Bombay High Court
Mirza Himayat Baig S/O Mirza Inayat Baig vs State Of Maharashtra And Ors on 3 September, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:35548-DB
(10)WPST-17205-2024.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO.17205 OF 2024
Mirza Himayat Baig s/o Mirza Inayat Baig ] .. Petitioner
vs.
State of Maharashtra & Ors. ] .. Respondents
None for the petitioner.
Dr.Ashvini A. Takalkar, APP for the State.
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ
DATE : 3rd SEPTEMBER, 2024.
P.C.
1] None for the Petitioner.
2] In the wake of urgency expressed in the Petition, we have taken
it for hearing, with the assistance of the learned APP.
3] The Prisons (Bombay Parole and Furlough) Rules, 1959, in Rule
3 and 4 has prescribed the eligibility for availing furlough by the
convicted prisoners.
Rule 19 of the said Rules is a provision providing for release of a
prisoner on Parole, which cover; (i) Emergency Parole (ii) Special
Parole (iii) Regular Parole.
Rule 4 as well as Rule 19 underwent amendment by notification
dated 16.04.2018, and as far as Rule 19 is concerned, the illness of the
RAJSHREE by RAJSHREE
KISHOR Date:
MORE 2024.09.04
(10)WPST-17205-2024.doc
near one including father, mother now fall in the category of Regular
Parole.
The amended Rule prescribe that all prisoners eligible for
Furlough shall be eligible for Regular Parole, which can be granted on
the ground of serious illness of father/mother/ spouse/son/daughter and
for other reasons mentioned therein.
4] On account of the illness of his mother, the petitioner before us
Mirza Himayat Baig S/o Mirza Inayat Baig preferred an application for
being released on Parole at least for 45 days, by specifically pleading
that, his mother is seriously ill and counting her last breath on bed, and
since last couple of month her condition is deteriorated.
The petitioner filed an application for Parole purely on medical
grounds, on 11.04.2024, which was accompanied with a medical
certificate issued by the Government hospital and private hospital.
It is also specifically pleaded that upon such application being
made, the condition of his mother was ascertained and confirmed and
reported to the Jail Authority and alongwith an affidavit filed by the
elder brother of the petitioner, who was ready to stand surety for his
Parole, it was forwarded for consideration.
The petitioner kept waiting for decision on his parole application,
but it was only on 31.07.2024, that is after lapse of almost three
months, he was communicated the decision by the Divisional
Commissioner, Nashik dated 31.07.2024, informing that in the wake of
Rule 13 of The Prisons (Bombay Parole and Furlough ) Rules, 1959, a
Convict who is sentenced for offences such as terrorist activities,
sedation, kidnapping for ransom is not considered eligible for being
released on furlough and since a person who is found to be entitled for
furlough is the one who is entitled for his release on regular parole, by
(10)WPST-17205-2024.doc
applying the said analogy, his request was declined.
5] Alongwith the Writ Petition, a copy of the Judgment delivered by
this Court in a Confirmation Case preferred by the State of Maharashtra
as well as an Appeal preferred by the Convict, who has been
sentenced to death, is annexed.
The Judgment dated 17.03.2016 has dismissed the reference
made by the Additional Sessions Judge, Pune for confirmation of death
penalty.
As far as the Appeal filed by the Appellant Mirza Himayat Baig @
Ahmed Baig Inayat is concerned, it is partly allowed by setting aside
his conviction under all the provisions of Unlawful Activities (Prevention)
Act, 1967. Similarly he is acquitted of the offence under Section 302,
307, 435 read with 120-B of the IPC alongwith Section 153-A of the
IPC and his conviction under Section 4(a) and (b) of the Explosive
Substances Act, 1908 is also quashed and set aside and he stand
acquitted of all the charges levelled against him in that regards.
His conviction under Section 474 of the IPC alongwith Section
5(b) of the Explosive Substances Act, 1908 is confirmed alongwith the
sentence imposed upon him by the trial Judge.
6] Surprisingly, the Divisional Commissioner, while rejecting the
request of the Petitioner, has failed to take into consideration this
Judgment delivered in an Appeal preferred by the Petitioner and has
wrongly proceeded on footing that his release is barred by Rule 13, as
though he was convicted under the provisions of Unlawful Activities
(Prevention) Act, 1967, by the order of the High Court he stand
acquitted of the said charges, in 2016 itself.
The learned APP Dr.Takalkar, on instructions inform that an
(10)WPST-17205-2024.doc
Appeal has been preferred against this Judgment to the Supreme
Court, which has been admitted.
7] Even considering the aforesaid fact, as on today, there is no
ground for refusing the release of the Petitioner/convict on parole by
taking recourse to Rule 13 of the Furlough Rules, which stand
amended in the year 2019.
We find the impugned order totally unjustified and though we
were of the view that heavy cost shall be imposed upon the Officer
taking such a view and denying a valuable right to the prisoner on a
flimsy ground, particularly when on account of illness of his mother, he
sought his release on parole and the fact of her illness was also
ascertained by carrying enquiry, but since the learned APP earnestly
pleaded before us that the mistake was bonafide as copy of the
Judgment of the High Court was not placed before the Divisional
Commissioner.
We can only hope and trust that the high ranking officers will be
conscious of the responsibility cast upon them and particularly in
respect of the prisoners/convict who are incarcerated and their rights
are not tramped in a casual fashion, as is attempted to be done in the
present case.
By setting aside the order dated 31.07.2024, we allow the Writ
Petition by directing the Competent Authority to consider application
afresh, on considering the aspect of his acquittal from UAPA
proceedings.
Let this decision be taken within a period of one week from today.
[MANJUSHA DESHPANDE, J] [BHARATI DANGRE, J]
