Baburao Marotrao Dakhore ... vs The State Of Maharashtra
2017 Latest Caselaw 8394 Bom

                                        1              Cri.W.P.1397-17.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD


            CRIMINAL WRIT PETITION NO.1397 OF 2017

     Baburao Marotrao Dakhore,
     Age - 53 years, convicted for 10 years
     of imprisonment and from last 2 years 
     and 7 months undergoing the 
     Sentence - Convict No.C9960,
     Nashik Road Central Prison, Nashik. ...  Petitioner

                      Versus

     1.      The State of Maharashtra
             Through Ministry of Home Department, 
             Mantralaya, Mumbai. 
     2.      The Divisional Commissioner,
             Nashik Road Central Prison,
             Nashik.
     3.      The Superintendent,
             Nashik Road Central Prison, 
             Nashik.                                ...  Respondents

                                ...
     Mr. Nikhil Jaiswal, Advocate for Petitioner (Appointed)
     Mr. A.R.Kale, APP for Respondents - State 
                                ...


                                CORAM :  S.S.SHINDE AND
                                         MANGESH S. PATIL, JJ.

RESERVED ON : 31st October, 2017 PRONOUCED ON : 03rd November, 2017

2 Cri.W.P.1397-17.odt

JUDGMENT : (Per Mangesh S. Patil, J.) :-

Rule. The Rule is made returnable forthwith.

Heard finally by consent of learned advocate for the

petitioner and the learned APP.

2. Being aggrieved by the rejection of emergency

parole under Rule 19(1) of the Prisons (Bombay

Furlough and Parole) Rules, 1959, (herein after the

'Rules'), the petitioner has preferred this Writ Petition.

3. The petitioner having been convicted for the

offences punishable under Section 376(2)(H)(I)(N) of the

Indian Penal Code as well as for the offence punishable

under Section 4 read with Section 3 of the Protection of

Children from Sexual Offences Act by the Learned

Sessions Court, Hingoli, is suffering imprisonment for a

period of 10 years and fine of Rs.25,000/- in default to

suffer further R.I. for one year. He is in jail since

29.04.2015.

3 Cri.W.P.1397-17.odt

4. Unfortunately his father died on 17.07.2016 and

therefore, he applied for emergency parole as well as

regular parole under the provisions of the Rules.

Respondent No.3 rejected the application and the appeal

preferred before Respondent No.2 has also been

dismissed on 18.04.2017 on the ground that by virtue of

Government Notification dated 26.08.2016 amending

various provisions of the Rules, since the petitioner is

suffering sentence for sexual offence against child he is

not entitled to parole.

5. According to the learned Advocate for the

petitioner, this amendment in the Rules exclusively

relates to the provisions which are applicable to

furlough, whereas the petitioner has been seeking a

parole and his case is not covered by it. Infact the

Respondents have not decided the petitioner's

application promptly and thereby committed gross

impropriety.

6. The learned APP submitted that not only Rule 4

4 Cri.W.P.1397-17.odt

has been amended, which is applicable to furlough,

simultaneously Rule 19, which is applicable to parole

has also been extensively amended and therefore, it

cannot be said that the amendments carried out in

these Rules in the year 2016 are not applicable to the

petitioner's case. Since by virtue of such amendment,

the prisoners involved in sexual offences against minor

are not entitled to a furlough, the petitioner is not

entitled to be released on parole as well in view of the

amended Sub Rule 2 of Rule 19.

7. We have perused the papers and the impugned

order. There is no dispute about the fact that the

petitioner is suffering imprisonment inter alia for an

offence punishable under Section 4 read with Section 3

of the POCSO Act. Therefore, the only question is as to

whether such a prisoner is entitled to be released on

parole.

8. In order to appreciate the controversy, it is

necessary to note amended Rule 4 and particularly the

5 Cri.W.P.1397-17.odt

relevant provision :

Rule 4 :- When prisoners shall not be granted furlough -

The following categories of prisoners shall not be considered for release on furlough :-

                      (1)      .....
                      (2)      .....
                      (3)      .....
                      (4)      .....
                      (5)      .....
                      (6)      .....
                      (7)      .....
                      (8)      .....
                      (9)      .....
                      (10)     .....
                      (11)     .....
                      (12)     .....
                      (13)     .....
                      (14)     .....
                      (15)     .....
                      (16)     .....
                      (17)     .....
                      (18)     Those   involved   in   sexual   offences   against  
                               minor and human trafficking.

Rule 19 :- When a prisoner may be released on parole.

(1) Emergency Parole.-

(A) All convicted prisoners may be eligible for emergency parole for following reasons -

(a) Death of parental grandfather or grandmother/father/mother/spouse/son/ daughter/brother/sister ;

                              (b)      ..... 
                              (c)      .....
                       (B)   .....

                      (2)      Regular Parole.-

All Prisoners eligible for furlough shall be eligible for regular parole.

                               (A)       ..... 
                               (B)       ..... 
                               (C)       ..... 

9. It is to be borne in mind that this amendment has

come into effect on 26.08.2016. Since the application

6 Cri.W.P.1397-17.odt

for release on parole was moved after coming into force

of such amendment the petitioner's case would certainly

be governed by the amended provisions.

10. As is clear from the wording of Sub Rule 1 of Rule

19, all convicted prisoners are eligible for emergency

parole for the reasons mentioned therein like death or

illness of parents, for marriage of son, daughter, brother,

sister etc. Whereas, regular parole under Sub Rule 2 of

Rule 19 declares that all prisoners eligible for furlough

shall be eligible for regular parole and the subsequent

clauses regulate the provisions relating to the regular

parole. It is thus, apparent that all convicted persons

are entitled to emergency parole. However, for being

entitled to regular parole, the prisoner must be entitled

to a furlough. It is, therefore, a pre-requisite for release

of a prisoner on regular parole that he should be

entitled to a furlough under Rule 4. Therefore, the

submission of the learned Advocate for the petitioner

that the amended rules only govern grant of furlough

and does not regulate parole is incorrect.

7 Cri.W.P.1397-17.odt

11. Coming to the facts of case in hand, admittedly the

petitioner has been convicted for sexual offence against

minor punishable under the POCSO Act. Therefore, by

virtue of the amended clause 18 of Rule 4, the petitioner

is not entitled to a furlough and consequently he is also

not entitled to a regular parole. However, he was

entitled to an emergency parole under the amended

Rules (supra) which is available to all convicts

irrespective of the fact as to whether he is entitled to a

furlough or otherwise.

12. It is necessary to note that the petitioner's father

has died on 17.07.2016 as is apparent from the death

certificate annexed with the petition and consequently,

the element of emergency required for considering

entitlement to parole has been lost due to passage of

time. It would now be only academic to consider, if the

petitioner could have been released on emergency parole

when he had applied first after demise of his father. Be

that as it may, the fact remains that as on today this

8 Cri.W.P.1397-17.odt

ground is not available to consider the request of the

petitioner to be released on emergency parole and the

impugned orders in the peculiar facts and the

circumstances cannot be faulted with.

13. We appreciate the sincere efforts taken by the

Advocate Mr. Nikhil Jaiswal, who promptly prepared the

petition and rendered able assistance during the course

of the hearing of the petition. Since Mr. Nikhil Jaiswal,

learned counsel is appointed to prosecute the cause of

the petitioner, his fees be paid as per the schedule of

fees maintained by the High Court Legal Services Sub-

Committee, Aurangabad.

14. In the circumstances, the petition is liable to be

dismissed. The petition is dismissed. The Rule is

discharged.

(MANGESH S. PATIL, J.) (S.S.SHINDE, J.) ...

vmk/-