Bombay High Court
Jakir Maheboobkhan Pathan vs The State Of Maharashtra on 4 April, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 252 OF 2016
Jakir Maheboobkhan Pathan,
Convict No.4736,
Open District Prison, Paithan,
Tq. Paithan, Dist. Aurangabad Petitioner
VERSUS
The State of Maharashtra Respondent
Mr. S.J.Salgare, APP for the State.
CORAM : R.M. BORDE &
K. L. WADANE, JJ.
DATE : 04th April, 2016.
ORAL JUDGMENT : ( Per R. M. BORDE, J. )
1 Heard.
2 Rule. Rule made returnable forthwith and heard
finally by consent of learned Counsel for respective parties.
3 Petitioner, who is a convict, is undergoing sentence of
life imprisonment and is presently lodged at Open Central Prison,
Paithan, since last sixteen years. Petitioner claims that he has
already completed substantive period of imprisonment and that the
respondents-authorities have not considered him eligible for the
benefit of amended Rule 16 of the Prison (Bombay Furlough and
Parole) Rules 1959, which has been brought on the Rule book from
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23rd April, 2012. Petitioner claims that in accordance with Rule 16
of the Rules, he is entitled to be granted benefit of 14 days
extended period of furlough while considering his claim of
remission of sentence.
4 The issue raised in the petition is no more res integra
in view of judgment of the Supreme Court in the matter of State of
Haryana and others Vs. Jagdish, reported in 2010 AIR(SC) 1690
as well as decision of Division Bench of this Court at Bombay in
Criminal Writ Petition no. 1485/2013 decided on 24 th December,
2013. The Supreme Court in the matter of Jagdish (supra) in
paragraph no. 43 of the judgment has observed thus :
"
The State has to exercise its power of
remission also keeping in view any such
benefit to be construed liberally in favour of
a convict which may depend upon case to
case and for that purpose, in our opinion, it
should relate to a policy which, in the
instant case, was in favour of the
respondent. In case a liberal policy prevails
on the date of consideration of the case of a
lifer for pre-mature release, he should be
given benefit thereof." {emphasis supplied).
In view of judgment of the Apex Court, the State has to
exercise its power of remission by construing it liberally in favour of
the convict. If liberal policy prevails on the date of consideration of
the life convict for premature release, he should be given benefit
thereof.
5 For the reasons recorded above, we direct that case of
the petitioner be considered for premature release. Benefit of
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amended Rule 16 of the rules shall be given in case of extended
period of furlough of 14 days granted prior to 23 rd April, 2012. We,
therefore, direct that while considering the claim of petitioner for
grant of premature release, remission will have to be granted in
terms of the directions specified as above.
6 Rule is accordingly made absolute.
K.L.WADANE R.M.BORDE
JUDGE ig JUDGE
adb/crwp25216
