Allowed

Salim Hasan Madari (C-9194) v. the State of Maharashtra

Bombay HC5 Apr 2018WP/306/2018

Case brief

AI extract

What is this about?

The High Court held that pendency of an appeal is not a valid ground to deny furlough leave as filing an appeal is a statutory right. The court distinguished the cited precedent as it involved TADA convicts and quashed rejection orders.

What did the court decide?

Impugned orders rejecting furlough were quashed and the petitioner was directed to be released on furlough leave expeditiously.

Salim Hasan Madari (C-9194) Vs the State of… — Pension and Retirement Benefits | Bombay HC (2018)

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(Judgment) (1) Cri. W.P. No. 0306 of 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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Criminal Writ Petition No. 0306 of 2018

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District : Nashik Salim Hasan Madari, Age : Major, Occupation : convict No. C/9194, R/o. At Nashik Road Central Prison, Nashik. .. Petitioner. versus 1. The State of Maharashtra, Through Principal Secretary, Home Department, Mantralaya, Mumbai. 2. The Maharashtra Prison Department, Additional Director General of Police and Inspector General of Prison & Correctional Services, Pune - 1. 3. The Deputy Inspector General (Prison), Central Prison, Harsool, Aurangabad. 4. The Superintendent of Prison, Nashik Road Central Prison, Nashik. .. Respondents. ........... Mrs. Almas Shaikh Riyaz, Advocate (appointed), for the petitioner.

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Mr. D.R. Kale, Addl. Public Prosecutor, for respondent nos.01 to 04.

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...........

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(Judgment) (2) Cri. W.P. No. 0306 of 2018

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CORAM : PRASANNA B. VARALE &
 SMT. VIBHA KANKANWADI, JJ.

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 DATE : 05TH APRIL 2018

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ORAL JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :

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Heard learned Advocate (appointed) for the
petitioner and the learned Addl. Public Prosecutor
for the respondents.

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02.By the present petition, the petitioner -
convict no. C/9194 is challenging the order dated
03.06.2017 passed by respondent no.03 i.e. Deputy
Inspector General of Prisons, Aurangabad, thereby
rejecting the application made by the petitioner
seeking furlough leave. The petitioner has also
challenged the order dated 03.11.2017 passed by
respondent no.02 i.e. Additional D.G.P. & Inspector
General of Prisons, Pune, thereby rejecting the
appeal preferred by the petitioner.

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03. The prayer of the petitioner seeking furlough leave was rejected mainly on the grounds viz. (a) The appeal preferred by the petitioner against his conviction and sentence is pending before this Court (b) In view of the judgment of this Court at principal seat, in Criminal Writ Petition No. 4017 of 2016, in the matter of Smt. Rubina Suleman Memon Vs. The State of Maharashtra & others , dated 22nd December 2016, the petitioner is not entitled for furlough leave, and (c) There is no recommendation of Jail Superintendent.

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(Judgment) (3) Cri. W.P. No. 0306 of 2018

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04. Learned Advocate (appointed) for the petitioner submitted that the grounds mentioned for rejection of furlough leave are vague and unsustainable. She submits, that the petitioner having statutory right of filing an appeal against his conviction and sentence, said ground is untenable. She further submits, that the ratio of judgment of this Court in the case of Smt. Rubina Suleman Memon (supra) is not applicable to the facts of the present case as convict in the said case was undergoing sentence for conviction under the Terrorist and Destructive Activities Act, 1987. She has, therefore, urged that the petition be allowed and the petitioner may be released on furlough leave.

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05. Learned Advocate for the petitioner further submitted that in so far as the first ground in respect of pendency of appeal, is concerned, the Division Bench of this Court at Nagpur Bench was pleased to consider this very aspect. Our attention is invited to the copy of an unreported order dated April 26, 2017, in Criminal Writ Petition (CWP) No. 196 of 2017 and Criminal Writ Petition (CWP) No. 97 of 2017, in the matter of Arun s/o. Gulab Gawli & another Vs. State of Maharashtra , through its Secretary, Home Department & others. It would be useful to refer observations of the Division Bench in paras 2 and 3 of the order, which read as under :

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(Judgment) (4) Cri. W.P. No. 0306 of 2018

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"2. The learned PP submits that the appropriate Authorities have advised State Government which is taking some steps and those steps may result in amendment to the Rules. She seeks time till after vacation to make a definite statement in this respect.

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3. The learned Senior Advocate has no objection provided the request of the petitioner for grant of furlough in Criminal Writ Petition No. 97 of 2017 is considered. He also adds that from the response of the respondents, it appears that they have accepted the inconsistency or arbitrariness in the provision which denies furlough to the prisoners whose appeal challenging conviction is pending and bail application is rejected by the High Court. " (Emphasis supplied)

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The Division Bench, in view of the statement made
before the Court and on considering other grounds,
namely, a vague police report and the track of leave
of the petitioner, found that there was no reason to
deny furlough leave. The Division Bench accordingly
directed release of the petitioner in Criminal Writ
Petition No. 97 of 2017 on furlough leave, within two
weeks from the date of the order, after obtaining
appropriate bonds, undertakings from the convict and
his relatives / sureties.

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06.Learned Addl. Public Prosecutor appearing
for the respondents has opposed the petition and
urged that the petition be dismissed.

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(Judgment) (5) Cri. W.P. No. 0306 of 2018

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07. So far as the ground, that the appeal preferred by the petitioner against his conviction and sentence is pending, as rightly submitted by the learned Advocate for the petitioner, the ground is unsustainable. Filing of appeal against conviction and sentence is a statutory right of a convict. It has no nexus with grant or rejection of furlough leave. Similarly, the ratio of the judgment of this Court in the case of Smt. Rubina Suleman Memon (supra) is not applicable to the present case because the convict in the said case was undergoing sentence for conviction under the provisions of the Terrorist and Destructive Activities Act, 1987, ad rigors of the notification dated 23.02.2012, more particularly, Sub-Rule 13 of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959, were fully applicable to the petitioner therein. Such is not the case of the present petitioner. The petitioner is not suffering punishment for any act under the provisions of TADA. The last ground, that there is no recommendation of the Jail Superintendent, is also untenable. The leave sanctioning authority may suo motu call remarks regarding recommendation or otherwise from the Jail Superintendent.

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08.There is no dispute, that the very circular
which is referred to in the order prevents the
prisoner to avail the benefit and statement was made
before the Division Bench at Nagpur Bench, that the
State Government is in process to re-think the rule

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(Judgment) (6) Cri. W.P. No. 0306 of 2018

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and if necessary, cause an amendment to rule. We may also take note of the decision by Division Bench of this Court at this Bench, in Criminal Writ Petition No. 1010 of 2017, in the matter of Shivaji Vs. The State of Maharashtra & others , decided on 13.10.2017. So also, a useful reference can be made to the decision of Division Bench of this Court at this Bench, in Criminal Writ Petition No. 1237 of 2017, in the matter of Hariom Vijay Pandey Vs. The Superintendent & others decided on the same day. In both these petitions, the Division Bench of this Court had taken note of the above referred judgment of the Division Bench at Nagpur Bench, in the matter of Arun s/o. Gulab Gawli & another (supra) and the benefit was then given to the petitioners therein.

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09. Further, we may refer to a Full Bench judgment of this Court at principal seat in the matter of S. Sant Singh @ Pilli Singh Ajit Singh Kalyani Vs. Secretary, Home Department, Govt. of Maharashtra & others [2006 (2) Mh.L.J. 422 = 2006(1) Bom.C.R.(Cri.) 743] . Though this is the case which was pronounced prior to Government Circular dated 26.08.2016, yet it appears that at that time also, there was similar provision, wherein it has been observed in paras 26 and 27 of the judgment, thus :

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"26. The provisions of law clearly disclose that once a person is convicted and sentence is imposed by the Court, and such person is sent to jail as a prisoner the execution of

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(Judgment) (7) Cri. W.P. No. 0306 of 2018

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the sentence imposed upon him is to be done by the appropriate Government in accordance with the rules framed in that regard. Once a person is in prison he would be governed by the Prisons Act, and the Rules framed thereunder. The Prison Rules clearly provide for grant of parole. It is for the Competent Authority or the Government to decide as to whether any Parole for any particular period is to be granted to the convicts undergoing imprisonment period and on the conditions as may be fixed. It is, therefore, clear that merely because a convict prefers an appeal before the Appellate Court, that would not divest the Government of its powers under the Prison Act to deal with the management of the convict by following the rules framed under the said Act.

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From this, it is clear that the powers of the State to grant Parole are not fettered even if the appeal of the convict is pending before the Court. Thus, the Competent Authority or the Government would have the legal competence to entertain an application for parole by following the procedure set out under the Prison Rules to meet the contingencies stated therein. The exercise of such power would not be in any way be in conflict with the powers exercised under section 389 and/or Section 432 of the Code of Criminal Procedure. It is also evident that the amendments carried out in this scheme of Rules 19 and 25 in the year 1989 have provided for adequate safeguards so as to ensure that the benefit of parole leave is not misused or abused so as to defeat or nullify the Courts order passed under Section 389 of the Code of Criminal Procedure as was noticed in Jayant Veerappa Shetty Vs. State of Maharashtra [1986(1) Bom.C.R.311 = 1986 Cri.L.J. 1298]. "

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Thus, we find that this reason cannot be a hurdle in

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(Judgment) (8) Cri. W.P. No. 0306 of 2018

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the way of the petitioner.

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10.In the facts and circumstances, in our
opinion, learned Advocate for the petitioner has made
out a case for grant of relief as prayed in the
petition.

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11.In the result, the criminal writ petition is
allowed.

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The impugned order dated 03.06.2017 passed by
respondent no.03 i.e. Deputy Inspector General of
Prisons, Aurangabad, so also order dated 03.11.2017
passed by respondent no.02 i.e. Additional D.G.P. &
Inspector General of Prisons, Pune,are quashed and
set aside. The petitioner is directed to be released
on furlough leave, as expeditiously as possible,
after complying all necessary formalities.

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12.Learned Advocate Mrs. Almas Shaikh Riyaz was
appointed to represent the case of the petitioner.
Her fees is quantified at Rs. 3,000/- [Rupees three
thousand].

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( Smt. Vibha Kankanwadi ) ( Prasanna B. Varale )
JUDGE JUDGE

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...........

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puranik / CRIWP306.18

Salim Hasan Madari (C-9194) v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Salim Hasan Madari (C-9194) v. the State of Maharashtra

Case brief

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What did the court decide?

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