Rubina Suleman Memon vs The State Of Maharashtra And Ors
2016 Latest Caselaw 7597 Bom

                                                                   (14)WPNo.40172016

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CRIMINAL APPELLATE SIDE




                                                                              
                 CRIMINAL WRIT PETITION NO.4017 OF 2016




                                                      
    Smt.Rubina Suleman Memon,
    Age.36 Years, R/o.Flat No.11,
    3rd Floor, Bismillah Manzil,




                                                     
    Cadel Road, Mahim.                              ...    Petitioner

              V/s.




                                            
    1.        The State of Maharashtra

    2.                           
              The Additional D.G.P.,
              Maharashtra State, Pune-1,

    3.        The Supt. Of Prison,
                                
              Yerwada Central Prison.

    4     The Senior Inspector of Police,
          Mahim Police Station,
      

          Mumbai.                         ...   Respondent
                                   .....

Mrs.Farhana Shah, Advocate for the Petitioner. Mr.H.J.Dedia, APP for the Respondent/State.

....

CORAM : SMT.V.K.TAHILRAMANI & A. M. BADAR JJ.

DATED : 22nd DECEMBER 2016.

ORAL JUDGMENT : (Per V.K.TAHILRAMANI J.) 1 Heard both sides.

2 Rule. Rule is made returnable forthwith and the

matter is heard finally.

    Gaikwad RD                                                                         1/9





                                                                           (14)WPNo.40172016

    3                  The case of the petitioner is that the petitioner




                                                                                     

preferred an application for furlough on 22/01/2015. The said

application was rejected by order dated 15/01/2016. Being

aggrieved thereby the petitioner preferred an appeal. The

appeal was dismissed by order dated 24/05/2016, hence this

petition.

4 The application of the petitioner for furlough came

to be rejected under Rule 4(4) of the Prisons (Bombay

Furlough and Parole) Rules, 1959. Rule 4(4) states that

prisoners whose release is not recommended by the

Commissioner of Police/District Magistrate on the ground of

public peace and tranquility, shall not be granted furlough. In

that order, it is reflected that the petitioner is the wife of

brother of Yakub Abdul Razak Memon. She will spend her

period of furlough in Mahim area, in which area people of all

communities reside. If she is released on parole people will

turn up to meet her in large numbers and there would be a

law and order problem. This is stated in view of the fact that

during the funeral of Yakub Abdul Razak Memon, the crowd

was in thousands. The learned Additional Public Prosecutor

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(14)WPNo.40172016

also pointed out that the petitioner has been convicted under

the Terrorist and Destructive Activities Act, 1987 (In short,

'TADA Act') hence under Rule 4(13) the petitioner would not

be entitled to be released on furlough, as sub rule 13 to Rule

4 states that prisoners who are convicted for terrorist crime

shall not be released on furlough. He pointed out that

admittedly, the petitioner is convicted under TADA, hence, she

is not entitled to be released on furlough. He further pointed

out that this court in two decisions has held that sub rule 13

to Rule 4 is not ultra vires.

5 In reply Ms.Farhana Shah submitted that three co-

accused of the present petitioner who have also been

convicted under TADA have been released on bail. They are

Sardar Shahwali Khan, who was released on furlough by order

dated 09/06/2014, Nasir Abdul Kadar, who was released on

furlough by order dated 27/06/2014 and Isa Abdul Razak

Memon, who was released on furlough by order dated

10/06/2016. She submitted that these three co-accused have

also been convicted under TADA Act, hence they are similarly

situated as the present petitioner and if they have been

Gaikwad RD 3/9

(14)WPNo.40172016

granted furlough, the petitioner also ought to be released on

furlough.

6 In reply, the learned Additional Public Prosecutor

submitted that the three co-accused were granted furlough

based on the decision dated 18/2/2014 of the Aurangabad

Bench of this Court in Criminal Writ Petition No.432 of 2013.

The said decision is in the case of Balu s/o. Savleram Ubale

v. State of Maharashtra and others and it is reported in

2014 ALL MR (Cri) 2413. The said decision is on Rule 4(13)

of The Prisons (Bombay Parole & Furlough) Rules (hereinafter

called the Rules). The learned Additional Public Prosecutor

also relied on the notification / Circular dated 23/02/2012 by

which sub rule 13 was added to Rule 4 of the Rules. Rule

4(13) states that prisoners who have been convicted for

terrorist crime cannot be released on furlough.

7 As far as decision in the case of Balu Ubale is

concerned, it was held that the Rule 4(13) would apply

prospectively and not retrospectively and as the convict in the

said case was convicted in the year 2002, the notification of

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(14)WPNo.40172016

23/02/2012 would not apply to the convict. Mr.Farhana Shah

pointed out that the petitioner has been convicted by

Judgment and Order dated 12/09/2006, hence, the Notification

dated 23/02/2012 would not apply to the petitioner. As far as

issue of prospective or retrospective effect of the notification

dated 23/02/2012 is concerned, the Government by Circular

No.SANKIRN/0913/1074/CR/593/13/PRS-31 dated 13/06/2014

has clarified that the Government Notification dated

23/02/2012 would apply with prospective effect. Thus now

there is no dispute about prospective or retrospective effect of

the Notification dated 23/02/2012, as it has been clarified that

said notification would only apply with prospective effect. The

learned Additional Public Prosecutor pointed out that in view

of the decision in the case of Balu Ubale in which it was held

that as conviction took place prior to the Notification, the

Notification would apply prospectively and it would not be

attracted in case of prisoners who were convicted prior to the

date of notification, hence the three co-accused Sardar Nasir

and Isa relying on the decision in the case of Balu Ubale

were released on furlough as their conviction date was prior to

Notification. The learned Additional Public Prosecutor

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(14)WPNo.40172016

submitted that no doubt, in the case of Balu Ubale, it was held

that as the conviction took place prior to the Notification, the

Notification would not be attracted in case of prisoners where

the offence took place prior to the circular, but the decision in

the case of Balu Ubale has been held to be per incuriam in the

decisions of this court in the case of Sharad Devaram Shelake

vs. The State of Maharashtra reported in 2016 ALL MR

(Cri) 4128 and in the case of Santosh Namdeo Bhukan vs.

State of Maharashtra (Criminal Writ Petition 3325 of 2014)

decided on 5/05/2016. The learned Additional Public Prosecutor

argued that the decision in the case of Balu Ubale would not be

good law in view of the decision of this Court in Sharad

Shelake and Santosh Bhukan. Hence, no reliance can be

placed on the fact that three co-accused were released on

furlough, because they were released in view of the decision in

the case of Balu Ubale.

8 The Division Bench of this Court in the case of

Subhash Hiralal Bhosale vs. State of Maharashtra

and another1 which was decided prior to Santosh Ubale

has held that the relevant date is date of application for furlough

1 2014 ALL MR (Cri.) 4330

Gaikwad RD 6/9

(14)WPNo.40172016

and not the date of conviction. It, therefore, followed that the

relevant date is date of the application and not the date of

offence or the date of conviction. Thus, it is not the date on

which the offence was registered or the prisoner was

convicted and sentenced which is relevant, but the date on

which the prisoner makes an application for furlough. If the

application is after 23/03/2012 the notification dated

23/02/2012 would apply and a prisoner who is involved in a

terrorist crime would not be entitled to be released on

furlough. The decision in the case of Subhash Hiralal Bhosale

is dated 04/09/2013 and the decision in the case of Balu Ubale

is dated 18/02/2014. The decision in the case of Balu Ubale

was rendered in ignorance of the earlier decision of the

Division Bench of this Court in the case of Subhash Bhosale,

hence, in the case of Sharad Shelake and Santosh Bhukan it

was held that the decision in the case of Balu Ubale is per

incuriam.

9 Thus, by the above three decisions in the case

of Subhash Bhosale, Sharad Shelake and Santosh

Bhukan the issue is concluded that the relevant date to be

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(14)WPNo.40172016

considered in relation to the circular dated 23/02/2012 is the

date of application. The decision in the case of of Subhash

Bhosale was not pointed out when the case of Balu Ubale was

decided. Thus, it was held in Sharad Shelake and Santosh

Bhutan that the decision in the case of Balu Ubale is per

incuriam.

10 In this view of the matter, reliance placed by the

Competent Authority on decision in the case of Balu Ubale for

grant of furlough to the three co-accused Sardar, Nasir and Isa

cannot be relied upon. As the authority granting furlough to

Sardar, Nasir and Isa was not aware of the decision of this

Court dated 05/05/2016 in the case of Santosh Namdeo

Bhukan and Sharad Shelake wherein it was held that the

decision in the case of is per incuriam, the authority has

granted furlough based on the decision in the case of Balu

Ubale.

11 As stated earlier, the petitioner has been convicted

under the TADA Act as she is a terrorist. Hence, the

notification dated 23/03/2012 whereby sub rule 13 to Rule 4

Gaikwad RD 8/9

(14)WPNo.40172016

was added fully applies to the case of petitioner, hence, we

are not inclined to release the petitioner on furlough.

    12               Rule is discharged.




                                              
    (A. M. BADAR J.)                 (SMT. V. K. TAHILRAMANI J.)




                                          
                               
                              
      
   






    Gaikwad RD                                                                  9/9