Bombay High Court
Shoyab Mehtab Ali vs Divisional Commissioner ... on 21 February, 2023
Bench: Vinay Joshi, Valmiki Sa Menezes
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 772 OF 2021.
Shoyab Mehtab Ali,
Aged 26 years, resident of
Village Negla Kutula, Post
Iqbalpur, Tahsil Rookee,
District Haidwar (Uttarakhand)
(C/5490 Central Prison, Amravati). ... PETITIONER.
VERSUS
1.Divisional Commissioner,
Amravati Division, Amravati.
2.Superintendent of Jail,
Central Prison, Amravati.. ... RESPONDENTS.
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Mr. S.R. Jaiswal, Advocate for the Petitioner.
Shri M.J. Khan, A.P.P. for Respondents.
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CORAM : VINAY JOSHI AND
VALMIKI SA MENEZES, JJ.
CLOSED FOR JUDGMENT ON : 09.02.2023.
JUDGMENT PRONOUNCED ON : 21.02.2023.
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JUDGMENT (PER VINAY JOSHI, J.) :
Considering the controversy involved in the matter, and
by consent of the learned Counsel appearing for the respective
parties, Criminal Writ Petition is taken up for final disposal at the
stage of admission by issuing Rule, making the same returnable
forthwith.
2. The petitioner has challenged the order dated 14.07.2020
passed by respondent no.1 Divisional Commissioner, Amravati
Division, Amravati rejecting grant of regular parole in terms of Rule
19[3] of the Maharashtra Prison (Parole and Furlough) Rules. The
petitioner was convicted for the offence punishable under Sections
302 and 397 of the Indian Penal Code (I.P.C.). He was ordered to
undergo imprisonment for life for the offence punishable under
Section 302 of the I.P.C. and to undergo rigorous imprisonment for
10 years for the offence punishable under Section 397 of the I.P.C.
3. The petitioner has sought regular parole on account of
serious illness of his father. In support of said contention he has
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produced medical certificate. The petitioner is in jail from
30.06.2013, and thus according to him, including the period of set
off and remission, he has undergone sentence for 10 years, therefore
eligible for grant of parole leave.
4. Respondent no.1 Authority has rejected parole leave on
the ground of adverse police report and the petitioner has not
completed 10 years of imprisonment, meaning thereby he could not
meet the eligibility criteria for regular parole.
5. The State resisted the petition by filing reply affidavit.
The main resistance is on the ground of in-eligibility of the
petitioner on account of non-fulfillment of the eligibility criteria in
terms of Rule 2 [4] of the Prisons (Bombay Furlough and Parole)
Rules, 1959 (hereinafter referred to as "the Rules" for short). It has
been submitted that a person convicted for the offence punishable
under Section 392 to 402 have been exempted from the eligibility
criteria, provided that they have not completed the stipulated
sentence for respective Sections. In short it has been submitted that
since the petitioner has not completed 10 years of actual
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imprisonment which was imposed on him for the offence punishable
under Section 397 of the Indian Penal Code, he is not eligible.
6. On the other hand, the learned Counsel for the petitioner
would contend that the petitioner has already completed 10 years of
imprisonment including the period of set off and remission. He has
attracted our attention to paragraph no.2 of the affidavit-in-reply
wherein reference has been made about certificate issued by the jail
authorities stating that the petitioner has undergone 10 years 1
month and 26 days imprisonment including set off and remission
earned by the petitioner.
7. The learned A.P.P. would submit that the period of set off
and remission can not be considered for calculation, as the said
aspect is to be considered at the time of actual release. In other
words, he would submit that the actual period of incarceration shall
be considered for the purpose of Rule 4[2] of the Rules.
8. In resistance the petitioner would submit that he was
sentenced for 10 years imprisonment for the offence punishable
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under Section 397 of the Indian Penal Code. Had it been the fact
that he was only convicted under said section, then by the time he
would have been released, and therefore, the period is to be
calculated by including set off and remission. In support of said
contention he has relied on the decision of this Court in case of
Gorakh @ Baba Patole .vrs. Government of Maharashtra - 1993 [2]
Mh.L.J. 1423.
9. As against this, the learned A.P.P. by placing reliance on
the decision of this Court in case of Jalindarsingh Ajitsingh
Kalyani .vrs. The State of Maharashtra - 2017 All MR (Cri) 4373, to
state that Rule 4[2] of the Rules would be attracted even if the
convict has undergone imprisonment under said Sections. Likewise
he relied on the decision of this Court in case of Kamal Mayaram
Kanojiya .vrs. The State of Maharashtra and others - 2013 All MR
(Cri) 983, wherein it has been held that due to bar created under
Rule 4[2], the person convicted for commission of offence under
Sections 392 to 402 is not eligible for grant of furlough. Moreover,
the learned A.P.P. has relied on the decision of Gujarat High Court in
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case of Juvansingh Lakhubhai Jadeja .vrs. State of Gujarat - 1972
LawSuit(Guj) 32, to state that the constitutional validity of Rule 4[2]
of the Rules has been upheld.
10. So far as submission regarding validity of Rule 4[2] is
concerned, there is no dispute. In above referred case of Kamal
Mayaram Kanojiya, it has been simply held that Rule 4[2] debars a
convict from seeking furlough in case of conviction under Section
392 to 402 of the Indian Penal Code. We have no doubt in our mind
about the validity and applicability of Rule 4[2] of the Rules.
However, the peculiar question falls for consideration is - Whether
after undergoing sentence awarded for Section 397, can the prisoner
still be debarred on the ground that his conviction falls within the
rigor of Rule 4[2] of the Rules.
11. In above referred case of Gorakh Patole, the same issue
fell for consideration before this Court. The then accused was
convicted for the offence punishable under Sections 397 and 302 of
the Indian Penal Code. The accused was sentenced to undergo
imprisonment for a period of 7 years for the offence punishable
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under Section 397, and to undergo imprisonment for life for the
offence punishable under Section 302 of the Indian Penal Code.
These two sentences have been ordered to run concurrently. After
completing 7 years of imprisonment the convict applied for grant of
furlough. In that situation this Court has expressed that since the
convict has undergone punishment imposed for Section 397 of the
Code, the bar would not apply. The relevant portion of paragraph
no.3 of the decision reads as below :
"...... On undergoing the imprisonment of seven
years, the petitioner would cease to be a convict
under section 397, Indian Penal Code. Had he
been convicted only of offence under Section 397,
he would have been a free bird. His continuation
in the portals of jail is because of sentence under
Section 302, Indian Penal Code. He does not
continue to be a prisoner falling under category
[2] of Rule 4 only because of concurrent nature of
the other sentence undergoing which does not
disqualify him from furlough leave. Contrary
interpretation of Rule 4[2] would be against the
letter as well as spirit of the Rules."
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12. Though the learned A.P.P. has relied on a contrary view
taken by this Court in above referred case of Jalindarsingh Ajitsingh
Kalyani, however, the position has now been changed. The said
decision was rendered in the year 2017 interpreting Rule 4[2] of the
Rules, which reads as below :
"4[2] Prisoners convicted for offence under
Section 392 to 402 [both inclusive] of the Indian
Penal Code."
The said Rule 4[2] has been substituted by notification dated
16.04.2018, which reads as below :
"4[2] Prisoners convicted for offence under
Section 392 to 402 [both inclusive] of the Indian
Penal Code [Prisoners may be eligible for furlough
after completion of stipulated sentence in the
respective Section]."
Thus, the substituted Rule carves out an exception that on
completion of stipulated sentence for respective section, the prisoner
would be eligible for grant of furlough leave. The said substitution
was post decision in case of Jalindarsingh Ajitsingh Kalyani [supra],
and therefore, the said decision would not help the State in any
manner.
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13. The learned A.P.P. would submit that though substituted
Rule permits release on furlough after completion of sentence
imposed by Section 397 of the Code, however, he would submit that
the period of set off and remission cannot be calculated. According
to him the said period shall be calculated at the time of actual
release and not earlier than that. In other words he would submit
that the prisoner has undergone actual imprisonment for 9 years, 3
months and 10 days, and therefore, presently he is not eligible in
terms of Rule 4[2] of the Rules.
14. We are not in agreement with the said submission since
the analogy applied by this Court in above referred decision of
Gorakh Patole would squarely apply in the situation at hand. As per
the reply-affidavit, the prisoner has undergone 10 years 1 month and
26 days of imprisonment, including set off and remission earned by
him. In above decision, it has been observed that after completion of
period of imprisonment imposed for the offence of Section 397 of the
Code, the prisoner would cease to be a convict under Section 397 of
the Code, and would have been freed if not convicted under Section
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302 of the Code. Herein also if the prisoner was convicted only for
the offence under Section 397 of the Code, then certainly the period
of set off and remission would have been calculated on which he
would have been released. Only because the prisoner is sentenced
for life imprisonment for Section 302 of the Code, he is in jail.
Therefore, while applying Rule 4[2] of the Rules, one has to
calculate the period by including the period of set off and remission
earned by the petitioner. Therefore, as admittedly the petitioner has
undergone the entire period awarded for the offence punishable
under Section 397 of the Code, he is eligible for furlough leave.
15. The Authority has also rejected petitioners' urge on the
ground that there is adverse police report against the petitioner. It is
reflected in the impugned order that the petitioner is resident of
Uttrakhand State, aged 26 years, and therefore, after release there is
every possibility of his abscondence. We do not find any logic that
only because the petitioner is a young fellow, he would abscond.
There is no regional restriction to consider petitioners case, if
otherwise found suitable.
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16. The learned Counsel for the petitioner has relied on the
decision of this Court in case of Kisan Soma Rathod vrs. The State of
Maharashtra and another - 2017 [5] Mh.L.J. (Cri) 796, to contend
that mere adverse report, without any supporting material, is not
worth to be considered. No other adverse circumstances have been
brought to our notice so as to deny petitioner's right. It has been
submitted that during last 10 years not on a single occasion,
petitioner was released on either furlough or parole. The Supreme
Court in case of Asfaq .vrs. State of Rajasthan and others - 2017 AIR
[SC] 4986, has emphasized the necessity of grant of parole and
furlough with an object to afford an opportunity to the prisoner to
solve their family problems and to enable them to maintain links
with the society.
17. In conclusion, since the petitioner has already undergone
the imprisonment of 10 years, which was imposed for the offence
punishable under Section 397 of the Code, he would come out of the
rigor of Rule 4[2] of the Rules, and thus, is entitled for regular
parole as prayed for. We may state that the reason of fathers illness
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has not been disputed, either by the police or State. In view of that
the impugned order date 14.07.2021 passed by the Divisional
Commissioner, Amravati Division, Amravati is unsustainable in law
and therefore, the same is quashed and set aside. We hold that the
petitioner is entitled to regular parole for the period as may be
permissible in law. The Authority shall release the petitioner on
regular parole by imposing usual terms and conditions as he may
deem fit. The authority shall pass appropriate orders within a period
of two weeks from the receipt of this order.
18. Criminal Writ Petition is allowed and disposed of
accordingly. Rule is made absolute in the aforesaid terms with no
order as to costs.
JUDGE JUDGE
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Signed By:RAKESH GANESHLAL
DHURIYA
Private Secretary
High Court of Bombay, at Nagpur
Signing Date:22.02.2023 10:40
