Bombay High Court
Asghar S/O Yusuf Mukaddam vs State Of Mah. Thr. Its Principal ... on 31 March, 2022
Bench: V.M. Deshpande, Amit B. Borkar
1 Cr.WP.55.22-J
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 55 OF 2022
Asghar S/o. Yusuf Mukaddam,
Age : 59 years, Occ.: Prisoner
Convict No. C-8552,
At present lodged in Central Prison,
Nagpur as convict No.C-8552. ....PETITIONER
---- VERSUS ----
1. The State of Maharashtra,
Through its Principal Secretary,
Home Department,
Mantralaya, Mumbai - 32.
2. The Divisional Commissioner, Nagpur.
Office at Commissioner Office, Nagpur.
3. The Deputy Inspector General of Police
(Prison), East Division,
Central Prison, Nagpur,
Nagpur.
4. The Superintendent of Prison,
Central Prison, Nagpur,
Wardha Road, Nagpur. .... RESPONDENTS.
_________________________________________________________________________________________________________________________________
Mr. M. M. Chaudhari, Advocate for the Petitioner.
Mr. T. A. Mirza, A.P.P. for the Respondents/State.
_________________________________________________________________________________________________________________________________
CORAM : V. M. DESHPANDE AND
AMIT BORKAR, JJ.
DATE : 31.03.2022.
JUDGMENT : [PER: AMIT BORKAR, J.]
1. Heard.
2. Rule.
2 Cr.WP.55.22-J
3. By this Writ Petition under article 226 of the
Constitution of India, the petitioner is challenging order dated
28.08.2020 and also letter dated 26.05.2021 issued by the
respondent No.4 refusing emergency parole to the petitioner. The
petitioner is also seeking direction against the respondents to
include the class/category of prisoners who has undergone
substantial sentence or had served half of their total sentence for
entitlement of emergency parole leave under Rule 19(1)(C) of the
Maharashtra Prisons (Mumbai Furlough and Parole) (Amended
Rules, 2020) (hereinafter referred to as "the said Rules") and to
extend the benefit of emergency parole under Rule 19(1)(C) of the
said Rules to the petitioners who had reported in time earlier while
they were released on parole or furlough.
4. The petitioner is a convict for the case famously known
as Bombay Blast Case in 1993 and was arrested on 19.03.1993 and
is in jail since the said date. The petitioner has been convicted for
following offences :
Sr. Under Section Punishment
No.
1. 3(3) of TADA Act 1987, Death Sentence with fine Rs.25,000/-
120(b) IPC
2. 3(3) of TADA Act 9 years imprisonment with fine
Rs.50,000/- i/d 1 year imprisonment.
3. 3(2)(1) of TADA Act 1987 Death Sentence with Fine of Rs.25,000/-
4. 302 r/w 34 of IPC Death Sentence with Fine of Rs.25,000/-
3 Cr.WP.55.22-J
5. 307, 34 of IPC Life imprisonment with fine Rs.50,000/-
i/d 1 year imprisonment.
6. 326 R/w 34 of IPC 10 years imprisonment with fine
Rs. 50,000/- i/d 1 year imprisonment.
7. 324, 34 of IPC 3 years imprisonment.
8. 435, 34 of IPC 7 years imprisonment with fine
Rs. 50,000/- i/d 1 year imprisonment.
9. 436, 34 of IPC 7 years imprisonment with fine
Rs. 50,000/- i/d 1 year imprisonment.
10. 3 Explo. Act 10 years imprisonment with fine
Rs.25,000/- i/d 6 months imprisonment.
11. 4(6) Explo. Act 7 years imprisonment with fine
Rs.25,000/- i/d 6 months imprisonment.
12. 9(b) of Explo. Act 2 years imprisonment.
13. 3(3) TADA Act 1987 7 years imprisonment with fine
Rs.25,000/- i/d 6 months imprisonment.
14. 3 & 4 r/w 6 Explo. Act 5 years imprisonment with fine
Rs. 25,000/- i/d 6 months imprisonment.
5. The petitioner, against the order of conviction, filed
appeal before the Hon'ble Supreme Court. The Hon'ble Supreme
Court directed that the petitioner along with other accused shall
suffer imprisonment for life until their death.
6. The petitioner on 19.08.2020 and 18.05.2021 filed an
application before the respondent No.4 for releasing him on
emergency parole under Rule 19(1)(C) for a period of 45 days. The
said application came to be rejected by impugned order dated
28.08.2020.
7. The petitioner has therefore filed present petition
challenging the said order and seeking the relief as stated herein
4 Cr.WP.55.22-J
above. This Court issued notice to the respondents and the
respondent No.4 has filed detailed reply placing reliance on the Full
Bench judgment of this Court in the Case of Pintu Uttam Sonale Vs.
State of Maharashtra reported in 2020 (6) Mh.L.J. 627. It is stated
that since the petitioner has been convicted for offences under
Special Acts, the case of the petitioner falls under the proviso of
Rule 19(1)(C)(ii) of the Rules of 1959.
8. We have carefully considered the impugned order and
in the light of Full Bench judgment of this Court, we are of the
considered view that there is no illegal exercise of power by the
respondent No.4 while rejecting the emergency parole leave
application of the petitioner. The Full Bench of this Court in Pintu
Sonale (supra) has held as under :
"19. In our opinion the language of the proviso clearly
sets out that the provisions sub-rule (C) of Rule 19(1)of
the 1959 Rules, would not apply to the prisoners
convicted for various economic offences or bank scams
or offences under some Special Acts (other than IPC)
and some of which are illustratively mentioned by
using the word "like" when the proviso refers to the
Special Acts namely MCOC, PMLA,MPID, NDPS, UAPA
etc. This illustrative reference is further qualified by use
of the word "etc" which indicates that the reference to
these Special Acts is not exhaustive. The proviso using
the words "like" and "etc" is a significant indication of
the legislative intent. The intention and object to insert
the proviso appears to be quite clear that the provisions
of the emergency parole as introduced by sub-rule (C)
would not apply to the prisoners convicted of serious
5 Cr.WP.55.22-J
offences under the different Special Acts and who fall
within the category as specified in sub-rule C(ii)."
9. In so far as the remaining prayers to include the
class/category of prisoner who has undergone the substantial
sentence or had served half of their total sentence for entitlement of
emergency parole leave under Rule 19(1)(C) of the Maharashtra
Prisons (Mumbai Furlough and Parole) (Amended Rules, 2020) is
concerned, the said relief falls within the purview of policy decision
to be taken by the State Government. The petitioner has no legal
right to seek directions against the State Government to frame a
policy in a particular manner. The writ of mandamus cannot be
issued against the State to frame policy in a particular manner. The
principle of separation of power squarely applies in such cases
where the Courts cannot direct either legislature or executive to
frame a particular policy. Even otherwise, we are satisfied that the
Sub-Rule 2 of the Rule 19(1)(C) of the said Rules was framed in the
emergence situation of Covid-19. The said Rule created rights in
favour of only those prisoners, who were covered under Rule 19(1)
(C) of the said Rules. It is within the realm of policy decision to
provide who are entitled for the benefit of the parole or furlough. A
prisoner cannot, as of right, seeks a mandamus to frame Rules in a
manner which is suitable for him.
6 Cr.WP.55.22-J
10. There is no merit in the petition. The petition is
therefore dismissed.
11. Rule is discharged. Pending application(s), if any,
stand(s) disposed of.
JUDGE JUDGE
RGurnule
Digitally signed byRANJANA
MANOJ MANDADE
Signing Date:01.04.2022
15:49
