Emergency Parole cannot be granted to criminals accused of serious offences: Bombay High Court

 on 28 06 2021 on 22 03 11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR.NAGPUR BENCH NAGPUR.CRIMINAL WRIT PETITION NO. 253 2021CRIMINAL WRIT PETITION NO. 253 20211]1]Asgar Kadar SheikhAsgar Kadar Sheikh Convict No. 6473Convict No. 64732]2]Mohd Yakub Abdul Majid NagulMohd Yakub Abdul Majid Nagul Convict No. C 8774 Convict No. C 8774 Both Presently at Central Prison Both Presently at Central Prison NagpurNagpur….…. PETITIONER(S)PETITIONER(S) VERSUS VERSUS Jail SuperintendentJail Superintendent Nagpur Central Jail NagpurNagpur Central Jail Nagpur…. …. RESPONDENTRESPONDENT Shri M.N. Ali Advocate for the petitioner(s)Shri M.N. Ali Advocate for the petitioner(s)Mrs. N.R. Tripathi APP for the respondentMrs. N.R. Tripathi APP for the respondent CORAM : V.M. DESHPANDE CORAM : V.M. DESHPANDE & A& A MIT B. BORKARMIT B. BORKAR J J JJ .. JUNE 19JUNE 19 2021 2021 JUDGMENTJUDGMENT ::1]Heard. 2]RULE. Rule made returnable forthwith. on 28 06 2021 on 22 03 22 3]This case illustrates an attempt on the part of the advocate forthe petitioners by making misleading statement which on the first blushappears to be innocuous but on deeper scrutiny reveals an attempt to twistfacts to get favourable relief for his clients. 4]The petitioners are convicts for offences punishable underSections 302 304 307 324 326 435 120B and 34 of the Indian PenalCode Section 151 of the Railways Act and Section 4 of the Protection ofPublic Properties Act. The said case is popularly known as 1996 BombayBlast case. After having undergone the actual imprisonment of 23 years bythe petitioner no. 1 and 18 years by the petitioner no. 2 the petitioners filedan application before the respondent for their release on emergency paroleas per the amended provisions of Rule 19(1)(C)(ii) of the MaharashtraPrisonsRules 1959. The application has beenrejected by the impugned order dated 30 06 2020 mainly on the groundthat the petitioners having been convicted under the Special Acts are notentitled to the benefit of emergency parole. 5]The petitioners have therefore filed the present petitionchallenging the order of rejection of emergency parole. The petitioners inpara no. 17 of the petition have made categorical statement which reads asunder : on 28 06 2021 on 22 03 33 “17. It is submitted that petitioners are eligible to be releasedon emergency parole for a period of 45 days as they havesurrendered on due date on last two occasions and there is noother embargo on their release. Therefore petitioners deserveto be released on emergency parole for a period of 45 days.” 6]It needs to be noted that the petitioners in para no. 3 of thepetition have made a statement that the petitioner no. 1 has been releasedon parole and on each occasion the petitioner no. 1 had surrendered on duedate without there being a single day’s delay and in para no. 6 of the petitionhave made a statement that the petitioner no. 2 had surrendered late by 11days. 7]This Court on 18 03 2021 issued notice to the respondent. Therespondent has filed affidavit in reply stating that insofar as the petitionerno. 1 is concerned while he was released on parole leave of 10 days on20 05 2011 he surrendered late by 1 day. It is stated that the petitionerno. 2 while he was released on parole leave of 30 days on 01 05 2010surrendered himself late by 11 days. It is further stated that as per theprovisions in Maharashtra Government Circular dated 08 05 2020 both thepetitioners are not entitled to emergency leave for Covid 19 pandemic. on 28 06 2021 on 22 03 44 8]Shri M.N. Ali Advocate for the petitioners placed reliance onunreported judgment of this Court in Criminal W. P. No. 488 2020by which this courtremanded back the case of the co accused to the jail authorities for freshconsideration. It is submitted that the petitioner in the said case being the co convict along with present petitioners same order needs to be passed in thepresent petition. 9]Relying on the statement made by learned advocate for thepetitioners and to save the judicial time in dictating the judgment in openCourt it was pronounced that the petition stands partly allowed and similarorder as passed in Criminal W.P. No. 488 2020 would be passed. 10]While dictating the judgment and on careful scrutiny of theannexures alongwith the averments in the petition it is revealed that boththe petitioners had surrendered late on earlier occasions. The petitioner no. 1surrendered late by 1 day and the petitioner no. 2 surrendered late by 11days. The Division Bench of this Court in the un reported judgment in thecase of Milind Ashok Patil & ors. vs. State of Maharashtra & Ors. in CriminalWrit Petition ASDB LD VC No. 65 2020 has clearly laid down that thoseconvicts who had surrendered late on earlier occasions are not entitled toemergency parole. Para no. 15 of the said judgment reads as under : on 28 06 2021 on 22 03 55 “15. Thus it is clear that the condition mentioned in theamended clause(ii) of convict returning back on time onlast 2 releases will be applicable only if the convict is releasedon 2 occasions either on furlough leave or parole leave or theirapplications are rejected on the ground that they are habitualoffenders or likely to abscond. In this behalf it is significant tonote that the difference between Clauseand(i) of the amendment which is applicable to convictedprisoners whose maximum punishment is 7 years or lessprovides that “application shall be favourably considered” whereas clause(ii) which is applicable to the prisonerswhose maximum sentence is above 7 years provides that“application shall be appropriately considered”. To ensure thatsuch convicts should not abscond the said amended provisionstipulates that once in every 30 days the convicted prisonersshall report to the concerned police station within whosejurisdiction they are residing. If the convicts are not released on2 occasions either on furlough or parole and or their previousapplications are not rejected either on the ground that they arehabitual offenders or likely to abscond then the Authorities canstill consider their applications for release on emergency parole.However we make it clear that if the convicts are released on 2occasions or on 1 occasion either on parole or furloughpreviously and they are late in surrendering then they are notentitled for the benefit of the emergency parole. It is furtherclarified that the Authorities can impose suitable stringentconditions on the convicts who were never released on parole orfurlough or released on 1 occasion and returned back within on 28 06 2021 on 22 03 66 time if they are otherwise entitled for the benefit of emergencyparole.” The Full Bench of this Court in the case of Pintu Uttam Sonalevs. State of Maharashtra reported in 2020Mh.L.J. 627 in para no. 19 hasobserved as under: “19. In our opinion the language of the proviso clearly sets outthat the provisions sub ruleof Rule 19(1)of the 1959 Rules would not apply to the prisoners convicted for various economicoffences or bank scams or offences under some Special Acts(other than IPC) and some of which are illustratively mentionedby using the word "like" when the proviso refers to the SpecialActs namely MCOC PMLA MPID NDPS UAPA etc. Thisillustrative reference is further qualified by use of the word "etc"which indicates that the reference to these Special Acts is notexhaustive. The proviso using the words "like" and "etc" is asignificant indication of the legislative intent. The intention andobject to insert the proviso appears to be quite clear that theprovisions of the emergency parole as introduced by sub rule(C) would not apply to the prisoners convicted of seriousoffences under the different Special Acts and who fall within thecategory as specified in sub rule C(ii).”11]We therefore placed the present matter on board for freshhearing after having noticed that the petitioners are not eligible for being on 28 06 2021 on 22 03 77 released on emergency parole in view of judgment in the case of MilindAshok Patiland Pintu Uttam SonaleIrish Law Reports at p. 313: “The advocate is a representative but not a delegate. He gives tohis client the benefit of his learning his talents and hisjudgment but all through he never forgets what he owes tohimself and to others. He will not knowingly misstate the law he will not wilfully misstate the facts though it be to gain thecase for his client. He will ever bear in mind that if he be anadvocate of an individual and retained and remunerated ofteninadequately for valuable services yet he has a prior andperpetual retainer on behalf of truth and justice and there is noCrown or other license which in any case or for any party orpurpose can discharge him from that primary and paramountretainer.” 16]This Court has time and again emphasized the need of citingjudgments which may be against the interest of client by rising to theoccasion as an officer of the Court. The case of Heena Nikhil Dharia vs.Kokilaben Kirtikumar Nayak reported in2 Bom CR 65 is one of suchcase where single judge of this Courtin his distinctive styleobserved as under: “35. Wholly unrelated to any preliminary issue or the questionof limitation or to any estate partition or administration action is the decision of AM Khanwilkar J.inChandrakant Govind Sutar v. MK AssociatesMh.L.J.1011] Counsel for the petitioner raised certain contentions on on 28 06 2021 on 22 03 1212 the maintainability of a civil revision application. Khanwilkar J.pronounced his judgement in open Court finding for thepetitioner. Immediately thereafter counsel for the petitionerbrought to the Court s notice that certain relevant decisions onmaintainability had not been placed. He requested that thejudgement be not signed and instead kept for re hearing on thequestion of maintainability. At that fresh hearing petitioner scounsel placed decisions that clinched the issue — against thepetitioner. The civil revision application was dismissed. Thecounsel in question was A.S. Oka now Mr. Justice Oka and thisis what Khanwilkar J. was moved to observe in the concludingparagraph of his judgement: 9. While parting I would like to make a special mentionregarding the fairness of Mr. Oka Advocate. He conducted thematter with a sense of detachment. In his own inimitable stylehe did the wonderful act of balancing of his duty to his clientand as an officer of the Court concerned in the administration ofjustice. He has fully discharged his overriding duty to the Courtto the standards of his profession and to the public by notwithholding authorities which go against his client. As LordDenning MR in Randel v. W.3 All E. R. 657 observed:“Counsel has time and again to choose between his duty to hisclient and his duty to the Court. This is a conflict often difficultto resolve and he should not be under pressure to decide itwrongly. Whereas when the Advocate puts his first duty to theCourt he has nothing to fear. But it is a mistake to suppose thatheis the mouthpiece of his client to say what hewants. The Code which obligates the Advocate to disregard the on 28 06 2021 on 22 03 1313 instructions of his client if they conflict with his duty to theCourt is not a code of law — it is a code of honour. If he breaksit he is offending against the rules of the profession and issubject to its discipline.” This view is quoted with approval by the Apex Court in Re. T.V.Choudhary 3 SCR 146 (E.S. Reddi v. Chief Secretary Government of AP).” 17]In view of aforesaid facts and circumstances the petitionershaving surrendered late and having been convicted under the Special Actsnamely the Railways Act and the Protection of Public Properties Act which inthe context of other offences alleged against the petitioners become seriousoffences are not eligible for being released on emergency parole. 18]We are therefore satisfied that there is no merit in the petitionand the same is dismissed. Rule is discharged.((JUDGE)JUDGE)((JUDGE)JUDGE)ANSARIANSARI 

Summary: Prisoner convicted of serious offences shall not be granted emergency parole, held, a division bench of Justice VM Deshpande and Justice Amit B Borkar, while adjudicating the matter in Asgar Kadar Sheikh v. Mohd. Yakub Abdul Majid Nagul; [CRIMINAL WRIT PETITION NO. 253/2021]. The petitioners are convicts for offences punishable under Sections 302, 304, 307, 324, 326, 435, 120B and 34 of the Indian Penal Code, Section 151 of the Railways Act and Section 4 of the Protection of Public Properties Act. The said case is popularly known as 1996 Bombay Blast case. After having undergone the actual imprisonment of 23 years by the petitioner no. 1 and 18 years by the petitioner no. 2, the petitioners filed an application before the respondent for their release on emergency parole as per the amended provisions of Rule 19(1)(C)(ii) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959. The application has been rejected by the impugned order dated 30/06/2020 mainly on the ground that the petitioners having been convicted under the Special Acts are not entitled to the benefit of emergency parole. The petitioners have therefore filed the present petition challenging the order of rejection of emergency parole. The petitioners have made categorical statement which reads as under: – “It is submitted that, petitioners are eligible to be released on emergency parole for a period of 45 days as they have surrendered on due date on last two occasions and there is no other embargo on their release. Therefore, petitioners deserve to be released on emergency parole for a period of 45 days.” Shri M.N. Ali, Advocate for the petitioners placed reliance on unreported judgment of this Court in Criminal W. P. No. 488/2020 (Mohd. Faruque Mohd. Yusuf vs. State of Maharashtra &amp; ors.) by which this court remanded back the case of the co-accused to the jail authorities for fresh consideration. It is submitted that the petitioner in the said case being the co-convict along with present petitioners, same order needs to be passed in the present petition.