and remission can not be considered for calculation, as the said aspect is to be considered at the time of actual release. In other words, he would submit that the actual period of incarceration shall be considered for the purpose of Rule 4[2] of the Rules.
8. In resistance the petitioner would submit that he was sentenced for 10 years imprisonment for the offence punishable under Section 397 of the Indian Penal Code. Had it been the fact that he was only convicted under said section, then by the time he would have been released, and therefore, the period is to be calculated by including set off and remission. In support of said contention he has relied on the decision of this Court in case of Gorakh @ Baba Patole .vrs. Government of Maharashtra - 1993 [2] Mh.L.J. 1423.
9. As against this, the learned A.P.P. by placing reliance on the decision of this Court in case of Jalindarsingh Ajitsingh Kalyani .vrs. The State of Maharashtra - 2017 All MR (Cri) 4373, to state that Rule 4[2] of the Rules would be attracted even if the convict has undergone imprisonment under said Sections. Likewise he relied on the decision of this Court in case of Kamal Mayaram Kanojiya .vrs. The State of Maharashtra a
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