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BOMBAY HIGH COURT
V.K. Tahilramani, A.C.J. and M.S. Karnik, J.
Mohammad Rafiq Usman Shaikh —Petitioner
versus
State of Maharashtra and Ors. —Respondents
Criminal Writ Petition No.4145 of 2017
Decided on 12.12.2017
Counsel for the Parties:
For the Petitioner:Mrs. Farhana Shah, Advocate
For the State: Mr. Arfan Sait, APP
IMPORTANT POINT
While granting parole, it has to be considered whether the prisoner is a hardened criminal and a threat to society.
Headnote:PAROLE—The Prisons (Bombay Furlough and Parole) Rules, 1959—Application for parole of petitioner on ground of illness of his wife was rejected on ground that petitioner was a terrorist and was convicted in bomb-blast case and authorities apprehended that there will be a law and order problem if petitioner was released on parole—Writ—Whether there could be any presumption that a person who was convicted of serious and heinous crime was to be ipso facto treated as a hardened criminal—Petitioner was involved in more than one offence and in jail conduct of petitioner was not satisfactory—In bomb-blast case in which petitioner was convicted, 188 people had died and 828 people were injured—Sister of wife of petitioner was working in same hospital where wife of petitioner was reported suffering from prolape of uterus and was to undergo surgery—Sister of wife of petitioner was available to attend the patient—No ground to interfere. (Paras 5 to 9)
Result: Petition dismissed.
JUDGMENT (ORAL)
V.K. Tahilramani, A.C.J.—Heard both sides.
2. The petitioner had preferred application for parole on the ground of illness of his wife. The said application was rejected by order dated 17th November, 2016. Being aggrieved thereby, the petitioner preferred an appeal, the same was dismissed by order dated 16th February, 2017, hence this petition.
3. The application of the petitioner for parole came to be rejected mainly on the ground that the petitioner is a terrorist as he is a convict in a bomb-blast case, hence, in view of notification dated 26/08/2016, he cannot be released on parole. The learned APP submitted that, as per the police report, if the petitioner is released on parole, there may be a law and order problem.
4. Learned Counsel for the petitioner submitted that the fact that the petitioner is a bomb-blast convict, cannot be a ground to reject his application for parole. She submitted that the notification dated 26/08/2016 cannot be made applicable to the case of the petitioner, because the application of the petitioner for parole was prior to 26/08/2016. She submitted that the said notification cannot be made retrospectively applicable to the application of the petitioner for parole, as his application was prior to the notification. No doubt there is much merit in this submission and we find it to be a correct view, however, the fact remains that the petitioner is involved in terrorist activities and the authorities apprehend that there will be a law and order problem if the petitioner is released on parole.
5. The learned counsel for the petitioner thereafter placed reliance on the decision of the Supreme Court in the case of Asfaq Vs. State of Rajasthan and others rendered in Civil Appeal No. 10464 of 2017 arising out of SLP (C) No.16803 of 2017, to contend that parole can be granted in certain situations and the present case is one of them. The Prisons (Bombay Furlough and Parole) Rules, 1959 provide for release of a prisoner on parole. Parole is granted in case of death or serious illness of nearest relative or in case of natural calamity. We have perused the medical certificate which is relied upon by the petitioner to seek parole. The said certificate is issued by Dr. Neena S. Nichlani. It shows that the wife of the petitioner is suffering from prolapse of uterus and she is to be posted for surgery. The statement of Dr. Neena S. Nichlani has been recorded on 22/10/2017. In the statement, Dr. Nichlani has said that the operation is not such as is dangerous to life, which means that the operation is not serious in nature.
6. Thereafter the learned counsel for the petitioner again placed reliance on the decision in the case of Asfaq (supra), to state that if the conduct of the prisoner is good, he should be released on parole. The learned counsel for the petitioner has placed reliance on the observations made in paragraphs 10 to 19 of the said decision. We have carefully perused the said decision. In paragraphs 17 and 18 of the said decision, it is stated that not all people in prison are appropriate for grant of furlough or parole. It is stated that authorities are supposed to address the questions as to whether the convict is such a person who has tendency to commit a crime. It is further observed therein that obviously, society must isolate those who show patterns of preying upon victims. It is further observed therein that the authorities cannot be oblivious of the obligation to the society to render it immune from those who are prone to criminal tendencies and have proved their susceptibility to indulge in criminal activities by being found guilty (by a Court) of having perpetrated a criminal act. Care has to be taken to ensure that kindness to the convicts does not result in cruelty to the society. Naturally enough, the authorities would be anxious to ensure that the convict who is released on furlough does not seize the opportunity to commit another crime when he is at large.
7. In paragra
