Dismissed

Salim Rahim Shaikh v. the State of Maharashtra

Bombay HC26 Jul 2016WP/1433/2014

Case brief

AI extract

What is this about?

This Court dismissed a criminal writ petition challenging the rejection of the petitioner's furlough application under Rule 4(13) of The Prisons (Bombay Furlough and Parole) Rules, 1959. Relying on Sharad Shelake and noting that furlough is not an absolute right, the Court held the petitioner was ineligible as a convicted terrorist and discharged the rule.

What did the court decide?

Rule 4(13) was discharged as the petitioner was ineligible for furlough as a convicted terrorist.

Salim Rahim Shaikh Vs the State of Maharashtra — Pension and Retirement Benefits | Bombay HC (2016)

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 1433 OF 2014

Salim Rahim Shaikh

.. Petitioner

Versus

The State of Maharashtra

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.. Respondent

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Appearances
Ms. Rohini Dandekar	Advocate (appointed) for the Petitioner
Mr. H.J. Dedia	APP for the State

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CORAM : SMT. V.K. TAHILRAMANI &

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MRS. MRIDULA BHATKAR, JJ. DATE : JULY 26, 2016.

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ORAL ORDER [PER SMT. V.K. TAHILRAMANI, J.] :

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Heard both sides.

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Rule. By consent, Rule is made returnable forthwith.

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The petitioner preferred an application for furlough on

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17.6.2013. The said application came to be rejected by

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order dated 4.12.2013. The appeal preferred against the

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said order of rejection came to be dismissed by order dated

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15.2.2014, hence, this petition. The application of the

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petitioner came to be rejected mainly in view of Rule 4(13) of

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The Prisons (Bombay Furlough and Parole) Rules, 1959.

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In view of Notification dated 23.2.2012, sub-rule (13) of

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Rule 4 was added to The Prisons (Bombay Furlough and

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Parole) Rules, 1959. Sub-rule (13) of Rule 4 reads as under:-

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"4. When prisoners shall not be granted furlough:-

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(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 foreigner prisoners;"

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It is an admitted fact that the petitioner has been

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convicted in a bomb blast case. In this view of the matter,

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the petitioner can certainly be said to be falling in the category of terrorist.

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The vires of Notification dated 23.2.2012 was

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challenged before this Court in the case of Sharad

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Devaram Shelake Vs. The State of Maharashtra¹ .

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1 Criminal Writ Petition No. 4034 of 2014 decided on 28.4.2016 [ Coram : Smt. V.K. Tahilramani & Smt. Anuja Prabhudessai, JJ. ]

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wherein this Court by its order negatived the said contention

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and held that sub-rule (13) of Rule 4 is valid and intra vires. As stated earlier, the application of the petitioner for furlough came to be rejected mainly in view of Rule 4(13). Thus, we can find no fault with the order rejecting the application of the petitioner for furlough.

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Further the case of the petitioner is that it is the right of

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a prisoner to be released on furlough. As far as this contention that being released on furlough is a matter of right is concerned, the Supreme Court in the case of State

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of Maharashtra Vs. Suresh Pandurang Darvakar² has observed that, ".......... But release on furlough cannot be said to be an absolute right of the prisoner as culled out from

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Rule. 17." Rule 17 reads as under:-

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"17. Nothing in these rules shall be construed as conferring a legal right on a prisoner to claim release on furlough."

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This Court in the case of Sharad Devaram Shelake

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Vs. The State of Maharashtra³ has also held that the

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2 AIR 2006 SC 2471 : 2006 ALL M.R. (Cri) 1839 (S.C.)

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3 Criminal Writ Petition No. 4034 of 2014 decided on 28.4.2016 [ Coram : Smt. V.K. Tahilramani & Smt. Anuja Prabhudessai, JJ. ]

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release on furlough cannot be said to be an absolute right of

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the prisoner.

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In any event, it is seen that the petitioner preferred an application for furlough in the year 2013. Note (3) of Rule 2

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in Chapter XXXVII of The Prisons (Bombay Furlough and Parole) Rules,1959 which deals with parole and furlough states that, "If at any time, a prisoner who could have been granted furlough is either not granted or is refused the same, the period for which he could have been granted the furlough shall not be carried forward but shall lapse."

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In view of the above rule, it is clear that the period of furlough which was being sought in the year 2013, cannot be carried forward to the next year. In this view of the matter, we do not find that this is a fit case to interfere, hence, rule

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