Arun S/O Gulab Gawli vs Deputy Inspector General ...
2022 Latest Caselaw 11524 Bom

                               1



        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH, NAGPUR.


            CRIMINAL WRIT PETITION NO. 782/2022


        Arun s/o Gulab Gawli,
        C-8535, aged about 66 years,
        R/o. Gitai Society, Dagdi Chawl,
        Baburao Jagtap Marg, Byculla (W),
        Mumbai : 11.
        Presently Nagpur Central Prison,
        Nagpur.
                                              ... PETITIONER

                            VERSUS

   1.   Deputy Inspector General
        (Prisons) (East) Nagpur.

   2.   The Superintendent Central
        Prison, Nagpur.



                                             ... RESPONDENTS
_____________________________________________________________
       Mr. M. N. Ali, Advocate with Shahurk Shah, Advocate for
       petitioner.
       Mr. S. M. Ukey, APP for respondent Nos. 1 & 2.
______________________________________________________________

                CORAM                : VINAY JOSHI AND
                                       MRS. VRUSHALI V. JOSHI, JJ.

DATE OF JUDGMENT : 14/11/2022.

ORAL JUDGMENT (PER : VINAY JOSHI, J.)

RULE. Rule made returnable forthwith.

2. Heard finally by consent of both the parties.

3. The petitioner raises a challenge to the order dated

07.11.2022 passed by the Deputy Inspector General (Prisons) (East)

Nagpur, whereby the petitioner's urge for special parole has been

allowed with a rider. The authority limited the duration of special

parole for four days including the traveling period in Police Escort with

certain amount of cash security and surety. The challenge is to the

limited duration of parole period along with the condition of Police

Escort and the amount of heavy surety.

4. The petitioner has applied for special parole in terms of

Rule 19(2) of the Maharashtra Prison (Mumbai Furlough and Parole)

Rules 1959 ('Rules of 1959') for the marriage of his son Yogesh

proposed to be held on 17.11.2022 at Mumbai. The competent

authority has called the Police Report and upon considering the entire

material has conditionally allowed special parole for the period of four

days including traveling period with Police Escort and Security.

5. The petitioner is convicted for the offence punishable under

Sections 302, 120-B of the Indian Penal Code read with Section 3(1)(i),

(i)(ii), 3(2), 3(4) of the Maharashtra Control of Organized Crime Act

('MCOC'). It is petitioner's contention that till date, he has undergone

imprisonment for approximately 14 years and whenever he was

released on parole or furlough, on each and every occasion he has

surrendered on due date without delay. Moreover, during his leave

period, he had not committed any anti-social activity nor any offence

has been registered against him. It is submitted that till date, on 12

occasion, petitioner was released on either parole or furlough, and each

time, he has abided by the conditions imposed therein and had not

committed breach of peace. To substantiate said contention, the

petitioner has produced order of this Court dated 08.04.2021 passed in

Criminal Writ Petition No. 258/2021, wherein a chart indicating the

petitioner's prior release on furlough or parole has been incorporated

with specific period and dates. The petitioner has referred few other

orders, by which he was released by this Court on parole for the reason

of medical emergency and marriage.

6. The principal grievance is about grant of parole for only

four days that too in Police Escort with heavy surety. It is straneously

argued that the impugned order does not indicate reasons as to why

the period of special parole has been curtailed from 15 days to 04 days

only. Moreover, there are no reasons to indicate necessity to impose

condition of Police Escort. In this regard, the petitioner relied on the

decision of this Court dated 18.02.2019 in case of Dilip S/o. Sopan

Pawar Vs. The State of Maharashtra and another (Criminal Writ

Petition No. 354/2019 with another connected matter), wherein this

Court has emphasized about the necessity of reasons.

7. Upon notice of this Court, the respondent-State filed reply

justifying impugned order. It is stated that in view of adverse Police

Report and the petitioner being involved in number of criminal

activities, the conditions imposed by the authority are appropriate.

Moreover, it is submitted that in view of amended Rule 19(2) of the

Rules of 1959, the special parole is for the period of four days including

traveling period with provision of extension of next 4 days.

8. Moreover, the learned APP has justified the order of special

parole in the Police Escort by pointing towards the report submitted by

the Additional Commissioner of Police. It is submitted that as per

report, the petitioner has rivalry with other gangs indulging into

criminal activities, therefore, there is threat to his life. He would

submit that the authority was satisfied about the threat perception of

the petitioner and therefore, the order of Police Escort is justifiable. On

the point of cash security, it has been submitted that in order to vouch

the timely return, the quantum of surety has been fixed which is

appropriate.

9. We have carefully considered the revival submissions and

impugned order along with amended notification dated 10.02.2022 of

Rule 19(2) of the Rules of 1959 which reads as below:-

"19(2) Special Parole - (A) All convicted prisoners except foreigner and death sentenced prisoners may be eligible for special parole of four days, including the traveling time, for marriage of son/daughter/siblings. All the terms and conditions, except the period for which it is granted, shall mutatis-mutandis apply for the grant of such special parole including all the proviso applicable to the emergency parole, only with the difference that, instead of Superintendent of Prison, any request for grant of such special parole will be considered by the Deputy Inspector General of Prisons.

(B) The initial period of four days of special parole may be extended by a further additional period of maximum upto four days, total being not more than maximum eight days, by a written order containing just, sufficient, cogent and self- explanatory reasons, passed by the Deputy Inspector General of Prisons, before expiry of initial period of four days. No extension shall be granted to such special parole in any case and under any circumstances beyond the period of total eight days."

10. The learned counsel appearing for the petitioner has fairly

conceded the legal position about the restricted time span under

amended Rule 19(2) of the Rules of 1959 as per Government

Notification dated 10.02.2022. He has waived his submission claiming

15 days parole by conceding that as per amended Rule 19(2) of the

Rules 1959, special parole for the purpose of marriage would be for

four days only with provision of extension. In short, he has waived the

challenge raised to the period of special parole.

11. On the point of imposition of condition of Police Escort, it

has been submitted that, in past on all 12 occasions, no such stringent

condition was imposed. He has submitted that on each and every

occasion, the same reasons were quoted by the reporting authority,

however, the Police Escort was not ordered. We have given our

thoughtful consideration to the report of concerned Assistant

Commissioner of Police ('ACP') along with the order impugned herein.

Though it has been mentioned in the report that total 46 offences have

been registered, however all the offences were prior to the

incarceration. The reason of life threat has not weighed to the

authority on earlier occasion. No special reasons have been quoted as

to this time what are the compelling circumstances which have weighed

to the authority in anticipating life threat to the petitioner. Moreover,

the impugned order is bereft of reasons as to why the Police Escort is

essential. Concededly, on all earlier occasions, no such condition was

imposed and therefore, we find no justification in imposing the

condition of providing Police Escort which needs to be waived.

12. As regards to the quantum of security, the authority has

directed the petitioner to deposit cash security of Rs. 5 lakhs along with

surety of equal amount. Similarly, the said order is not backing with

any reason. The learned counsel appearing for the petitioner would

submit that barring isolated instance all the time the security amount

was near about 15,000/- only. The learned APP has pointed out that

once the petitioner was directed to deposit cash surety of Rs. 2 lakhs as

well as security of the equal amount. In our view, imposition of heavy

security would ultimately amounts to deprivation of availing the parole

which if he is otherwise entitled. Generally, we do not interfere into

the discretion of the authority in quantifying the amount of cash

surety/security. However, in view of the quantum of security fixed by

the authority, we feel it necessary to quantify the same so as to avoid

further round of litigation.

13. In view of above, petition is partly allowed. The impugned

order is modified to the extent of setting aside the condition of

providing Police Escort. The amount of security is altered to the extent

of furnishing cash security of Rs. 1 lakh with surety in the like amount.

14. Petition is disposed of in above terms.

15. The petitioner's learned counsel has submitted that since

the petitioner is required to go to Mumbai, considering journey period,

he requires extension of four days. In this regard he urged to direct the

authority to decide the extension application within stipulated period.

It is for the authority to take call. We hope and trust that the authority

will act in accordance with law in case of filing of extension

application.

                         (MRS. VRUSHALI V. JOSHI, J.)           (VINAY JOSHI, J.)

           Gohane

            Digitally
            signed by
            JITENDRA
JITENDRA    BHARAT
BHARAT      GOHANE
GOHANE      Date:
            2022.11.14
            18:23:19
            +0530