C-5876 vs State Of Maharashtra
2013 Latest Caselaw 322 Bom

                                                             Wp680.13


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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                 
            Criminal Writ Petition No.680 of 2013


     Amit son of Gajanan Gandhi,
     [in Jail], Convict No.
      

     C-5876,
     Central Prison, Nagpur.          &..          Petitioner.
   



                            Versus





     1.   State of Maharashtra,
          through Divisional
          Commissioner,
          Nagpur Division, Nagpur.





     2.   The Superintendent of
          Prison, Central
          Prison, Nagpur.             ....         Respondents.



                            *****
     Mr. Nitesh Samundre, Adv., for the petitioner.




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                                      2




                                                                          
                                                  
     Mr. T.A. Mirza,         Addl.        Public          Prosecutor             for
     respondents.




                                                 
                                  *****


                                      CORAM       : A.B. CHAUDHARI AND
                                                    Z.A. HAQ,JJ.

Date : 11st December, 2013.

ORAL JUDGMENT [Per A.B. Chaudhari, J.]:

01. Rule. Rule is made returnable forthwith.

Learned APP Mr. T.A. Mirza waives service on behalf

of respondent nos.1 and 2. By consent, this Writ

Petition is taken up for final hearing.

02. Learned counsel for the petitioner invited

our attention to Rule 25 of the Prisons [Bombay

Furlough & Parole Rules, 1959, and argued that

there is a discretion in the authority to extend

the parole for a period of ninety days in all and,

therefore, there is failure to exercise

jurisdiction on the part of the authority by

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passing the impugned order refusing to grant

extension of parole, when statutorily there is a

power in the authority to do so. According to him,

this has resulted into miscarriage of justice to

the petitioner, as he is being denied extension of

parole when Rule 25 of the said Rules specifically

provides for it.

03. In opposition to the Writ Petition, learned

APP Mr. Mirza submitted that the mother of the

petitioner, aged about 52 years, as verified by the

Police Department, is not suffering from any

aliment, as alleged. According to him, the

petitioner s mother is cured of ailments suffered

by her earlier and, therefore, there was no need to

extend the parole. He, thus, prayed for dismissal

of the Writ Petition.

04. Heard. Perused the record. In para 5 of

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the Affidavit-in-Reply, there is a specific

averment about the verification done by the Police

Department in respect of the health of mother of

the petitioner. Para 3 of the Affidavit-in-Reply

gives details of grant of parole. The learned APP

orally supplied

Court in that context.

additional information to this

The petitioner had applied for parole leave

on 24th January, 2013, which application was

received by the Office of Divisional Commissioner

on 5th February, 2013. The police report dated 5th

June, 2013 was received on 7th June, 2013, and the

petitioner was actually released from jail upon

grant of parole on 6th September, 2013 till 13th

September, 2013. By order dated 17th September,

2013, extension of parole for seven days was

granted. By another order dated 24th September,

2013, second extension of parole for ten days was

granted. The total period of parole came to thirty-

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one days. Thereafter, by order dated 5th October,

2013, third extension for seven days was again

granted, with a stipulation that the parole would

not be extended any further. However, the

petitioner again applied for extension of parole

and, thus, on 12th October, 2013, his application

was rejected.

05. The petitioner in the present case was

convicted by the Trial Court for a serious charge

of rape and murder of a minor girl, and was awarded

death sentence, which was confirmed by this Court.

The Supreme Court commuted the death sentence into

a sentence for life and he is, thus, undergoing

imprisonment for life. The petitioner belongs to

Nagpur and he is lodged in Nagpur Central Prison.

Obviously, in the jail, his relatives and friends

meet him on regular basis. This Court has observed

that large number of convicts undergoing sentence

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for life imprisonment from this area are lodged in

Nagpur Central Prison despite confirmation of their

sentence to life imprisonment by the final Court.

It is not known as to how majority of the convicts

undergoing life imprisonment from this region are

being lodged in Nagpur Central Prison, and not in

other Central Jails of the State. That apart, as

stated earlier, these convicts being at Nagpur,

their relatives and friends meet them regularly in

the prison. Despite this position, the provision

of parole seems to have been misused as in the

instant case which is clear from the averments in

paragraph 5 and relevant portion of paragraph 6 of

the Affidavit dated 19th November, 2013 filed on

behalf of respondent no.1, which are quoted below:-

               5.     It  is    submitted  that   the
              petitioner     has     filed    Medical

Certificate dated 4th October, 2013 of Dr. S.R. Chaterjee which reveals that mother of the petitioner is suffering from hypertension with debility and the Doctor has advised for ECG. Thus, from the Medical Certificate it reveals that

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the mother of the petitioner is not suffering from serious ailment and hence presence of present petitioner is

not necessary. It is submitted that in the report dated 4th June, 2013, it has been specifically mentioned that mother of the present petitioner is not a serious patient. So also it has been

specifically mentioned that the petitioner is having elder brother to

take care of his mother. Despite of this fact on humanitarian ground the petitioner has been released on parole

leave and the same was extended from time to time total for 31 days. Thus, considering the above said circumstances the application for extension of parole leave was rightly

rejected by the answering respondent by th its order dated 12 October, 2013.

6. ............................... ........On the contrary, the Medical th Certificates dated 4 October, 2013

shows that the mother of the petitioner is suffering from Syst hypertension with debility which is a common ailment now a days. The contention made in the petition that the petitioner is require to arrange money for further medical

treatment of his mother is denied by the answering respondent for the obvious reason that in the application th dated 5 October, 2013 the petitioner had submitted that his father is a Govt. servant. .....

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06. Perusal of the above facts clearly show

that the extensions of parole granted from time to

time as aforesaid on three occasions were not at

all warranted. At this stage, it is necessary to

refer to Rule 19, as it stood under Notification

No. PAR 4582/1/PRS-2

which is quoted below:-

dated 21st November, 1989,

19. When a prisoner may be released on parole :- A prisoner may be released on parole for such period not exceeding thirty days, at a time, as the

Competent Authority referred to in Rule 18, in its discretion may order, in

cases of serious illness, or death of nearest relative such as mother, father, sister, brother, children, spouse of the prisoner, or in case of

natural calamity such as house collapse, floods, fire. No such parole or extension of parole shall be granted without obtaining a police report in all cases except in the case of death of his nearest relatives mentioned

above;

Provided that a prisoner shall not be released on parole for one year after expiry of his last parole except case of death of his nearest relatives mentioned above.

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07. Rule 19 was substituted by Notification No.

JLM. 1006/CR.249/PRS-2 dated 7th February, 2007 as

under:-

19. When a prisoner may be released on parole.- A prisoner will be released

on parole for such period as the Competent Authority referred to in rule 18 in its discretion may order, in case

of serious illness, or death of any member of the prisoner s family or of his nearest relatives, or pregnant woman prisoner for delivery (except high security risk prisoner), or for

any other sufficient cause.

08. Lastly, Rule 19 has again been substituted

23rd

by Notification RJM.2003/CR-32/PRS-2 dated

February, 2012, which reads as follows:-

19. When a prisoner may be released on parole.

A prisoner will be released on parole for such period not exceeding thirty days at a time as the Competent Authority referred to in rule 18 in its discretion may order, in case of serious illness or death of nearest relative such as father, mother,

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brother, sister, spouse, children or marriage of brother, sister and children of prisoner or pregnant woman

prisoner for delivery (except high security risk prisoner) or in case of natural calamity such as house collapse, floods, fire, earthquake. No such parole or extension of parole

shall be granted without obtaining a police report in all cases except in

the case of death of his nearest relatives mentioned above;

Provided that, a prisoner shall not be released on parole for the period of one year after the expiry of his last parole except in case of death of his nearest relative mentioned

above.

09. As per Notification dated 21st November,

1989, proviso to Rule 19 imposed a bar of period of

one year for release on parole after the expiry of

prisoner s last parole. But strangely enough, that

bar of one year was removed by Notification dated

7th February, 2007, with the result that prisoner

became eligible to claim parole without any

prohibition of one year from the last parole,

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thereby making the jail sentence meaningless to

much extent. Fortunate enough, the said proviso

has been restored by Notification dated 23rd

February, 2012. Still the misery of the society

does not end here.

10.

To repeat, it is clear from the reading of

the Rule 19 with Rule 25 that the order to release

on parole can be made for a period not exceeding

thirty days at a time and after expiry of last

parole, for a period of one year, a prisoner shall

not be released on parole except in case of death

of a nearest relative. Rule 25, however, provides

for grant of extension of parole, only if, before

the expiry of the period of parole granted, an

application for extension one week in advance is

made. It is further provided that the total period

shall not exceed ninety days. Thus, the total

period of parole that can be granted to a prisoner

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with extension in one year is ninety days, i.e.,

three months. Then there is a provision for grant

of furlough for a period of two weeks every year,

which takes the total to 105 days out of 365 days

in a year.

11.

It is a matter of anxiety that the Rules

themselves provide for a prisoner to remain outside

the jail for a total period of 105 days out of 365

days in a year. That is the reason why, as it is

reported by the Govt. Authorities that thousands of

prisoners released on parole and furlough in the

Maharshtra State have not come back to the prisons,

and have absconded from the course of justice for

serving out the sentence and they are not being

traced out. On the contrary, they are freely

moving in the society. Such convicts in large

number are of rape, murder and similar serious

offences and due to their free movement in the

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society, there is direct or indirect fear or

creation of terror in the minds of the victims,

their relatives, friends and the eye-witnesses etc.

A prisoner, who is frequently released on parole

and furlough for a total period of 105 days per

year moving freely in the society is bound to break

the moral of such concerned persons who would then

think hundred times before assisting or helping the

law enforcement agencies or the Police. We think,

this does not enure to the benefit of rule of law,

but is destructive of it. These rules, therefore,

require a re-look by the Government.

12. In the instant case, the petitioner applied

for parole on the ground of illness of his mother

on 24th January, 2013. If the petitioner s mother

was really seriously ill as contemplated by Rule

19, the parole should have been granted

immediately. However, the order granting parole was

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passed on 7th June, 2013, and the petitioner was

actually released from jail on 6th September, 2013,

i.e., nine months after the date of application.

Admittedly, there was no fresh application in

September, 2013. This clearly shows that the reason

for release of the petitioner on parole for the

January, 2013 serious illness of his mother had

become wholly irrelevant. This is a case of sheer

casual approach and gross negligence on the part of

authorities in dealing with the provision of

parole. The extensions were thereafter granted on

17th September, 2013, 24th September, 2013 and 5th

October, 2013, for seven, ten and seven days

respectively without looking into whether the

alleged seriousness of illness of mother of the

petitioner, that was reported in January, 2013,

continued or not. The age of the mother of the

petitioner is only 52 years, and as reported by her

doctor, she is suffering from hypertension and

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debility and nothing more. That cannot be called a

serious ailment, since many people complain of

hypertension and debility, and for which presence

of the prisoner was not at all needed, since the

husband of petitioner s mother is a Govt. Servant

getting all medical facilities for his family also.

13. To our mind, there is a rampant misuse of

the provision of parole. In this case also, the

provision of parole was clearly mis-utilized by the

petitioner. As earlier stated, the petitioner has

been lodged in Nagpur Central Jail and must have

been meeting his relatives and friends repeatedly

in the Nagpur Central Prison. In addition, he was

extended the facility of parole also. Thus, in our

opinion, there was a gross misuse and mis-

utilization of the provision of parole and furlough

by the petitioner and that is being observed in

many cases. To provide for release on parole and

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furlough for a period of 105 days in total out of

365 days must be said to be the Government itself

providing for luxury even to the convicts for

serious offences. The rule-making authority, in our

opinion, ought to think about the victims,

witnesses, their relatives and friends who always

have an apprehension about the convict moving in

their society eye to eye, resulting into fear of

and threat from the convicts. In our opinion, the

Govt. ought to restore confidence of the common man

and the sufferers. With the change of times, so

also overall degradation of moral standard in the

society and at the helm of the affairs, in our

opinion, (Bombay Furlough and Parole) Rules, 1959,

deserve overall changes for restoration of faith of

the people. Except making the said recommendation,

we cannot say anything more.

14. In the result, we pass the following

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order:-

O R D E R

Writ Petition No. 680 of 2013 is dismissed.

15.

Copy of this order be sent to the Chief

Secretary, Govt. of Maharashtra, forthwith for

information and further action, if any.

               Judge                                    Judge





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