Anwar Abdul Aziz Pathan vs The State Of Maharashtra And Ors
2021 Latest Caselaw 12045 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION
                  CRIMINAL WRIT PETITION NO. 1428 OF 2021
Anwar Abdul Aziz Pathan
Age : 34 years, Occupation : Nil,
Residing at Room No. 3856,
Bhaskar Nagar, Shivmandir Area,
Morivali, Ambarnath (W),
Tal. Ambarnath, Dist. Thane.                          .... Petitioner
         Versus
1. The State of Maharashtra

2. The Superintendent,
   Kolhapur Central Prison,
   Kalamba, Kolhapur

3. Senior Police Inspector
   Ambarnath Police Station,
   Ambarnath, Dist. Thane                             ....Respondents
                             ****
Mr.N.N. Gawankar i/b Mr. Manas N. Gawankar for petitioner.
Mr. J.P. Yagnik, APP for State.
                                      ****
                       CORAM : S. S. SHINDE &
                                 N.J. JAMADAR, JJ.

Reserved for Judgment on : 23rd August 2021.

Judgment Pronounced on : 30th August 2021.

JUDGMENT : (PER N.J. JAMADAR, J.)

1. Rule. Rule made returnable forthwith and, with the consent

of the learned counsels for the parties, heard fnally.

2. The petitioner, who is undergoing sentence for the offences

punishable under sections 302, 452, 143, 147 to 149 and 506(2) of

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the Indian Penal Code, 1860 ('the Penal Code') and section 3 read

with section 25 of the Indian Arms Act, 1959 at Central Prison,

Kolhapur, Kamba, assails the legality and correctness of the

intimation letter, dated 17th February 2021, whereby the petitioner

was directed to surrender to prison revoking the order dated 5 th

June 2020 releasing the petitioner on emergency Covid 19 Parole in

accordance with the provisions contained in Rule 19(1)(C)(ii) of the

Prisons (Bombay Furlough and Parole) Rules, 1959 ('the Rules,

1959').

3. Shorn of superfuities, the background facts leading to this

petition can be stated as under :

By a judgment and order dated 16th August 2011, in Sessions

Case No. 46 of 2003, the petitioner came to be convicted for the

offences punishable under sections 302, 452, 143, 147 to 149 and

506(2) of the the Penal Code and section 3 read with section 25 of

the Indian Arms Act, 1959 and sentenced to suffer imprisonment

for life for the major offence. In the wake of Covid-19 Pandemic, the

petitioner was ordered to be released on emergency parole by order

dated 5th June 2020 initially for a period of 45 days.

4. The petitioner asserts that by intimation letter dated 17 th

February 2021 (Exh.'C' to the petition), without any rhyme or

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reason, the petitioner was directed to surrender back to prison as

the order releasing the petitioner on emergency Covid-19 Parole

was allegedly revoked.

5. The said intimation letter, according to the petitioner, is

legally unsustainable, arbitrary, unreasonable and in complete

derogation of the principles of natural justice. Arbitrariness is

manifest as no reason was ascribed for the alleged revocation of the

emergency parole. The petitioner has been unjustifably

discriminated as the other prisoners, who were released on

emergency parole, were granted the extension of parole leave by 30

days, at a time, in accordance with the rules. Hence, this petition.

6. An affdavit in reply has been fled by Mr. Chandramani A.

Indurkar, Superintendant, Kolhapur Central Prison, Kalamba. It

was contended that the period of emergency parole was duly

extended by the authorities. However, a communication was

received from the Senior Police Inspector, Ambarnath Police Station

on 16th February 2021, informing the respondent No.2 that the

petitioner had not complied with the condition of reporting to the

nearest police station for marking attendance for the last 3 to 4

months and had on 13th February 2021, joined a political party at

Ambarnath and there was likelihood of commission of offences as

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during the Election of the Municipal Council of Ambarnath, in the

past, untoward incidents and serious offences had occurred. Thus,

on the basis of the said report, vide communication dated 16 th

February 2021, the emergency parole leave came to be revoked for

breach of conditions on the part of the petitioner. Copy of the

communication, dated 16th February 2021 is annexed to the

affdavit in reply.

7. In the meanwhile, the petitioner surrendered back to the

prison on 24th May 2021.

8. An affdavit in rejoinder came to be fled by Shamimbano

Sahjad Khan, the mother-in-law of the petitioner. The contention of

respondent No.3 of breach of condition of the attendance on the

part of the petitioner was sought to be met by affrming that the

police offcials of Ambarnath Police Station blatantly declined to

mark the attendance of the petitioner, as no orders of extension

were received by Ambarnath Police Station. The act of the

petitioner joining a political outft by itself, according to the

deponent, could not have been a ground to revoke the emergency

parole leave, as it had not resulted in any unrest or breach of

public tranquility in Ambarnath area. It was further asserted that

the wife of the petitioner is critically ill and has been admitted at

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General Hospital, Malad and the presence of the petitioner is

required to attend to her. Thus, the petitioner be ordered to be

released on parole.

9. In the backdrop of the aforesaid pleadings, we have heard Mr.

Gawankar, the learned counsel for the petitioner and Mr. Yagnik,

the learned APP for the State. With the assistance of the learned

counsels for the parties, we have perused the material on record

including the report submitted by the Superintendent of Prison.

10. Mr. Gawankar submitted that the impugned intimation letter,

whereby the emergency parole leave was revoked, was beyond the

province of the authority of respondent No.2. A two fold submission

was sought to be canvassed. One, the respondent No.2 had no

authority to revoke the order of release on parole. Two, in any

event, the respondent No.2 could not have passed the order of

revocation of parole leave without providing an opportunity of

hearing to the petitioner. Mr. Gawankar also laid emphasis on the

fact that the intimation letter, dated 17th February 2020 (Exh.'C' to

the petition) which was addressed by the Senior Police Inspector,

Ambarnath Police Station, was bereft of reason for the revocation.

By no stretch of imagination, said intimation letter can be

construed as an order of revocation, canvassed Mr. Gawankar.

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11. In opposition to this, Mr. Yagnik, the learned APP would urge

that the release of the petitioner on parole was conditional on good

behaviour. One of the express conditions was marking presence at

the nearest police station once in a period of 30 days. There is no

material to indicate that the petitioner had complied with the said

condition. On the contrary, the petitioner indisputably participated

in political activity and joined the political outft and thereby

caused threat to public peace and tranquility. In the

circumstances, the respondent No.2 was well within his rights in

revoking the parole leave, submitted Mr. Yagnik.

12. To start with, it would be imperative to note that the order

dated 5th June 2020, whereunder the petitioner was released on

Covid-19 emergency parole, incorporated a condition that the

petitioner would mark his presence once in 30 days at the nearest

police station and that the petitioner would keep peace and be of

good behaviour.

13. Rule 19(1)(C)(ii) of Rules, 1959 reads as under :

                      "(C)        On declaration of epidemic under the
                      Epidemic      Diseases   Act,   1897,    by    State
                      Government:

(ii) For convicted prisoners whose maximum sentence is above 7 years shall on their application be appropriately considered for release on emergency parole by Superintendent of Prison, if the convict has returned to prison on time on last

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2 releases (whether on parole or furlough), for the period of 45 days or till such time that the State Government withdraws the Notifcation issued under the Epidemics Diseases Act, 1897, whichever is earlier. The initial period of 45 days shall stand extended periodically in blocks of 30 days each, till such time that the said Notifcation is in force (in the event the said Notifcation is not issued within the frst 45 days). The convicted prisoners shall report to the concerned police station within whose jurisdiction they are residing, once in every 30 days.

Provided that the aforesaid directions shall not apply to convicted prisoners convicted for serious economic offences or bank scams or offences under Special Acts (other than IPC) like MCOC, PMLA, MPID, NDPS, UAPA etc. (which provide for additional restrictions on grant of bail in addition to those under the Code of Criminal Procedure, 1973 (2 of 1974) and also presently to foreign nationals...."

14. In accordance with the Rule 19(1)(C)(ii), a convict who is

sentenced to suffer imprisonment for seven years or more, can be

released on emergency parole initially for a period of 45 days and

the said period stands extended periodically in a block of 30 days

each till the time the notifcation issued by the State Government

under the Epidemic Diseases Act, 1897 remains in force. The said

rule further provides that the convicted prisoners shall report to

the concerned police station, within whose jurisdiction they are

residing, once every 30 days. Thus, it becomes abundantly clear

that the condition of attendance at the jurisdictional police station

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fows from the rule itself.

15. In the light of aforesaid regime under Rules 1959, the

submissions on behalf of the petitioner now fall for consideration.

16. The frst challenge on behalf of the petitioner that there was

no order which precedes the intimation letter dated 17 th February

2021 (and which in itself cannot be said to be an order of

revocation) does not seem to be well grounded in facts. In fact, the

said intimation letter dated 17th February 2021, makes reference to

the revocation order dated 16 th February 2021, which came to be

annexed to the affdavit in reply (as Annexure III). From a bare

perusal thereof, it appears that the driving force for the order of

revocation was, in turn, the communication dated 16 th February

2021 by Ambarnath Police to the Superintendent, Prison. Upon

perusal of the said communication from Ambarnath Police, the

respondent No.2 arrived at a conclusion that the petitioner had not

adhered to the conditions, subject to which he was released on

Covid-19 emergency parole, and, thus, proceeded to revoke the said

order of release on parole.

17. The second limb of the submission of Mr. Gawankar was that

no opportunity of hearing was provided to the petitioner before the

order of revocation was passed. In the absence of such opportunity

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of hearing, the revocation falls foul of fundamental principles of

natural justice. It would be an arbitrary exercise of powers by the

authorities, in the event, a legitimate release on parole is permitted

to be revoked by the authority at its whim and caprice without

assigning any reason or providing a semblance of hearing, urged

Mr. Gawankar.

18. The aforesaid submission is required to be appreciated in the

backdrop of the fact that the condition to mark attendance at the

jurisdictional police station once every 30 days, is prescribed by

the very rule, under which a prisoner is entitled to be released on

emergency parole. Its purpose cannot be over-emphasized. The

jurisdictional police station, in the case at hand, reported that the

petitioner did not attend the police station for the preceding 3 to 4

months. Pertinently, the petitioner did not approach the Court with

a case that the jurisdictional police station refused to mark his

presence and thus the breach of condition attributed to the

petitioner was malafde. The said stand was sought to be taken in

the affdavit in rejoinder. Nonetheless, the stand is bereft of

particulars. The affdavit in rejoinder does not specify the dates on

which the petitioner attended the police station and yet the

concerned offcer declined to mark the presence of the petitioner

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thereat.

19. The principles of natural justice, it is trite, cannot be resorted

to in the abstract. Nor can those principles be imported in all

situations. A proftable reference in this context can be made to the

judgment of the Supreme Court in the case of A.S. Motors Private

. The observations of the

Supreme Court are extracted below :

"8. Rules of natural justice, it is by now fairly well settled, are not rigid, immutable or embodied rules that may be capable of being put in straitjacket nor have the same been so evolved as to apply universally to all kind of domestic tribunals and enquiries. What the courts in essence look for in every case where violation of the principles of natural justice is alleged is whether the affected party was given reasonable opportunity to present its case and whether the administrative authority had acted fairly, impartially and reasonably. The doctrine of audi alteram partem is thus aimed at striking at arbitrariness and want of fair play. Judicial pronouncements on the subject have, therefore, recognised that the demands of natural justice may be different in different situations depending upon not only the facts and circumstances of each case but also on the powers and composition of the tribunal and the rules and regulations under which it functions. A court examining a complaint based on violation of rules of natural justice is entitled to see whether the aggrieved party had indeed suffered any prejudice on account of such violation. To that extent there has been a shift from the earlier thought that even a technical infringement of the rules is suffcient to vitiate the action. Judicial pronouncements on the subject are legion. We may refer to only some of the decisions on the subject which should in our opinion suffce.

9. In Suresh Koshy George v. University of Kerala AIR 1969 SC 198, this Court while examining the content and the sweep of the rules approved the view expressed in Russell v. Duke of Norfolk 1949 1 All ER

1 (2013) 10 SCC 114.

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109 CA in the following words: (Suresh Koshy case, AIR p. 201, paras 7-8) :

"7. ... The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions."

8 In Russell v. Duke of Norfolk, All ER at p. 118 D-F, Tucker, L.J., observed :

'There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirement of natural justice must depend on the circumstances of the case, the nature of inquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the defnitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case."

20. In the case at hand, the condition, subject to which, the

petitioner was released on parole, was such that the petitioner

could perform the same by a positive act. In such a situation,

where the petitioner allegedly did not mark his attendance at the

jurisdictional police station and there was resultant breach, the

petitioner cannot insist for an opportunity of hearing and

determination of the said issue on facts. It was for the petitioner to

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offer an explanation either for the non-appearance or attribute

malafde to the authorities, at the earliest possible opportunity. In

the absence thereof, we fnd it rather diffcult to accede to the

submission of Mr. Gawankar that in the absence of opportunity of

hearing, where there is a clear breach of condition, subject to

which the prisoner is released, the authority is denuded of power

to revoke the parole.

21. We fnd substance in the submission of Mr. Yagnik, the

learned APP that the act of the petitioner joining a political outft,

while he was released on parole, cannot be said to be totally

innocuous. In a given situation, the fact that a convict, while being

on parole, joins a political party, may not by itself, amount to an

act which is in breach of the condition to maintain peace and be of

good behaviour. However, if there are attendant circumstances

which render such political activity prone to disturb public peace

and tranquility, the authorities would be justifed in being alarmed

by such activity. In the case at hand, the communication by

Ambarnath Police was to the effect that the elections to Municipal

Council were in the offng and in the elections to the said Council,

in the past, there were incidents of violence. In that backdrop, the

jurisdictional police thought it appropriate to report the

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omission and conduct of the petitioner to respondent No.2. In the

circumstances of the case, the said aspect appears to be a relevant

consideration.

22. In any event, we cannot loose sight of the substance of the

matter. The petitioner was released on parole on 5th June 2020.

The petitioner surrendered back to prison on 24 th May 2021. For

almost one year, the petitioner was on Covid-19 emergency parole.

It is imperative to note that the situation which arose on account of

Covid-19 Pandemic has eased of. The threat of spread of contagion

has subsided. At this juncture, we do not fnd any justifcation for

reviving the order of release of the petitioner on Covid-19 parole.

23. As regards the exigency of the situation, which arose on

account of the ill health of the wife of the petitioner, in our view,

the same can be addressed by giving liberty to the petitioner to

apply for regular parole on the said count. We are, thus, inclined to

dismiss the petition with the said liberty.

24. Hence, the following order :

O RDER

The petition stands dismissed.

The petitioner is at liberty to make an application for regular

parole.

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In the event, the petitioner makes an application for regular

parole, the Competent Authority shall decide the same as

expeditiously as possible and preferably within a period of three

weeks from the date of receipt of such application.

Rule stands discharged.

[ N.J. JAMADAR, J. ]                           [ S.S. SHINDE, J.]




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