Rajasthan High Court
Fazlur Rehman Sufi @ Shamim S/O ... vs State Of Rajasthan on 4 February, 2021
Bench: Sandeep Mehta, Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Writ Petition No. 515/2020
Fazlur Rehman Sufi @ Shamim S/o Abdul Rehman Sufi, R/o 54/b
2Nd Floor Room No 42 Hingwala Building Meghraj Sethi Marg
Mumbai 400011 Maharashtra At Present Confined In Central Jail
Jaipur Raj. Through His Wife Ashrafi Anisa Fazlur Rehman W/o
Fazlur Rehman Sufi R/o 54/b 2Nd Floor Room No 42 Hingwala
Building Meghraj Sethi Marg Mumbai-400011 Maharashtra
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary (Home)
Govt. Of Raj.
2. The Superintendent, Central Jail Jaipur
3. Union Of India, Through Under Secretary Mha Got. Of
India
----Respondents
Connected With
D.B. Criminal Writ Petition No. 542/2020
Asfaq S/o Shri Abdul Aziz, R/o Nagouri Mohalla Satmarg Near
Ramkaran School Dausa Raj. (At Present Confined In Central Jail
Jaipur) Through His Son Farookh Khan Son Of Shri Asfaq Aged
About 27 Years R/o Lalsot Road Opposite Purana Cinema Hall
Dausa Dist. Dausa Raj.
----Petitioner
Versus
1. Union Of India, Through Special Pp
2. State Of Rajasthan, Through Inspector General Prison
Jaipur
3. The Dist. Collector, Jaipur
4. The Superintendent, Central Jail Jaipur
----Respondents
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(2 of 14) [CRLW-515/2020]
D.B. Criminal Writ Petition No. 609/2020
Abre Rehmat Ansari Son Of Shri Noor Mohammed Ansari,
Resident Of Village Kusoona Khurd, Po Gulhariya, Tehsil And P.s -
Menhdawal, District - Sant Kabir Nagar, (U.p) - 272171 Presently
Lodged In Central Jail, Jaipur, Rajasthan Through His Wife
Ameequnisa Abre Rehmat Ansari W/o Shri Abre Rehmat Ansari
R/o Village- Kusoona Khurd, Po Gulhariya, Tehsil And P.s -
Menhdawal, District- Sant Kabir Nagar - 272171 (U.p)
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary (Home)
Govt. Of Rajasthan
2. The Superintendent, Central Jail, Jaipur
3. Union Of India, Through Under Secretary, Mha Govt Of
India
----Respondents
D.B. Criminal Writ Petition No. 848/2020
Habib Ahmed Khan S/o Mohammad Afzal Khan, R/o Kaharon Ka
Adda Rae Bareilly (U.p.) At Present Confined In Central Jail
Jaipur Raj. Through His Son Mohammad Asif Khan S/o Habib
Ahmed Khan Aged About 55 Years R/o Kaharon Ka Adda Khinni
Talla Rae Bareli Raebareili U.p.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. The Superintendent, Central Jail Jaipur
3. The Union Of India, Through
----Respondents
For Petitioner(s) : Mr. Mujahid Ahmad through V.C.
Mr. Nishant Vyas
Mr. Lakhan Singh Tomar
For Respondent(s) : Mr. R.D. Rastogi, ASG assisted by
Mr. Akshay Bhardwaj through V.C.
Ms. Alka Bhatnagar, P.P.
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(3 of 14) [CRLW-515/2020]
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE PRAKASH GUPTA
Order
Order reserved on : 03/02/2021
Order pronounced on : 04/02/2021
REPORTABLE
BY THE COURT : (PER HON'BLE MEHTA, J.)
These four writ petitions have been filed by the
petitioners Fazlur Rahman Sufi @ Shamim, Asfaq, Habib Ahmad
Khan, Abre Rehmat Ansari, all of whom have been convicted for
various offences including that under the TADA Act and have been
awarded life sentence and are incarcerated at the Central Jail,
Jaipur.
It is not in dispute that each of the petitioners have
been incarcerated in prison for a period in excess of 26 years. For
the sake of ready reference it may be mentioned here that the
petitioners have already availed first parole by virtue of the
following orders:-
Name of the convict Order granting first parole
petitioner
Order dated 22.02.2019
Fazlur Rahman Sufi @ passed by the Hon'ble
Supreme Court in Criminal
Shamim Appeal No.340/2019 for a
period of 21 days
Order dated 14.05.2018
Asfaq passed by the Hon'ble
Supreme Court in Criminal
Appeal No.10464/2017 (MA
No.1178/2018) for a period of
21 days
(1) Order dated 02.08.2018
Habib Ahmad Khan passed by the Co-ordinate
Bench of this Court in Parole
Writ Petition No.700/2018 for a
period of 20 days. The said
parole was further extended
for a period of four days by
order dated 29.08.2018
(4 of 14) [CRLW-515/2020]
(2) Order dated 15.01.2020
passed by the Co-ordinate
Bench of this Court in Parole
Writ Petition No.654/2019 for a
period of 15 days.
Order dated 15.04.2019
Abre Rehmat Ansari passed by the Hon'ble
Supreme Court in Writ Petition
(Criminal No.02/2018) for a
period of 21 days
After the petitioners had availed first/second paroles, as
above, representatives/relatives of the petitioners submitted
representations to the Government of India, Ministry of Home
Affairs for grant of subsequent parole to the convict petitioners,
which have been dismissed as below:-
Name of the convict Order rejecting
petitioner parole application
Fazlur Rahman Sufi @ Shamim 10.07.2020
Asfaq 22.06.2020
Habib Ahmad Khan 28.08.2020
Abre Rehmat Ansari 10.07.2020
For ready reference, the aforesaid orders are quoted
hereinbelow:-
Fazlur Rahman Sufi @ Shamim
"F.No. 13011/05/2019-LC Date 10.07.2020
ORDER
Whereas, this Ministry had received a
representation dated nil from Mrs. Anisa Fazlur Rehman
for 2nd parole to her TADA convict husband Fazlur
Rehman Sufi @ Shamim facing lifetime imprisonment at
Central Jail, Jaipur (Rajasthan).
(5 of 14) [CRLW-515/2020]
2. And whereas, in order to consider parole to
TADA convict Fazlur Rehman Sufi @ Shamim, this
Ministry sought inputs from the authorities concerned.
3. And whereas, the matter was examined in detail
in consultation with the Prosecuting Agency & State
Government.
4. And whereas, as per Maharashtra Prisons
(Bombay parole and furlough) Rules 1959, prisoners
convicted under terrorist activities are not eligible for
furlough and regular parole.
5. Now therefore, taking into consideration the
recommendation of State Government, Prosecuting
Agency and the serious nature of crime committed by
Fazlur Rehman Sufi @ Shamim, the request of Mrs.
Anisa Fazlur Rehman for 30 days parole to her TADA
convict husband Fazlur Rehman Sufi @ Shamim does
not find merit and is disposed of accordingly."
Asfaq
"F.No.13011/02/2019-LC Date 22.06.2020
ORDER
Whereas, a D.B. Criminal Writ Petition (Parole)
No. 853/2019 was filed by TADA convict Asfaq before
Hon'ble High Court of Judicature for Rajasthan at Jaipur
Bench, Jaipur for 30 days parole.
2. And whereas, disposing off the aforesaid
petition, the Hon'ble High Court of Rajasthan vide its
order dated 03rd March, 2020 directed to consider the
representation dated 29.08.2019 made by the
petitioner Asfaq for 30 days parole.
3. And whereas, in order to examine the request of
TADA convict Asfaq, this Ministry sought inputs from
the authorities concerned.
4. And whereas, the matter was examined in detail
in consultation with the Prosecuting Agency.
5. Now therefore, taking into consideration the
serious nature of crime committed by him and
recommendation of prosecuting authority that release
of the convicted accused on parole will be a serious
threat to the society and nation, Government of India
has decided not to agree to the request of Asfaq for 30
days parole. Hence, the representation dated
(6 of 14) [CRLW-515/2020]
29.08.2019 of TADA Convict Asfaq does not find merit
and disposed of accordingly."
Habib Ahmad Khan
"F.No. 13011/02/2019-LC Dated 28th August, 2020
ORDER
Whereas, a D.B. Criminal Writ Petition (Parole)
No.392/2020 was filed by TADA convict Dr. Habib
Ahmed Khan before Hon'ble High Court of Judicature
for Rajasthan at Jaipur Bench, Jaipur for permanent
parole.
2. And whereas, the Hon'ble High Court of
Rajasthan vide its order dated 11.08.2020 directed to
consider for his permanent parole. The Hon'ble Court
further directed Union of India to consider the said
application in expeditious manner within 15 days.
3. And whereas, in the recent past this Ministry
vide order dated 25th July, 2019 has already rejected
parole request of TADA convict Dr. Habib Ahmed Khan
on the basis of inputs received from Prosecuting
Agency.
4. And whereas, the matter was examined in detail
with the comments of Prosecuting Agency submitted
earlier
5. Now therefore, taking into consideration the
facts stated above and serious nature of crime
committed by Dr. Habib Khan, Government of India has
decided not to agree to the request of Dr. Habib Ahmed
Khan for permanent parole. Hence, the request of TADA
convict Dr. Habib Ahmed Khan does not find merit and
is disposed of accordingly."
Abre Rehmat Ansari
"F.No. 13011/05/2019-LC Date 10/07/2020
ORDER
Whereas, this Ministry had received a
representation dated nil from Mrs. Ameequnnisa Abre
Ansari for 2nd parole to her TADA convict husband Abre
Rehmat Ansari facing lifetime imprisonment at Central
Jail, Jaipur (Rajasthan).
(7 of 14) [CRLW-515/2020]
2. And whereas, in order to consider parole to
TADA convict Abre Rehmat Ansari, this Ministry sought
inputs from the authorities concerned.
3. And whereas, the matter was examined in detail
in consultation with the Prosecuting Agency.
4. Now therefore, taking into consideration the
serious nature of crime committed by Abre Rehmat
Ansari and recommendation of Prosecuting Agency, the
request of Mrs. Ameequnnisa Abre Rehmat Ansari for
2nd parole to her TADA convict husband Abre rehmat
Ansari does not find merit and is disposed of
accordingly."
Being aggrieved by the dismissal of their applications
for subsequent/second paroles, the petitioners have approached
this Court by way these writ petitions under Article 226 of the
Constitution of India. Notice of the writ petitions have been issued
to the respondents.
Mr. R.D. Rastogi, learned ASG, has put in appearance
on behalf of the Union of India and the learned Public Prosecutor
represents the State. Pleadings are complete.
There is a pertinent assertion in all writ petitions that
the conduct of the convict concerned while in jail has been
satisfactory and that they complied with all the terms and
conditions imposed by the Court and Jail Authorities while availing
earlier parole/s. These pertinent assertions made on behalf of the
petitioners in the writ petitions have not been disputed either by
the State Government or by the Union of India in the
reply/counter affidavit.
Learned counsel representing the petitioners placed
reliance on the earlier parole orders passed in favour of the
petitioners and the Hon'ble Supreme Court's judgment in the case
of Asfaq vs. State of Rajasthan [(2017) 15 SCC 55] and
(8 of 14) [CRLW-515/2020]
urged that the petitioners, who are of old age, deserve indulgence
of second parole so as to enable them to maintain family ties and
for various other pressing/emergent reasons.
Mr. R.D. Rastogi, learned ASG appearing for the Union
of India, vehemently and fervently opposed the submissions
advanced by the petitioners' counsel. He placed reliance on the
judgments rendered by the Hon'ble Supreme Court's
judgments in the cases of Sunil Fulchand Shah vs. Union of
India & Ors [(2000) 3 SCC 409], State of Gujarat & Anr. vs.
Lal Singh @ Manjit Singh & Ors. [(2016) 8 SCC 370] and
Asfaq vs. The State of Rajasthan [(2017) 15 SCC 55] and
the Division Bench judgment of this Court in Shambhu Dayal Vs.
State of Rajasthan & Ors [(2012) 4 RLW 3073], the order
dated 29.08.2018 passed by this Court in D.B. Criminal Writ
Petition No.466/2018 (Fazlur Rahman Sufi @ Shamim vs.
State of Rajasthan & Ors) to oppose the prayer of the
petitioners and vociferously urged that in pleadings of the writ
petitions, reference has been made to the Rajasthan Prisoners
Release on Parole Rules, 1958 for seeking parole, whereas these
rules do not apply to the petitioners' cases. Mr. Rastogi submitted
that pleadings in the writ petition of Abre Rehmat Ansari are
contradictory inasmuch as at one place it is mentioned that the
petitioner's father has passed away, whereas in subsequent
paragraphs, it is mentioned that he is on death bed. Mr. Rastogi
has also, during the course of arguments, forwarded secret
reports pertaining to each of the petitioner in sealed envelopes
which were opened in the court and have been without disclosure
of the contents of the reports to the parties. The reports were
(9 of 14) [CRLW-515/2020]
perused and then returned in sealed cover. On these grounds, Mr.
R.D. Rastogi, sought dismissal of the writ petitions.
We have given our thoughtful consideration to the
submissions advanced at bar and gone through the impugned
orders and the material available on record. We have respectfully
gone through the precedents cited at bar.
Suffice it to say that the position regarding applicability
of the Rajasthan Prisoners Release on Parole Rules, 1958 to these
cases is no longer res-integra as has been held by Division Bench
of this Court in the case of Shambhu Dayal (supra) and in the
order dated 29.08.2018 passed by Division Bench of this Court in
D.B. Criminal Writ No. 466/2018 (Fazlur Rahman Sufi @ Shamim
vs. State of Rajasthan & Ors). However, we are of the view that in
a plea made by a convict incarcerated in prison for more than 26
years, the hyper technical opposition by the Union of India that
the wrong set of rules are quoted in the pleadings cannot be
considered to be valid ground to throw out the petitioners' plea of
release on parole on humanitarian grounds and to enable them to
maintain family ties. It is important to note here that the orders
which have been challenged in all these writ petitions, whereby
the representations seeking second/subsequent/permanent parole
filed by the petitioners were rejected, were passed by the
competent authority of the Union of India exercising the powers
under the Parole Rules, 1955 (issued by the Government of India).
While considering the case of the petitioner Asfaq [(2017) 15 SCC
55] seeking first parole the Hon'ble Supreme Court observed as
below:-
(10 of 14) [CRLW-515/2020]
"15. A convict, literally speaking, must remain in jail
for the period of sentence or for rest of his life in case
he is a life convict. It is in this context that his release
from jail for a short period has to be considered as an
opportunity afforded to him not only to solve his
personal and family problems but also to maintain his
links with society. Convicts too must breathe fresh air
for at least some time provided they maintain good
conduct consistently during incarceration and show a
tendency to reform themselves and become good
citizens. Thus, redemption and rehabilitation of such
prisoners for good of societies must receive due
weightage while they are undergoing sentence of
imprisonment.
17. From the aforesaid discussion, it follows that
amongst the various grounds on which parole can be
granted, the most important ground, which stands out,
is that a prisoner should be allowed to maintain family
and social ties. For this purpose, he has to come out for
some time so that he is able to maintain his family and
social contact. This reason finds justification in one of
the objectives behind sentence and punishment,
namely, reformation of the convict. The theory of
criminology, which is largely accepted, underlines that
the main objectives which a State intends to achieve by
punishing the culprit are: deterrence, prevention,
retribution and reformation. When we recognise
reformation as one of the objectives, it provides
justification for letting of even the life convicts for short
periods, on parole, in order to afford opportunities to
such convicts not only to solve their personal and
family problems but also to maintain their links with
the society. Another objective which this theory
underlines is that even such convicts have right to
breathe fresh air, al beit for periods. These gestures on
the part of the State, along with other measures, go a
long way for redemption and rehabilitation of such
prisoners. They are ultimately aimed for the good of
the 2 (2000) 3 SCC 394 society and, therefore, are in
public interest.
26. We find that the Rules of the Central Government,
in this behalf, are of the year 1955, which are skeleton
in nature. There is an imperative and immediate need
for updating these Rules thereby including
comprehensive provisions, in the light of the discussion
contained above, incorporating the aforesaid and other
principles so as to provide suitable guidelines to those
who have to consider such applications for grant of
parole. We are hopeful that this aspect shall be given
due consideration at the appropriate level by the
Government of India. For this purpose, a copy of this
judgment may also be sent to the Ministry of Law &
Justice, Government of India.
(11 of 14) [CRLW-515/2020]
From a careful perusal of the above observations of the
Hon'ble Supreme Court it is clear that the rules formulated by the
Central Government in the year 1955 were skeleton in nature and
that there was imperative and immediate need for updating these
rules. However, no progress has been made in this regard so far.
It was further held that the most important ground on which
parole can be granted is to enable the prisoner to maintain family
and social ties. For this purpose he has to come out for some time
so that he is able to maintain his family and social contact. Thus,
even though the rules of 1955 prescribe release on parole on very
limited grounds viz. ailment of the prisoner himself or his close
family members, the ground for releasing the convict on parole
expostulated by Hon'ble Supreme Court after examining these
rules as mentioned in para 17 of Asfaq's judgment would hold field
in the present scenario. The convict petitioners herein were
granted first parole by relying on the above quoted observations in
Asfaq's case (supra).
In the case of Mohd. Aijaz Akbar vs. State of
Rajasthan & Ors. (Writ Petition (Criminal No.186/2019)
decided on 16.12.2019, the Hon'ble Supreme Court granted parole
to the writ petitioner therein so that he could maintain his
relations with family.
It is not dispute that each of the writ petitioner herein
has been extended the facility of first parole and second parole
(Dr. Habib Ahmed Khan) by the orders referred to supra and there
is no complaint/adverse report that any of the petitioners misused
the liberty so granted to them.
(12 of 14) [CRLW-515/2020]
The judgments in the case of Sunil Fulchand Shah,
State of Gujarat Vs. Lal Singh, Shambhu Dayal and Fazlur Rehman
Sufi @ Shamim (supra), which were relied upon by learned ASG,
are distinguishable. In the case of Shambhu Dayal (supra), the
Division Bench of this court observed that the State Government
has no power to release on parole the accused convicted under
the NDPS Act and the application would lie to the Central
Government.
While deciding the case of Fazlur Rahman Sufi @
Shamim vide order dated 29.08.2018 the Co-ordinate Bench relied
upon the judgment in the case of Shambhu Dayal and reiterated
the principles laid down therein. There cannot be any dispute
that the parole applications of the accused convicted under the
TADA Act would not lie to the State Government as the power to
deal with the same lies exclusively with the Competent Authority
of the Government of India under the 1955 rules. The petitioners
have followed this requisite procedure and their representations
for parole have been rejected (supra) by the Government of India.
Thus, these judgments are of no help to the respondents for
opposing the prayer made in the writ petition.
In the Sunil Fulchand Shah's case (supra), Hon'ble
Supreme Court was examining the concept of parole in the cases
where the person was under preventive detention. Manifestly the
principles applying to that situation would have no application
whatsoever to the case of the convict petitioners.
In the case of Lal Singh (supra) the Hon'ble Supreme
Court went on to hold that when the writ jurisdiction of the High
Court was invoked for release on convict on parole, strict
(13 of 14) [CRLW-515/2020]
compliance of the relevant considerations laid down in the case of
Sunil Fulchand (supra) has to be made. In that case the Hon'ble
Supreme Court did not find favour with the approach of the High
Court, which abruptly exercised the powers under Article 226 of
the Constitution of India and granted parole to the convict therein.
In the present case, the convicts have followed the
statutory procedure by approaching the Central Government for
grant of parole with reference to the 1955 rules. The prayers
made by the petitioners for grant of prole have been turned down
in a totally mechanical manner without referring to the fact that
each of the convict petitioner had been granted first parole by
orders passed by the Hon'ble Supreme Court and the Division
Bench of this Court and that there is no complaint/adverse report
whatsoever on record to show that the convicts misused the
liberty of first parole so granted to them by courts. The secret
reports relied upon by the learned ASG are totally lackadaisical as
the same make a bald narration of the gravity of offences
attributed to the petitioners and that their release would pose a
threat to the nation. However, none of the reports refers the
conduct of the convicts during first parole.
In this view of the matter, we are of the opinion that
the impugned orders whereby the parole applications of the
petitioners were rejected are unsustainable in the eyes of law as
having been passed in a mechanical manner and without due
application of mind to the facts and law. The petitioners deserve
indulgence of second/subsequent parole so as to maintain the
family and social ties. However, we are not making any
observation on the merits of the prayer made by the petitioner Dr.
(14 of 14) [CRLW-515/2020]
Habib Ahmed Khan for release on permanent parole because the
rules of 1955 do not allow release of a convict on permanent
parole.
The writ petitions thus deserve to be accepted, the
impugned orders are set aside. The convict petitioners shall be
released on second parole for a period of 21 days subject to the
condition that each of them shall furnish a personal bond of
Rs.1,00,000/- and two sound and solvent sureties of Rs.50,000/-
each to the satisfaction of the Superintendent, of the Central Jail
concerned, who shall be at liberty to impose other suitable
condition as per the prescribed procedure. The convict petitioners
shall report to the SHO of the concerned Police Station on every
third day during the period of parole. They shall surrender back to
prison on the 22nd day of their actual release from custody.
The writ petitions are allowed accordingly.
(PRAKASH GUPTA),J (SANDEEP MEHTA),J
Pramod/JKP/26-29
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