Bombay High Court
Wasim Khan Azim Khan vs The Superintendent Central ... on 9 June, 2023
Bench: Vinay Joshi, Valmiki Sa Menezes
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 376 OF 2023
Wasim Khan Azim Khan, Aged about 40
years, Convict No.C/9405, presently at
Central Prison, Nagpur
... PETITIONER
VERSUS
The Superintendent Central Prison,
Nagpur.
... RESPONDENT
_____________________________________________________________
Shri M.N. Ali, Advocate for the petitioner.
Smt. Nandita Tripathi, A.P.P. for the respondent/State.
______________________________________________________________
CORAM : VINAY JOSHI AND VALMIKI SA MENEZES, JJ.
DATED : 09.06.2023.
JUDGMENT : (Per : Vinay Joshi, J.)
RULE. Rule made returnable forthwith. By consent, the
petition is taken up for final disposal.
2. The petitioner has applied for grant of emergency parole on
account of death of his mother for the period of 14 days. Initially,
emergency parole was granted vide order dated 06.05.2023 for the
period of 3 days with police escort. Later on, the said order was
modified by which emergency parole for 1 day was granted without
police escort charges. Being aggrieved by these orders, the petitioner
has approached to this Court by stating that the Authority fail in serious
error in denying the emergency parole for the period of 14 days as has
been claimed. It is submitted that Rule 19(1)(A) of the Prisons
(Bombay Furlough and Parole) Rules, 1959 (the Rules of 1959)
authorizes the Authority to grant emergency parole, initially for 7 days
with the provision of extension for 7 days. However, the Authority
without assigning any reason, denied the parole for 14 days. Moreover,
it is argued that without assigned any reason, the petitioner has been
directed to avail emergency parole in police escort.
3. The respondent/State resisted the petition by filing the
affidavit in reply. It is contended that the petitioner has committed
serious offence and is sentenced to suffer imprisonment for lief till the
reminder of natural life. The Authority has considered the reason for
emergency parole and granted the same for three days to meet the
purpose. It is stated that considering the poor financial condition, the
escort charges have been waived and therefore, no interference is
called.
4. It is not in dispute that the petitioner has been convicted in
Sessions Case No.22 of 2015 for various offences including offence
punishable under Section 376D of the Indian Penal Code and sentenced
to suffer imprisonment for life till the reminder of natural life. There is
no dispute that the petitioner's mother died on 06.05.2023 and for the
reason of attending the death rituals, the petitioner has applied for
emergency parole.
5. Learned Counsel appearing for the petitioner would submit
that seriousness of crime and the extent of punishment except death is
no criteria to curtail the period of emergency parole as specified under
Rule 19(1)(A) of the Rules of 1959. Moreover, the Authority has not
assigned reason for imposing restriction of police escort. In support of
said contention the petitioner heavily relied on the decision of this
Court in case of Dilip s/o Sopan Pawar vs. State of Maharashtra and
anr. (Criminal Writ Petition No.354 of 2019) dated 18.02.2019.
Particularly, our attention has been invited to paragraph 7 of the said
decision which reads as below :
"Two issues arise in these Petitions. We
have already quoted clause (A) of Sub-Rule (1) of
Rule 19 of the said Rules of 1959. If this provision is
considered in the context of Sub-Rule (2) of Rule 19
which deals with the regular parole, even if a
prisoner attracts a disqualification for grant of
furlough as per Rule 4 of the said Rules of 1959, on
that ground, emergency parole cannot be denied.
Sub-Rule (2) of Rule 19 specifically states that all the
prisoners who are eligible to grant of furlough, shall
be eligible for the regular parole. Thus, if a prisoner is
dis-entitled to furlough by virtue of the
disqualifications laid down in Rule 4, he is dis-entitled
to regular parole under Sub-Rule (2) of Rule 19. Such
a condition is not incorporated in Sub-Rule (1) of Rule
19 which deals with the emergency parole."
6. The said position has not been denied by the learned A.P.P.
We can quite see that except the rider of convict being foreigner and
death sentence has been imposed, no other restriction has been
imposed for grant of emergency parole. The restrictions imposed for
grant of regular parole would not apply for grant of emergency parole
as observed by this Court in above decision, and therefore, the ground
about seriousness of offence, is insignificant.
7. On the point of period of emergency parole, it has been
submitted that without assigning any reason, the Authority has
curtailed the period to one day from 14 days provided by the Rules,
1959. In above referred decision, this Court took a view that when the
power are vested with the Authority to grant emergency parole for 14
days, unless reasons are recorded, the period cannot be curtailed.
Moreover, it is observed that the Authority must state the reasons for
providing the police escort.
8. We have examined the impugned orders, wherein we are
unable to find a single reason about curtailment the period or grant of
police escort. Moreover, the reply affidavit states that the police
verification report was in favour of the petitioner - convict. In absence
of reasons, we find no justification for curtailment of parole period and
the order of police escort. In view of amended Rule 19(1)(A) of the
Rules 1959, the emergency parole shall be initially for 7 days, which
can be extended by further 7 days. Thus, the petitioner is entitled for
the emergency parole of 7 days without extension.
9. It is the petitioner's contention that the death rituals are
fixed from 11.06.2023 and thus, there is no time to direct the Authority
to reconsider the application, since there are two days holiday from
tomorrow.
10. Considering the above situation, we hereby passed the
following order :
(a) The petition is allowed and disposed of.
(b) We hereby modified the orders dated 06.05.2023 and
26.05.2023 passed by the concerned Authority.
(c) We direct that the petitioner Wasim Khan Azim Khan
shall be released on emergency parole for the period of
7 days with a provision of extension, to be decided at
the discretion of the Authority.
11. Rule is made absolute. No order as to costs.
12. Registry of this Court shall communicate this order
immediately to the respondent.
(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)
Trupti
