Mohd. Aejaz Akbar S/O Abdul Majeed vs State Of Rajasthan
2021 Latest Caselaw 3044 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              D.B. Criminal Writ Petition No. 438/2021
Mohd. Aejaz Akbar S/o Abdul Majeed, R/o H. No. 7-7775/6 Naya
Mohalla    Mominpura       Gulbarga-585104               Karnataka    State.   At
Present Confined in Central Jail Jaipur Raj.
Through His Father Abdul Majeed S/o Late Sh. Abdul Aziz, Aged
About 73 Years R/o H.No. 5-993/32/37417 Gulshan E-Arfat
Colony    Hangarga     Road       Gulbarga        University      Police   Station
Kalaburagi Gulbarga-585104 Karnataka
                                                                    ----Petitioner
                                     Versus
1.       The State Of Rajasthan, Through its Public Prosecutor
2.       The Superintendent, Central Jail Jaipur
3.       The Dist. Parole Advisory Committee, through the Dist.
         Magistrate Jaipur Raj.
4.       Union Of India, through the Ministry of Home Affairs,
         North Block, New Delhi - 110001 (India)
                                                                 ----Respondents

Connected With D.B. Criminal Writ Petition No. 444/2021 Shamshuddin S/o Rukumddin, Aged About 50 Years, R/o House No. 06-639 (Amin Arts), Rangeen Masjid, Mominpura, Kalaburagi, (Gulbarga), Karnataka. At present confined in Central Jail, Jaipur, Rajasthan

----Petitioner Versus

1. The State of Rajasthan through Learned Public Prosecutor.

2. The Superintendent, Central Jail, Jaipur.

3. The District Parole Advisory Committee, through The District Magistrate, Jaipur, Rajasthan.

4. Union Of India, through the Ministry Of Home Affairs.

North Block, New Delhi-110001 (India)

----Respondents D.B. Criminal Writ Petition No. 697/2021 Mohammed Amin S/o Mohammed Usman, R/o 26 A, Zariwala Chawl Room No. 39, Mohammad Umar Rajjab Road Madanpur Mumbai Maharashtra-400008, At Present Confined In Central Jail

(2 of 15) [CRLW-438/2021]

Jaipur Raj.

Through his wife Khurshid Bano Mohammad Amin Ansari W/o Mohammad Amin Ansari Aged About 69 Years, R/o 26 A, Zariwala Chawl Room No. 39 Mohammad Umar Rajjab Road Madanpur Mumbai Maharashtra-400008

----Petitioner Versus

1. The State Of Rajasthan, Through Pp

2. The Superintendent, Central Jail Jaipur

3. Union Of India, Through the Office of Additional Solicitor General Of India

----Respondents D.B. Criminal Writ Petition No. 890/2021 Mohammad Afaq S/o Shri Mohammad Maqsood, R/o House No 335/164 Mahmood Nagar Chok Lucknow (U.P.) Present Address - 401/79 Baradari Chaupatiya Police Station Saadat Ganj, District Lucknow (U.P.) (At Present Confined in Central Jail Jaipur (Raj.) Through His Brother Mohammad Arshad S/o Shri Mohammad Maqsood Aged About 48 Years R/o 401/79 Baradari Chaupatiya Police Station Sadat Ganj Lucknow (U.p.).

----Petitioner Versus

1. The State Of Rajasthan, Through The Secretary Home, Secretariat, Jaipur (Raj.)

2. The Union Of India, Through the Ministry Of Home Affairs, New Delhi.

3. Superintendent Central Jail, Jaipur (Raj.)

----Respondents

For Petitioner(s) : Mr. Mujahid Ahmad, Advocate (through VC) Mr. Nishant Vyas, Advocate Mr. T.C. Swami, Advocate For Respondent(s) : Mr. R.D. Rastogi, Addl. Solicitor General for UOI with Mr. Akshay Bhardwaj, Advocate (through VC) Mr. N.S. Gurjar, PP

HON'BLE MR. JUSTICE PRAKASH GUPTA HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA

(3 of 15) [CRLW-438/2021]

Order

Date of Order :: 22/7/2021 D.B. Cr. Misc. Application Nos. 1/2021 dated 5.7.2021

and 1/2021 dated 6.7.2021 have been filed for amending the writ

petitions.

Applications are allowed and the amended writ petitions

are taken on record.

D.B. Cr. Writ Petition (Parole) No. 438/2021 has been

filed by the convict-petitioner Mohd. Aejaz Akbar; D.B. Cr. Writ

Petition No. 444/2021 has been filed by convict-petitioner

Shamshuddin; D.B. Cr. Writ Petition (Parole) No. 697/2021 has

been filed by the petitioner Mohd. Amin and D.B. Cr. Writ Petition

(Parole) No. 890/2021 has been filed by the convict petitioner

Mohammad Afaq under Article 226 of the Constitution of India with

a prayer that the petitioners be released on 2nd parole for 30

days.

Learned counsel for the petitioners submit that the

petitioners have been convicted by the designated Terrorist and

Disruptive Activities (Prevention) Act, 1987 (for short, 'the TADA')

Court, Ajmer vide judgment dated 28.2.2004 in Sessions Case No.

6/1994 under the TADA Act and sentenced to undergo life

imprisonment. They have served more than 26 years of sentence.

The petitioners filed a statutory appeal before the Hon'ble Apex

Court, which came to be dismissed vide order dated 11.5.2016.

They further submitted that the petitioners were granted 21 days

parole by the Hon'ble Apex Court vide order dated 4.10.2019.

They further submitted that convict petitioner Mohammad Aejaz

Akbar's father is about 75 years of age and is on death bed;

(4 of 15) [CRLW-438/2021]

convict-petitioner Shamshuddin is suffering from neurological

disorders, cervical spondylosis and bulging of intervertibral Disc

and other ailments since 2010; convict petitioner Mohammad Amin

is about 85 years of age and suffering from various ailments and

convict petitioner Mohammd Afaq is a poor person and he has to

discharge his family liability. The petitioners sent representation /

application to the Ministry of Home Affairs, Government of India

for their premature release, but the same was not considered in

proper and legal manner and was dismissed in a mechanical

manner.

They further submitted that on 11.9.2017, Hon'ble

Supreme Court framed the guidelines in the case of co-accused

Asfaq Versus State of Rajasthan reported in (2017) 15 SCC 55. In

that view of the matter, the petitioners again approached the

authorities concerned by way of representation / application. Since

the grievance of the petitioners were not redressed, they filed D.B.

Cr. Writ (Parole) Petitions before this Court, which came to be

dismissed / disposed of vide order dated 29.8.2018. Aggrieved by

the order dated 29.8.2018, the petitioners approached the Hon'ble

Apex Court, wherein vide order dated 4.10.2019 they were

granted first parole for 21 days in view of the fact that co-convicts

were granted parole vide order dated 17.1.2019 passed by the

Coordinate Bench of this Court in D.B. Cr. Writ Petition No.

235/2018 - Mohd. Shamsuddin Versus State of Rajasthan and

others; vide order dated 26.7.2019 passed by the Coordinate

Bench of this Court in D.B. Cr. Writ Petition No. 250/2018 - Mohd.

Afaq Khan Versus State of Rajasthan as also the order passed by

the Hon'ble Apex Court in the case of Asfaq (supra).

(5 of 15) [CRLW-438/2021]

They further submitted that in the same case, Hon'ble

Apex Court has also granted parole to other co-convict Ashfaq vide

order dated 14.5.2018 in M.A. No. 1178/2018 in C.A. No.

10464/2017; co-convict Mohammad Amin vide order dated

6.8.2018 in Writ Petition (Crl.) No. 158/2018; co-convict Fazlur

Rehman Sufi @ Shamim vide order dated 22.2.2019 in Criminal

Appeal No. 340/2019; co-convict Abre Rehmat Ansari vide order

dated 15.4.2019 in Writ Petition (Crl.) No. 284/2018 and co-

convict Mohammad Afaq vide order dated 26.7.2019 in Writ

Petition (Crl.) No. 250/2018. They further submitted that this

Court in D.B. Criminal Writ (Parole) Petition No. 515/2020 of co-

accused Fazlur Rehman Sufi @ Shamim; D.B. Criminal Writ

(Parole) Petition No. 542/2020 of co-accused Asfaq; D.B. Criminal

Writ (Parole) Petition No. 609/2020 of co-accused Abre Rehmat

Ansari; and D.B. Criminal Writ (Parole) Petition No. 848/2020 of

co-accused Habib Ahmed Khan, granted second parole for 21 days.

They further submitted that pursuant to the order

passed by the Hon'ble Apex Court, the petitioners went on parole

for a period of 21 days and complied with all the conditions laid

down in the order and timely surrendered. After completion of one

year, the petitioners again approached the authorities concerned

by way of representations / applications for grant of second parole,

but their applications were not decided. In this view of the matter,

the petitioners Mohd. Aejaz Akbar and Shamshuddin filed D.B. writ

Petition Nos. 438/2021 and 444/2021 respectively and after

receipt of notices by the respondents, their representations were

decided vide order dated 22.4.2021 and 5.10.2020 respectively. In

this view of the matter, this Court directed the petitioners

(Mohammad Aejaz Akbar and Shamshuddin) to amend their

(6 of 15) [CRLW-438/2021]

petitions challenging the order rejecting the representation /

application. Thus, petitioner Mohd. Aejaz Akbar has challenged the

order dated 22.4.2021, petitioner Shamshuddin has challenged the

order dated 5.10.2020, whereas petitioner Mohd. Amin has

challenged the order dated 10.7.2020 and petitioner Mohammad

Afaq has challenged the order dated 31.3.2021.

They further submitted that the conduct and behaviour

of the petitioners in jail is satisfactory and there is no complaint

against them. Their applications have been rejected in a

mechanical manner. Hence, the petitioners are entitled to be

granted 2nd parole.

On the other hand, Mr. R.D. Rastogi, Addl. Solicitor

General for Union of India (for short, 'UOI') with Mr. Akshay

Bhatnagar submits that not a single word has been averred in the

petitions as to why the order of rejection is bad and not

sustainable. He further submits that in the averment made in the

writ petitions, reference has been given to the Rajasthan Prisoners

(Release on Parole) Rules, 1958 (for short, 'the Rules of 1958') for

seeking parole, whereas these rules do not apply to the

petitioners' cases. Rather the Rules framed by the Central

Government vide Notification dt. 9.11.1955 (for short the 'Rules of

1955') apply in this case. Mr. Rastogi further submitted that parole

can be granted only in three exigencies and that too for a

maximum period of 15 days, but none of the exigencies exist in

the present case. He further submitted that the order dated

4.2.2021 passed by this Court in D.B. Criminal Writ Petition No.

515/2020 (Fazlur Rehman Sufi @ Shamim Versus State of

Rajasthan) and other connected matters granting parole to other

co-convict persons was on entirely different ground, as in their

(7 of 15) [CRLW-438/2021]

case the rejection order was said to be passed in a mechanical

manner. But in the instant case, the rejection order is well

reasoned and the authority which passed the rejection order, has

categorically observed that the petitioners' release on parole may

affect the on going trial of three co-accused prisons. He further

submits that if one is claiming parole on medical grounds, then

medical documents relating to treatment must be produced on

record, but no medical documents have been produced by the

petitioners. He further submits that the petitioners are TADA

convicts and so many lives were lost due to bomb blast case.

He further submitted that since bail cannot be granted

to the convict-petitioners, they applied for parole. Short method /

indirect method by way of parole cannot be evolved because the

petitioners are TADA convicts. Hence, the petitioners should not be

granted parole.

In support of his submissions, he has placed reliance on

the following judgments:

i) Shambhu Dayal Versus State of Rajasthan (2012) 4 WLC

233.

ii) Asfaq Versus State of Rajasthan & Ors. 2015 SCC Online

Raj. 8078

iii) State of Rajasthan Versus Mana Singh & Ors. reported in

(2002) 2 WLC 449

iv) Fazlur Rehman Sufi @ Shamim Versus State of Rajasthan &

Ors. (D.B. Cr. Writ Petition No 466/2018)

v) Mohd. Aejaz Akbar Versus State of Rajasthan & Ors. (D.B. Cr.

Writ Petition No. 494/2018)

vi) Sarafraj Mohd. Versus State of Rajasthan & Ors. (S.B. Cr.

Writ (Parole) Petition No. 867/2018

(8 of 15) [CRLW-438/2021]

vii) judgment passed by the Bombay High Court in the case of

Bashir Ahmed Usman Gani Kairullah Versus The State of

Maharashtra & Ors. - Criminal Writ Petition No. 3988/2017

viii) Sunil Fulchand Shah Versus Union of India & Ors. (2000) 3

SCC 409

ix) State of Gujarat Versus Lal Singh reported in (2016) 8 SDCC

370.

x) The Home Secretary Versus H. Nilofer Nisha (Cr. Appeal No.

144/2020)

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 Rules of 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 case of Fazlur Rahman Sufi @ Shamim

(supra). However, we are of the view that in a plea made by a

convict incarcerated in prison for more than 26 years and the

hyper technical stand taken by the Union of India that the wrong

set of rules are quoted in the averments 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 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).

(9 of 15) [CRLW-438/2021]

While considering the case of the petitioner Asfaq

[(2017) 15 SCC 55] seeking first parole, the Hon'ble Supreme

Court observed as below:-

"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

(10 of 15) [CRLW-438/2021]

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, albeit 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."

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 an 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

(11 of 15) [CRLW-438/2021]

and social ties. For this purpose he has to come out for some time

so that he is able to maintain contact with his family and society.

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 relations with his

family.

It is not in dispute that each of the writ petitioners

herein have been extended the facility of first parole 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.

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

(12 of 15) [CRLW-438/2021]

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 a convict on parole, strict

compliance to 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.

So far as the judgment passed by the Bombay High

Court in the case of Bashir Ahmed Usman Gani Kairullah (supra) is

(13 of 15) [CRLW-438/2021]

concerned, it also does not apply to the facts of the instant case

for the reason that in the said case, there were over-writing /

interpolation in the medical documents and parole was sought on

the ground of oral medication of the petitioner's wife since 9 years,

which is not the situation here in this case.

Similarly, the judgment passed by the Hon'ble Apex

Court in the case of H. Nilofer Nisha (supra) also does not apply to

the facts of the instant case because the said case was related to

maintainability of a habeas corpus petition by a person, who is

under detention.

The Division Bench of this Court {in which one of us

(Justice Prakash Gupta) was a member} vide its order dated

4.2.2021 passed in D.B. Criminal Writ Petition No. 515/2020 tilted

Fazlur Rehman Sufi @ Shamim (supra) and others, while granting

second parole to co-convicts observed as under:

"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

(14 of 15) [CRLW-438/2021]

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."

The prayers made by the petitioners for grant of parole

have been turned down in a totally mechanical manner without

referring to the facts under which each of the convict petitioners

had been granted first parole by orders passed by the Hon'ble

Supreme 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 court. It has not been

disclosed as to what were the inputs, on the basis of which the

rejection orders have been passed and a bald narration of the

gravity of offences has been made that petitioners' release would

pose a threat to the society and nation, but nothing in support

thereof has been placed on record. Jail conduct, which is said to be

satisfactory, and timely surrender after availing the first parole are

the paramount considerations. None of the rejection order refers

the conduct of the convicts during first parole. So far as convict

Mohd. Amin is concerned, his rejection order has been passed

relying on Maharashtra Prison (Bombay Parole and Furlough)

Rules, 1959, which is not applicable in the State of Rajasthan.

So far as the argument advanced by Mr. R.D. Rastogi

that no reason has been mentioned in the petitions as to why the

rejection order is unsustainable in law is concerned, we are of the

opinion that there is no legal requirement that for challenging the

rejection order, the reasons must be assigned.

The factum of on-going trial was also before the Hon'ble

Apex Court at the time of granting first parole to the petitioners

(15 of 15) [CRLW-438/2021]

as well as before this Court at the time of granting second parole

to the co-convicts.

So far as the argument of Mr. Rastogi that no medical

related documents have been annexed with the application /

petition, we find that no such document was also available before

the Hon'ble Apex Court and the Hon'ble Apex Court granted first

parole of 21 days to the petitioners.

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.

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 the 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.

(CHANDRA KUMAR SONGARA),J (PRAKASH GUPTA),J

DILIP KHANDELWAL /15

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