Bombay High Court
Mohammad Rafiq Usman Shaikh vs The State Of Maharashtra And Ors on 12 December, 2017
Shridhar Sutar 1 26-wp-4145.17.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4145 OF 2017
Mohammad Rafiq Usman Shaikh
Age: 51 years
M. K. Building, B Wing, R.no.01,
Ground floor, Pipe Compound,
Maharaja corner, Amrut Nagar,
Mumbra, District: Thane,
Thane - 400 612.
Presently lodged in Kolhapur
Central Prison Convict no.C-5839. ... Petitioner
Versus
1. The State of Maharashtra.
2. The Secretary,
Home Department,
Mantralaya, Mumbai - 400 032.
3. The Superintendent of Prison,
Kolhapur Central Prison,
Kalamba, Kolhapur ... Respondents
.....
Mrs. Farhana Shah for the Petitioner.
Mr. Arfan Sait, APP for the State.
.....
CORAM : SMT. V. K. TAHILRAMANI, Acting C.J. &
M. S. KARNIK, J.
DATE : 12th DECEMBER, 2017.
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ORAL JUDGMENT : [Per Smt. V.K. Tahilramani, Acting C.J.]
1. 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
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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
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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
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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 paragraph 19 of the said decision, the Supreme Court
stated that while granting parole, it has to be considered whether
the prisoner is a hardened criminal and a threat to society. In this
connection, the learned A.P.P. pointed out that the petitioner is
involved not only in the bomb-blast case but also in many other
cases. In paragraph 19 in the case of Asfaq (supra), it is observed
that another vital aspect that needs to be discussed is as to
whether there can be any presumption that a person who is
convicted of serious or heinous crime is to be, ipso facto, treated as
a hardened criminal. Hardened criminal would be a person for
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whom it has become a habit or way of life and such a person
would necessarily tend to commit crimes again and again.
Obviously, if a person has committed a serious offence for which
he is convicted but at the same time it is also found that it is the
only crime he has committed, he cannot be categorized as a
hardened criminal. In his case, consideration should be as to
whether he is showing the signs to reform himself and become a
good citizen or there are circumstances which would indicate that
he has a tendency to commit the crime again or that he would be
a threat to the society. The present petitioner is not involved in
just one offence, but he is involved in more than one offence.
Besides the bomb-blast case, he is involved in CR 203/2009 of
Tardeo Police Station and two other cases under Local Act.
Moreover, in jail, the conduct of the petitioner is also not
satisfactory as he is not doing the work allotted to him in the jail
and he is also not following the rules and regulations. Report of
the Jailor to the said effect is taken on record and marked "X-1"
for identification.
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8. The Supreme Court in the case of Asfaq (supra), has made
a reference to the police report wherein it is stated that if the
petitioner is released on parole, it may lead to untoward incidents
in the society. In the present case also, the police report dated
11/12/2017 states that if the petitioner is released on parole, law
and order situation will arise. The said police report and other
papers are taken on record and marked "X-2" collectively for
identification. We also cannot be unmindful of the fact that in the
bomb-blast case in which the petitioner has been convicted 188
people died and 828 people were injured.
9. As stated earlier, the petitioner has relied on the medical
certificate issued by Dr. Neena S. Nichlani, who is attached to
Universal Hospital & Universal Medical Institute at Mumbra,
Thane. It is pertinent to note that the sister of wife of petitioner is
working in the very same hospital. Thus, the sister is very much
available to take care of the wife of petitioner in case she is
required to undergo surgery. Thereupon, the learned Counsel for
the petitioner submitted that it is a private hospital and the wife of
the petitioner may not be able to afford treatment in the said
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hospital. Assuming this is so, it is seen that the sister of the wife of
the petitioner is residing in the same area, as the wife of the
petitioner. Therefore, the sister of wife of the petitioner can very
well take care of the wife of the petitioner. In view of all the above
facts, the petition is dismissed. Rule discharged.
( M. S. KARNIK, J. ) ( ACTING CHIEF JUSTICE )
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