The Bombay High Court allowed the petition challenging the order dated 14.07.2020, which rejected the Petitioner’s grant of Parole.
A division bench of this Court comprising of Hon’ble Justice Vinay Joshi and Valmiki SA Menezes held that one has to calculate the period of incarceration by including the period of set off and remission earned by the Petitioner to determine the parole eligibility.
Brief Facts:
In this petition, the Petitioner challenged the order dated 14.07.2020 passed by respondent no.1 rejecting the grant of regular Parole in terms of Rule 19[3] of the Maharashtra Prison (Parole and Furlough) Rules (“the 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.
The Petitioner is in jail since 30.06.2013, and thus according to him, including the period of set off and remission, he has undergone a sentence for 10 years and is, therefore eligible for grant of Parole leave.
Contentions of the Petitioner:
The learned Counsel for the Petitioner contended that the Petitioner had already completed 10 years of imprisonment, including the period of set off and remission. He produced the 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. In support of said contention, he relied on the decision of this Court in the case of Gorakh @ Baba Patole .vrs. Government of Maharashtra – 1993 [2] Mh.L.J. 1423.
Contentions of the Respondent:
The main resistance of the state was on the ground of the in-eligibility of the Petitioner on account of non-fulfillment of the eligibility criteria in terms of Rule 2 [4] of the rule. It was 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, their contention was 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.
Observations of the Court:
This Court perused the catena of judgments cited by both parties. In reference to Gorakh Patole case, it was observed that in that decision the Court held that after completion of period of imprisonment imposed for the offence of Section 397 of the Code, the prisoner would cease to be a convict under Section 397 of the Code, and would have been freed if not convicted under Section of the code.
Herein also, if the prisoner was convicted only for the offence under Section 397 of the Code, then certainly the period of set off and remission would have been calculated on which he would have been released. Therefore, it was held that while applying Rule 4[2] of the Rules, one has to calculate the period by including the period of set off and remission earned by the Petitioner.
The decision of the Court:
The Bombay High Court, allowing the petition, held that the petitioner is entitled to regular parole for the period as may be permissible in law.
Case Title: Shoyab Mehtab Ali v. Divisional Commissioner and Anr.
Coram: Hon’ble Justice Vinay Joshi and Valmiki SA Menezes
Case no.: CRIMINAL WRIT PETITION NO. 772 OF 2021.
Advocate for the Petitioner: - Mr. S.R. Jaiswal
Advocate for the Respondents: - Shri M.J. Khan
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