Calcutta High Court (Appellete Side)
Noor Mohammed @ Sahabaz @ Sikendar vs The State Of West Bengal & Ors on 7 July, 2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE ARINDAM MUKHEREJEE.
W.P.A 2594 of 2019
NOOR MOHAMMED @ SAHABAZ @ SIKENDAR
VS.
THE STATE OF WEST BENGAL & ORS.
For the petitioner :: Mr. Muzahid Ahmed,
Mr. Sahid Uddin Ahmed
.....Advocates
For the State : Mr. Amitesh Banerjee, Sr. Standing
Counsel,
Mr. Suddhadev Adak
.....Advocates
Heard on 07.06.2021 and 09.06.2021
Judgment on : 7th July, 2021.
Arindam Mukherjee, J.:
1) The instant writ petition has been filed by Zahida Bashiruddin
Ansari, the elder sister and Tadbirkar of the petitioner, inter alia, for
release of the petitioner on parole for a period of 30 days to visit his
family. The said Zahida Bashiruddin Ansari is a resident of Mumbai
as stated in her affidavit verifying the writ petition. The petitioner's
family also resides at Mumbai/Maharashtra and the petitioner
intends to visit such places on being released on parole.
W.P.A . 2594 of 2019
Facts
of the case:-
a) The petitioner Noor Mohammed @ Sahabaz @ Sikendar while was
lodged at Thane Central Jail, Maharashtra in a POTA case being
No.2/2003 and other cases was produced before the learned
Additional Sessions Judge, 2nd Court, Alipore, on 17th July 2011
in connection with Sessions Trial no.14(10)/2012 corresponding
to Sessions Case no.65(1)03 that is in Khadim Abduction case
being Tiljala Police Case no.223 dated 25th July 2001. The
petitioner on being convicted in the said case by the Sessions
Judge at Alipore was sentenced to life imprisonment on 8th
December, 2017.
b) The petitioner has preferred a statutory appeal in CRA no. 144 of
2018 challenging the conviction order dated 8th December 2017.
The petitioner has also made an application for bail in
connection with appeal being CRAN 1448 of 2018. The appeal
and the application for bail in connection with appeal are
pending before this Court. The petitioner is languishing in jail
since March, 2003.
c) During pendency of the appeal, the petitioner on 27th November,
2018 made an application before the Superintendent, Central
Jail, Alipore, Kolkata, West Bengal for being released on parole
for 30 days. The main grounds cited in the said application for
release on parole are - to meet the family members as the
petitioner has not met them for long and the petitioner's mother
and brother have died in the meantime while the petitioner has
W.P.A . 2594 of 2019
been in custody since his arrest on 6th March, 2003. The
petitioner is in jail for about 17 years and more and has never
been released on parole.
d) The petitioner says that his representation and/or application for
release on parole has been kept pending without being
considered by competent authority. The petitioner, therefore, has
approached this Court by filing the instant writ petition on 30th
January, 2019.
e) The petitioner has also filed photocopy of the death certificate
and other documents to demonstrate that one of his brother's
Bashriuddin Vali Mohammed Ansari has died on 15th May 2021
to further demonstrate that he should be allowed parole to meet
his family at Mumbai, Maharashtra
Submission of the petitioner:-
a) The petitioner has heavily relied upon judgement reported in
2017 (15) SCC 55 (Asfaq vs State of Rajasthan & Ors.), in
support of his prayer for release on parole. Relying on such
judgment the petitioner says that his prayer for parole is
squarely covered by the reasons given by the Hon'ble Supreme
Court for release of a prisoner in parole. The petitioner has also
cited several other orders passed by the Hon'ble Supreme Court
and different High Courts which are as follows:-
1) Order passed by Supreme Court of India in W.P (Crl.) No.158
of 2018 (Mohammed Amin Vs. State of Rajasthan & Ors.)
W.P.A . 2594 of 2019
2) Order passed by Supreme Court of India in W.P (Crl.) No.235
of 2018 titled as Mohammed Shamsuddin Vs. State of Rajasthan
& Ors.
3) Order passed by Supreme Court of India in Criminal Appeal
No.340 of 2019 titled as Fazlur Rehman Sufi @ Shamim Vs.
State of Rajasthan & Ors.
4) Order passed by Supreme Court of India in W.P. (Crl.) No.284
of 2018 titled as Abre Rehmat Ansari Vs. State of Rajasthan &
Ors.
5) Order passed by Supreme Court of India in W.P. (Crl.) No.250
of 2018 titled as Mohammad Afaq Khan Vs. State of Rajasthan &
Ors.
6) Order passed by the Supreme Court of India in W.P (Crl.)
No.186 of 2019 titled as Mohd. Aijaz Akbar Vs. State of
Rajasthan & Ors.
7) Order passed by High Court of Judicature at Bombay Bench
at Aurangabad in Criminal Writ Petition No.213 of 2009 titled as
Mohammed Moin Faridulla Qureshi Vs. State of Maharashtra &
Ors.
8) Order passed by High Court of Judicature at Bombay Bench
at Aurangabad in Criminal Writ Petition No.446 of 2018 titled as
Mohammed Moin Faridulla Qureshi Vs. State of Maharashtra &
Ors.
9) Order passed by High Court of Judicature at Bombay Bench
at Aurangabad in Criminal Writ Petition No.33 of 2019 titled as
W.P.A . 2594 of 2019
Mohammed Moin Faridulla Qureshi Vs. State of Maharashtra &
Ors.
10) Order passed by High Court of Judicature at Bombay Bench
at Nagpur in Criminal Writ petition No.310 of 2020 titled as
Mohd Iqbal Mohd. Hanif Shaikh Vs. State of Maharashtra & Ors.
11) Order passed by High Court of Punjab & Haryana at
Chandigarh in CRWP No.4593 of 2020 titled as Manga @ Manga
Singh Vs. State of Punjab & Ors.
12) Order passed by High Court of Judicature at Madras in Writ
Petition No.8642 of 2020 titled as Mrs. T. Arputham Vs. State of
Tamilnadu & Ors.
13) Order passed by High Court of Judicature for Rajasthan
Bench at Jaipur in D.B. Criminal Writ Petition (Parole) No.700 of
2018 titled as Habib Ahmed Khan Vs. State of Rajasthan & Ors.
14) Order passed by High Court of Judicature for Rajasthan
Bench at Jaipur in D.B Civil Writ Petition No.16042 of 2017
titled as Pappu @ Salim Vs. State of Rajasthan & Ors.
15) Order passed by High Court of Judicature for Rajasthan
Bench at Jaipur in D.B Criminal Writ Petition (Parole) No.186 of
2019 titled as Pappu @ Salim Vs. State of Rajasthan & Ors.
16) Order passed by High Court of Judicature for Rajasthan
Bench at Jaipur in D.B. Criminal Writ petition No.102 of 2020
titled as Pappu @ Salim Vs. State of Rajasthan & Ors.
17) Order passed by High Court of Judicature for Rajasthan
Bench at Jaipur in D.B Criminal Writ petition No.533 of 2020
titled as Daya Singh Lahoriya Vs. State of Rajasthan & Ors.
W.P.A . 2594 of 2019
18) Order passed by High Court of Judicature for Rajasthan
Bench at Jaipur in D.B. Criminal Writ Petition No.515/2020,
542/2020, 609/2020 and 648 of 2020.
19) Parole granted to the co-convict Mojammil SK @ Akka who is
undergoing the imprisonment of life in same case along with the
petitioner. He got parole two times.
b) The petitioner by citing these orders has urged that even a
convict for life imprisonment has a right to be released on parole
to meet his family particularly in view of the recent death of his
brother on 15th May, 2021.
Submission on behalf of respondents:-
a) On behalf of the respondents, two reports have been filed
pursuant to the orders passed in the writ petition. The first
report has been affirmed by Superintendent, Presidency
Correctional Home (respondent no.3) and the other report is by
the Officer-in-Charge, Law Cell, Director of Correctional Services,
West Bengal. The second report was taken on record on 3rd June,
2021. Relying upon the first report, it is submitted on behalf of
the State that the prayer for release on parole for a period of 30
days and allowing the petitioner to visit addresses situated at
Mumbai, Maharashtra is not at all viable from the view point of
security. The writ petitioner, yet was granted parole under Police
guard for two days excluding journey time by the respondent
no.2 on 28th November, 2019. The respondent no.3 in view of
such order of the respondent no.2 had requested the Kolkata
Police authorities to provide police escorts and/or
W.P.A . 2594 of 2019
guards so that the writ petitioner, a life convict can avail parole.
However, Kolkata Police authorities expressed their inability to
provide police escorts and guards to the petitioner as Mumbai in
Maharashtra does not fall within their jurisdiction. The petitioner
therefor could not avail the parole granted on 28th November,
2019.
b) Considering the stand of the Kolkata Police authorities, the
respondent no.2 thereafter took an initiative to shift the
petitioner from Presidency Correctional Home, Kolkata to Taloja,
Central Jail, Khargar, Mumbai permanently. The petitioner's
case was informed to the Maharashtra Government through the
Additional Director General of Police and IG of Prisons,
Maharashtra, vide a memo dated 11th November, 2019. The
transfer was considered, according to the respondents to enable
the petitioner to meet his family members, near relatives while in
jail at Mumbai. So that the security issue for non-availability of
escorts/guards does not stand in the way. The Addl. Director
General of Police and Inspector General of Prisons and
Correctional Services, Maharashtra State, Pune - 411 001 by a
return memo has, however, stated the following:-
"1) With reference to above subject cited your office has sent
the proposal of reciprocal transfer of Convict Prisoner namely
Noor Mohammad @ Sahabaz @ Sikander from Presidency
Correctional Home of Taloja Central Jail in Maharashtra
State.
2) As per descriptive roll of the prisoner his appeal is
pending at Hon'ble High Court, Kolkata.
W.P.A . 2594 of 2019
3) As per Maharashtra Prison Manual Rules 1979, Chapter
No.35, Removal of prisoner, Rule No.10(b)(3), "No prisoner
should be transferred under reciprocal arrangements till his
appeal period is over and if he has filed an appeal till the
appeal is decided."
4) Therefore the proposal of the said prisoner may be
forwarded to this office after the decision of the appeal which
is pending in the Hon'ble High Court, Kolkata."
This letter from Addl. Director General of Police, Maharashtra State
has been placed before the Court by way of the second report.
c) The respondents say that they have no difficulty in releasing the
petitioner on parole but in view of the practical difficulty in
arranging for security for the petitioners travel to Maharashtra
and stay thereat while on parole is the main impediment. The
idea of permanent transfer to a jail at Mumbai has also whittled
down in view of the letter received from Add. Director General,
Maharashtra State. The State respondents submit that the
petitioner cannot, therefore, be released on parole for these
reasons.
Petitioner's Reply:-
The petitioner says that from the various orders and judgments
passed by the Hon'ble Supreme Court and relied upon by the
petitioner it will be apparent that even a convict like the
petitioner serving life sentence can be transferred to a jail in
another State and released therefrom in parole. The petitioner is
ready to abide by any terms and conditions that may be imposed
for being released on parole. The petitioner is also ready and
W.P.A . 2594 of 2019
willing to cooperate with the police authorities in Maharashtra
for availing parole to meet his family.
Decision with reasons:-
a) The application of the petitioner for release in parole has not yet
been formally disposed of by the Authority concerned. On a
formal disposal it would have been clear whether the petitioner's
prayer is allowed or rejected. However, from the reports filed by
the State respondents and the submission made on their behalf
it is clear that the State respondents are not opposed to the
petitioner's release on parole but keeping in mind the difficulties
encountered in implementing the release on parole when the
petitioner was granted parole for two days excluding the travel
time in 2019 the respondents are not inclined to release the
petitioner on parole. Moreover, keeping in mind the security
factor, the respondents are not inclined to release the petitioner
on parole for a long period of 30 days as prayed for. This stand
of the State respondents pose a question as to a practical
difficulty in giving effect to the release of the petitioner in parole
to travel from Kolkata to Mumbai to visit his family in
Maharashtra. Even if the police authorities in West Bengal
provide escort during the transit from Kolkata to Mumbai it will
be the responsibility of Mumbai/Maharashtra Police to keep
track over the petitioner's activities while he stays at
Mumbai/Maharashtra. The Hon'ble Supreme Court in Asfaq
(supra) has laid down the reasons for which it is important to
release a prisoner on parole irrespective of the seriousness of the
W.P.A . 2594 of 2019
crime committed and sentence awarded. In the said Supreme
Court judgment on one hand the well-being of the prisoner has
been considered and on the other the safety and security of the
society upon release of the prisoner and the prisoner's personal
safety and security while he is on parole has also been
considered. In fact, in paragraph 29 of the said judgement the
Hon'ble Supreme Court has taken into account the threat of
injury to a prisoner released on parole from outsiders who may
have been affected by the offence committed by such prisoner.
Taking into account all these factors the moot question which
falls for consideration in this case is not only the release of the
petitioner on parole but also giving effect to such release to allow
the petitioner to visit Maharashtra to meet his family.
b) Release on parole was governed by the provisions of the
Prisoners Act, 1900 read with the West Bengal amendment by
the Prisoners (West Bengal Amendment) Act, 1955 by way of
incorporating Section 31A wherein sub-Section (1) provided for
Temporary Release of prisoners. The West Bengal amendment
brought to Section 31A of the Prisoners Act, 1900 in sub-section
3 of Section 31A provided for "Every prisoner shall when released
under sub-section (1), remain within West Bengal during the
period of such release". In West Bengal release on parole is now
governed by the provisions of Sec. 62 of the West Bengal
Correctional Services Act, 1992 (hereinafter referred to as the
said Act). Sec. 62 (1) of the said Act provides that the Inspector
General of Correctional Services may release a prisoner
W.P.A . 2594 of 2019
sentenced to imprisonment for a period of 2 years or more on
parole for such period not exceeding one month excluding the
period required for journey from and to the correctional home on
the conditions stated in the said Section. The stipulation under
Section 31A(3) of the Amendment Act, 1955 to the effect that the
prisoner on being released temporarily has to remain in West
Bengal has, however, been removed from the said Act or in
particular Section 62 thereof. This removal has to be construed
as a conscious removal of the provision from the said Act. At the
present, there is as such no need for a prisoner on parole to stay
in West Bengal during the period of release. The released
prisoner is free to travel anywhere in India to visit his family or
relatives. The question of scrutiny again comes in the way for
prisoner to travel outside the State of release on parole as the
Police Authorities are not only different but governed by different
State administration following the State law and rules of a
particular State.
c) Section 62 (4) of the said Act, however, has imposed a new
embargo on a prisoner to be released on parole under sub-
Section 1 of Section 62. If the said prisoner has been convicted
for an offence punishable under Chapter XII or chapter XVII
(excluding the offence of criminal breach of trust and mischief) or
for an offence of forgery punishable under sec. 465 of the Indian
Penal Code (45 of 1860) or for an offence involving violation of
provisions of the Imports and Exports (Control) Act, 1947 (18 of
1947) or of any other law regulating or controlling the essential
W.P.A . 2594 of 2019
service and supplies or regulating or prohibiting the adulteration
of food and medicine cannot be released on parole in view of the
provisions of Section 62(4)(c) of the said Act.
d) The petitioner in the instant case as appears from the statements
made in the writ petition has been convicted and sentenced to
life imprisonment in connection with Khadim Abduction case.
The specific nature of offence for which the petitioner has been
convicted is not provided either specifically or in details in the
writ petition. "Abduction" and "Kidnapping" are offences which
fall under Chapter XVI of India Penal Code, 1860 (in short IPC)
and as such are not covered either under Chapter XII or XVII of
IPC as stipulated in Sec. 62 (4) of the said Act. However, whether
the petitioner has committed any offence under Chapter XII or
XVII of IPC is not known to this Court since the same has not
been pleaded in the writ petition or pointed out by the State
Respondents. I take it that when the respondents have not
disputed the petitioner's release on parole and having released
the petition in 2019 for at least two days, the petitioner has not
been convicted for having committed any offence under Chapter
XII or Chapter XVII of IPC as stipulated in Sec.62(4) of the said
Act. There is as such no other embargo upon the petitioner
being released on parole and allowed to travel outside West
Bengal during his period of release on parole if he is so released
save and except the security factor. The concern of the State
respondents in releasing the petitioner for such long period of 30
days can be taken care of if the period is reduced or an
W.P.A . 2594 of 2019
assurance from Maharashtra/Mumbai Police to take care of the
security aspect while the petitioner is at Mumbai/Maharashtra.
The State Respondents have also expressed their concern as to
keeping track over the movement of the petitioner once he goes
out of West Bengal and his security during the release period
while he is out of West Bengal. This aspect also gets resolved
once there is an assurance from the side of
Mumbai/Maharashtra Police.
e) Section 62(1) of the said Act provides for release on parole for a
maximum period of one month excluding the travel time while
Sec. 62 (3) provides for release of any prisoner in case of any
emergency such as severe illness of near relative or friend or
marriage of his son, daughter, brother or sister or funeral of his
near relative, friend or son or daughter or brother and sister or
any ceremony in which his participation according to prevailing
custom is essential for a period not exceeding five days. The
competent authority while deciding the petitioner's case for
release on parole can always strike a balance between the time
period provided in Section 62(1) and 62(3) if the said authority
finds that the release of the petitioner on parole for the
maximum period of one month or 30 days as prayed for may be a
security threat.
f) Section 62 (8) (b) provides that a prisoner released on parole
under Sec. 62 (1) or Sec. 62 (3) shall report to the police station
of the place of stay during the period of release on parole to
enable the local police to keep a watch on his activities. The
W.P.A . 2594 of 2019
practical difficulty submitted by the respondents relate to this
provision as the petitioner intends to visit his family at Mumbai
in Maharashtra. The jail authorities or the police authorities in
West Bengal have no control over the police authorities in
Maharashtra and as such can only request the local police
station where the petitioner intends to stay during the parole to
keep a watch on his activities so that the petitioner does not turn
out to be a threat to the society or that his life is also not
endangered. This also brings us to the concern expressed by the
Hon'ble Supreme Court in Asfaq (supra) particularly in
paragraph 29 thereof. A coordination is therefor necessary in the
instant case between the jail authorities, the police authorities in
West Bengal as also the police authorities in Maharashtra.
Unless there is a proper coordination, the release of the
petitioner in parole will pose questions to the security issue both
for the society as also for the petitioner. Security issue being of
prime consideration and keeping in mind the restrictive
functioning of administrative authorities pan India owing to
pandemic the release of the petitioner in parole unless the
security issues are resolved for the present is not called for.
g) It is correct that in Mohammed Shamsuddin (supra), Fazlur
Rehman (supra), Mohammad Afaq Khan (supra), Mohd. Aijaz
Akbar (supra) cited by the petitioner, the Hon'ble Supreme Court
of India has allowed inter-state transfer of the petitioner and
thereafter release on parole from the transferee jail but the
authority and jurisdiction available to the Hon'ble Supreme
W.P.A . 2594 of 2019
Court under Article 142 of the constitution of India is not
available with the High Courts. Reliance in this context may be
placed on the judgement reported in 2017(4) SCC 397 [Asha
Ranjan vs State of Bihar] (particularly paragraphs 70-87).
Unless there is a consent from the Government of Maharashtra
as required under Section 3 of the Transfer of Prisoners Act,
1950 which is absent in this case in view of the memo issued by
the Additional Director General of Police & Inspector General of
Correctional Services, Maharashtra a prisoner cannot be
transferred from one State to the other. Although in Asha Ranjan
(supra), it was held in paragraph 86.5 as SCC page 447:-
"86.5. Section 3 of the 1950 Act does not create an
impediment on the part of the court to pass an order of
transfer of an accused or a convict from one jail in a State
to another prison in another State because it creates a bar
on the exercise of power on the executive only"
The observation therein has to be construed in the light of Article
142 only that the power of transfer is available with the Hon'ble
Supreme Court and not with the High Court in exercise of powers
under Article 226 of the Constitution of India. This Court has no
territorial jurisdiction over the State of Maharashtra to direct
transfer of the petitioner from the jail at Alipore, West Bengal to a
jail in Maharashtra and thereafter release of the petitioner from the
transferor jail in parole. The judgements/orders of various High
Courts, also do not deal with the issue of release of a prisoner in
parole for visiting another State/union territory or inter-state
transfer of a prisoner and thereafter release from the transferee jail
W.P.A . 2594 of 2019
on parole. The High Court judgements are related to release in
parole for the prisoner remaining within the State during his parole.
I am, therefore, not inclined to direct any transfer of the petitioner
to a jail in Maharashtra and subsequently be released therefrom.
h) The issue of transfer as attempted by the respondents also does
not fall for consideration of this Court as no such prayer for
transfer been made before this Court. Moreover in view of the
memo issued by Addl. Director General of Police and Inspector
General of Correctional Services, Maharashtra State disclosed in
the second report filed by the State wherein he has clearly stated
that as per the existing rules prevalent in Maharashtra the
transfer is not possible.
Moreover, the appeal filed by the petitioner is pending before this
Court under the provisions of Section 391 of the Code of
Criminal Procedure, 1973. This Court may direct further
evidence to be taken by the Court of Session wherein the trial of
the petitioner had taken place. In such event the petitioner's
presence may be required by the Trial Court. If the petitioner is
transferred permanently to Taloja Central Jail, Khargar,
Mumbai, it will be difficult for the authorities to present the
petitioner before the Sessions Court for such additional evidence
if occasion so arises. Even though in Asha Ranjan (supra) the
Hon'ble Supreme Court has held that evidence through video
conference can be a course that may be adopted in case of trial
when an under trial prisoner is transferred to a jail in another
W.P.A . 2594 of 2019
State, adopting such procedure may not be fruitful in the instant
case.
Conclusion:-
The respondent no.2 in order to resolve the security issue and
dispose of the petitioner's application dated 27th November, 2018 for
release on parole is given the following directions:-
i) The respondent no.2 shall within a week from date collect the
details of specific place or places where the petitioner intends to
stay in Maharashtra on being released on parole;
ii) The respondent no.2 shall within a week from the date of
receiving such information seek a confirmation from his
counterparts in Maharashtra wherein the petitioner intends to
stay on being released on parole for keeping a watch on the
petitioner's activities thereat by forwarding a copy of this order.
iii) The respondent no.2 shall wait for four months from the date of
seeking confirmation from his counterparts in Maharashtra and
shall thereafter within three months formally dispose of the
petitioner's application dated 27th November, 2018 for release
on parole by passing a reasoned order by taking into
consideration of all relevant factors.
iv) The respondent no.2 shall be free to decide on the time period
for which the petitioner may be released on parole and the terms
and condition for his release.
v) The respondent no.2 shall also take into consideration the
developments subsequent to the filing of the writ petition i.e.,
death of the petitioner's brother on 15th May, 2021.
W.P.A . 2594 of 2019
vi) In the event there is no confirmation from the side of the
Maharashtra Police Authorities within three months from the
date of respondent no.2 seeking confirmation from his
counterparts in Maharashtra, the respondent no.2 shall dispose
of the petitioner's application dated 27th November, 2018 by a
reasoned order giving all details as expeditiously as possible but
not beyond seven months from date.
Writ petition is accordingly disposed of. There shall, however, be no
order as to costs.
Urgent photostat certified copy of this judgment and order, if
applied for, be supplied to the parties on priority basis after
compliance with all necessary formalities.
(ARINDAM MUKHERJEE, J.)
