Bombay High Court
Jafar S/O. Abdul Haq Shaikh vs The State Of Maharashtra And ... on 24 November, 2017
Bench: S.S. Shinde
1293.2017 Cri.WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1293 OF 2017
Jafar s/o.Abdul Haq Shaikh
Age-56 Years, Occ: Prisoner,
Convict No.C-7682
Central Prison, Harsul
Aurangabad. PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
Home Department,
Mantralaya, Mumbai-32.
2. The Inspector General of Police [Prison]
Maharashtra State, Pune.
3. The Deputy Inspector General of
Police [Prison],
Central Prison, Harsul
Aurangabad.
4. The Superintendent of Prison,
Central Prison, Harsul,
Aurangabad. RESPONDENTS
...
Mr.M.M.Chaudhari, Advocate for the Petitioner
Mrs.P.V.Diggikar, APP for the
Respondent/State
...
CORAM: S.S.SHINDE &
MANGESH S.PATIL,JJ.
Reserved on : 20.11.2017
Pronounced on : 24.11.2017
1293.2017 Cri.WP.odt
JUDGMENT: (Per S.S.Shinde, J.):
1] Heard.
2] Rule. Rule made returnable
forthwith, and heard finally with the consent
of the parties.
3] This Petition is filed with the
following prayer:
C) To quash and set-aside the Judgment
and order passed by respondent No.3
dated. 15/2/2017 and Judgment and
order passed by respondent No.2
dated.19/8/2017 refusing furlough to
the petitioner.
4] Learned counsel appearing for the
petitioner invites our attention to the
pleadings and grounds taken in the Petition,
annexures thereto and submits that, though
the petitioner is convicted for the offence
punishable under Section 302 of the Indian
1293.2017 Cri.WP.odt
Penal Code and he is a convict in a bomb
blast case, nevertheless as and when he was
released on furlough / parole, he has
reported back to the jail on his own within
time. It is submitted that the petitioner's
case stands on different footing vis-a-vis
other co-accused in a bomb blast case,
inasmuch as the petitioner is not a convict
under the Terrorist and Disruptive Activities
[Prevention] Act, 1987 [for short 'TADA'].
He invites our attention to the contents of
the letter written by the Assistant Police
Commissioner, Samata Nagar, Region Mumbai
addressed to the Deputy Inspector General of
Prisons, Central Region, Aurangabad, dated
29.12.2016 and submits that the said Officer,
after recording the statement of adjoining
residents where the petitioner's daughter is
residing, has recorded satisfaction that the
daughter of the petitioner is ready to stand
as surety. Whenever on earlier occasion the
1293.2017 Cri.WP.odt
petitioner was released on furlough/parole,
he did not misuse the liberty or misbehave
and reported back to the jail within time.
It is submitted that merely because the
appeal filed by the petitioner is pending
before the Supreme Court, challenging his
conviction is no ground to reject his
application for furlough. In support of his
aforesaid contentions he placed reliance on
the reported judgment of the Division Bench
at Principal Seat [Coram :
Smt.V.K.Tahilramani & Sandeep K.Shinde, JJ.]
in Criminal Writ Petition No.2027/2017,
decided on 21.06.2017 and the Supreme Court
judgment in the case of the Asfaq Vs. State
of Rajasthan in Civil Appeal No.10464 of
2017, decided on September 11, 2017.
Therefore, he submits that, the Petition
deserves to be allowed.
5] On the other hand, learned APP
appearing for the respondent-State, relying
1293.2017 Cri.WP.odt
upon the affidavit-in-reply filed by one Shri
Bapurao s/o.Ramrao More, working as
Superintendent, Aurangabad Central Prison,
Aurangabad, submits that, the impugned order
is passed by the Deputy Inspector General
[Prison], Central Region, Aurangabad on
15.02.2017, considering the report submitted
by the Assistant Police Commissioner, Bombay,
dated 29.12.2016 as the accused/petitioner is
convicted in Sessions Case No.643, 643-
A/1135/1998 and he is undergoing imprisonment
in Central Prison, Aurangabad. It is
submitted that the present petitioner
preferred an appeal before the Additional
Director General of Prison, Pune and the said
authority confirmed the decision. While
rejecting the prayer of the petitioner, the
said Authority has considered the provisions
of Maharashtra Prison Manual, 1979 Chapter-37
[Furlough and Parole] Rules, 4 [4] and
Government Resolution dated 26.08.2016. The
1293.2017 Cri.WP.odt
authorities observed in the order that in
view of the Government Resolution in para 3
[b] [13], if the convict, who is sentenced
for offence as such dacoity, terrorist
crimes, mutiny against State, kidnapping for
ransom, smuggling of narcotic or psychotropic
substances, rape or rape with murder in that
case furlough cannot be granted. In the
present case, the petitioner is convict of an
offence related to the terrorist crimes,
therefore, the authority has rightly rejected
the application of the present petitioner. It
is submitted that as per the report it
reveals that, on one occasion petitioner was
released on furlough, and he reported to the
prison within time. On three occasions the
petitioner was released on parole, and he
returned back to the prison within time. As
per the amendment presently carried out by
the State of Maharashtra in Prison Manual,
the present petitioner is not entitled for
1293.2017 Cri.WP.odt
furlough / parole as he is a convict related
to the terrorist crimes, therefore, the
authority has rightly rejected his
application.
6] We have given careful consideration
to the submissions of the learned counsel
appearing for the petitioner and the learned
APP appearing for the respondent-State. We
have carefully perused the impugned order, it
appears that the main ground on which the
application of the petitioner is rejected
appears to be that the Government of
Maharashtra, Department of Home, issued a
Notification dated 26th August, 2016, merely
because in view of the said Notification and
since the petitioner is a convict in a bomb
Blast case, no parole/furlough can be granted
to him. In this respect, it would be gainful
to make reference to the order passed by the
Division Bench at Principal Seat [Coram :
Smt.V.K.Tahilramani & Sandeep K.Shinde, JJ.]
1293.2017 Cri.WP.odt
in Criminal Writ Petition No.2027/2017,
decided on 21.06.2017, wherein the petitioner
was a convict in a case relating to the bomb
blast and it was mentioned in the police
report that if the petitioner is released on
parole, he will not report back to the
prison. However, keeping in view the earlier
record of the petitioner therein, in respect
of his release on parole/furlough and the
fact that the petitioner therein did not
misuse the liberty given to him, and reported
back within time to the prison, the Division
Bench issued directions to release the
petitioner therein for a period of 30 days on
parole.
7] In the facts of the present case, as
it is evident from the reply filed by
respondent no.2 that, as and when the
petitioner was released on furlough / parole,
he reported back to the jail within time. He
did not misuse the liberty granted to him as
1293.2017 Cri.WP.odt
it is evident from the report submitted by
the Assistant Police Commissioner, Samata
Nagar, Region Mumbai addressed to the Deputy
Inspector General of Prisons, Central Region,
Aurangabad. It is true that the petitioner is
convicted for the offence punishable under
Section 302 of the Indian Penal Code in a
bomb blast case. However, the respondents
have not disputed assertion of the petitioner
that he is not convict for the offence under
TADA.
8] In that view of the matter, keeping
in view the earlier record of the petitioner
that as and when he was released on
parole/furlough, he reported back to the jail
within time and he did not misuse the liberty
granted to him and also his daughter is ready
to stand as surety, prayer of the petitioner
to release him on furlough deserves
consideration.
1293.2017 Cri.WP.odt
9] So far as ground raised by the
respondents that the petitioner's appeal
against conviction and sentence is pending
before the Supreme court is concerned, in a
similar set of facts, the Division Bench
[Coram: B.P.Dharmadhikari & V.M.
Deshpande,JJ.] in Criminal Writ Petition
[CWP] No.196/2017 [Arun s/o.Gulab Gawli &
another Vs. State of Maharashtra & others]
with Criminal Writ Petition [CWP] No.97/2017,
decided on 26th April, 2017, has observed that
merely because appeal is pending, is no
ground for not considering the request of the
convict to release him on parole/furlough as
the case may be. In the recent judgment of
the Supreme Court in the case of the Asfaq
Vs. State of Rajasthan in Civil Appeal No.
10464 of 2017, decided on September 11, 2017,
it is observed in para 22 of the said
judgment that, mere nature of the offence
committed by convict should not be a factor
1293.2017 Cri.WP.odt
to deny the parole outrightly. Wherever a
person convicted has suffered incarceration
for a long time, he can be granted temporary
parole, irrespective of the nature of offence
for which he was sentenced. We may hasten to
put a rider here, viz. in those cases where a
person has been convicted for committing a
serious office, the competent authority,
while examining such cases, can be well
advised to have stricter standards in mind
while judging their cases on the parameters
of good conduct, habitual offender or while
judging whether he could be considered highly
dangerous or prejudicial to the public peace
and tranquility etc.
10] In the present case, as already
observed, the petitioner did not misuse the
liberty when he was released on earlier
occasion on furlough/parole, he reported back
to the jail within time. He is in jail for
more than 10 years. Therefore, in our
1293.2017 Cri.WP.odt
opinion, keeping in view the order passed by
the Division Bench at Principal seat [Coram :
Smt.V.K.Tahilramani & Sandeep K.Shinde, JJ.]
in Criminal Writ Petition No.2027/2017,
decided on 21.06.2017 and taking into
consideration the facts and circumstances of
this case, we are inclined to allow this
Petition. Accordingly, the Petition is
allowed in terms of prayer (C). We direct the
respondents that, the petitioner be released
on furlough subject to the compliance of all
the procedural formalities including
furnishing the surety/sureties. Rule is made
absolute on above terms. The Writ Petition
stands disposed of accordingly.
[MANGESH S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
