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2018 DIGILAW 2272 (BOM)

Asgar Kadar Sheikh v. Deputy Inspector General

2018-09-18

ARUN D.UPADHYE, R.K.DESHPANDE

body2018
JUDGMENT R.K. Deshpande, J. - Rule made returnable forthwith. Heard finally with the consent of the learned counsels appearing for the parties. 2. The challenge in this petition is to the order dated 05/04/2017 passed by the respondent No.1 - Deputy Inspector General (Prisons), Nagpur rejecting the claim of the petitioner for grant of furlough leave for a period of 28 days. The rejection of the claim is based upon Rule 4 (13) of the Prisons (Bombay Furlough and Parole) Rules, 1959 as amended by the Government Notification dated 26/08/2016 which is reproduced below. "4. When prisoners shall not be granted furlough. The following categories of prisoners shall not be considered for release on furlough :- (1) ..... (13) Prisoners convicted for offence such as dacoity, terrorist crimes, kidnapping, smuggling including those convicted under the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985) and foreign prisoners." 3. Shri Joshi, learned A.P.P. invites our attention to the stand taken by the respondents that the petitioner is a convict under 1997 Bombay Blast Case and was convicted not only for the offence of murder under Section 302 of the Indian Penal Code, but also for the criminal conspiracy under Section 120B of the Indian Penal Code. According to the respondents, the conviction of the petitioner is covered by the expression "Terrorist Crimes" under Rule 4(13) reproduced above and therefore, complete bar operates to release him on parole or furlough leave. 4. Undisputedly, the petitioner is sentenced for life imprisonment and on the date of making an application for furlough leave, he had undergone 18 years 8 months and 2 days imprisonment. The order impugned itself states that previously, the petitioner was released on furlough and parole leave on 5 and 4 occasions respectively. It states that the recommendation by the authorities is for his release on furlough leave observing that there would be no issue of peace and tranquility. The authorities have observed that there is an assurance by sureties that the petitioner shall return back to prison upon completion of the period of leave. The rejection is only on the ground of bar under Rule 4 (13) of the Rules. 5. In Criminal Writ Petition No.234/2018, we have passed a speaking order making a reference to the Larger Bench to decide the question of law which is reproduced below. The rejection is only on the ground of bar under Rule 4 (13) of the Rules. 5. In Criminal Writ Petition No.234/2018, we have passed a speaking order making a reference to the Larger Bench to decide the question of law which is reproduced below. "Whether Rule 4(13) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959, introduced by the notification dated 26/08/2016, creating an absolute bar to claim release on furlough leave and consequently Rule 19(2)(B)(i) of the Rules of 1959 to claim release on parole leave to the convict for the offence of rape is violative of Articles 14 and 21 of the Constitution, particularly when the offenders or convicts in other serious offences are entitled to such leave ? It is urged by the learned A.P.P. that the matter is not yet decided by the Larger Bench and hence, the petitioner would not be entitled for furlough leave. 6. In the normal course, we would have chosen to wait for decision of the Larger Bench as the question referred may also cover the cases of "Terrorist Crimes" as specified under Rule 4 (13) of the Rules. However, in the facts and circumstances of this case, the petitioner who was released on parole or furlough leave, as per the orders passed by this Court, did not misuse the liberty granted to him. The recommendation is for grant of furlough leave and the report suggests that there is no possibility of breach of peace and tranquility. There is an assurance that the petitioner shall return to the prison on expiry of leave period. 7. Shri Joshi, learned A.P.P. has urged that when the petitioner was released on the earlier occasion on parole or furlough leave, the question as to whether he was covered by the "Terrorist Crimes" did not fall for consideration as Rule 4(13) was introduced on 23/02/2012. We have also seen the decision of this Court on 13th April, 2015 in Criminal Writ Petition No.223/2015 filed by one of the coaccused before this Court. This was the petition decided after Rule 4(13) came into force. Though it was not the plea raised based upon Rule 4(13), nevertheless the decision was to release the petitioner. We have also seen the decision of this Court on 13th April, 2015 in Criminal Writ Petition No.223/2015 filed by one of the coaccused before this Court. This was the petition decided after Rule 4(13) came into force. Though it was not the plea raised based upon Rule 4(13), nevertheless the decision was to release the petitioner. Even in other cases, the coaccused in the same crime were released by this Court in Criminal Writ Petition No.2027/2017 filed at Principal Seat of this Court, Criminal Writ Petition Nos.1293/2017 and 446/2018 decided by the Bench at Aurangabad on 24/11/2017 and 04/07/2018. 8. We, therefore, do not find any impediment in releasing the petitioner on furlough leave. 9. In the result, this writ petition is allowed. The order dated 05/04/2017 rejecting the claim of the petitioner for furlough leave is hereby quashed and set aside. The petitioner is held entitled to release on furlough leave for 28 days on such terms and conditions, as the authority shall deem fit and proper, in the facts and circumstances of this case to secure the presence of the petitioner after expiry of leave period. If the petitioner commits an act of misconduct or fails to return on due date or commits offences, the same shall affect his release on the next occasions. The petitioner shall have to attend the concerned Police Station on every alternate day. 10. Rule is made absolute in the aforesaid terms. No order as to costs.