Conviction is not a nexus for parole: Bombay High Court

 on 25 01 2021 on 22 03 1} criapln2073.20 drpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 2073 OF 2020INCRIMINAL WRIT PETITION NO.1362 OF 2020The State of Maharashtra APPLICANTThrough Superintendent Nashik Central Prison NashikVERSUSGuddu @ Kansha Wahab Shaikh RESPONDENTAge 21 years Occ LabourR o Near Datta Temple Tambapura JalgaonTaluka and District Jalgaonin Bombay High Court Aurangabad Bench aggrieved by an order rejecting hisapplication for emergency parole passed by Superintendent ofCentral Prison Nashik on 28th September 2020. Parole leave tosaid Guddu had been refused by the Superintendent him havingnot availed parole or furlough leave on two occasions and that hehad not completed three years in jail prior to his application foremergency parole under Rule 19(C) of the PrisonsRules 1959introducedinto Rule 19 under the Amendment Rules of 2020 in the wake ofCOVID 19 pandemic finding that in the circumstances he wouldnot be eligible for release on emergency parole leave.3.The criminal writ petition had been allowed grantingemergency parole leave to Guddu pursuant to Rule 19(C) ofthe Parole Rules.Subsequently criminal application No. 20720 hadbeen moved by the State contending that Aurangabad Bench ofhigh court would not have jurisdiction to entertain the criminal on 25 01 2021 on 22 03 3} criapln2073.20 writ petition the order of rejection of emergency parole beingpassed at Nashik by the Central Jail Superintendent havingregard to orders passed by co ordinate benches on 8th August 2019 in criminal writ petition No. 10919 and 22ndJanuary 2020 in criminal writ petitions No. 18 and 120viz “Baldev Baliram Lonari V s State of Maharashtra” and“Samadhan Pandit Choudhary and Umesh Ishwar Patil V s theState of Maharashtra and Others” respectively. It had beencontended in the orders passed in the matters of “Baldev” and“Samadhan”it had been considered by two divisionbenches that when order impugned is passed by an authority ofprison in a particular district not covered by jurisdiction ofAurangabad Bench of high court aggrieved convict would not beable to file proceedings in Aurangabad Bench.It appears that said Guddu had instructed to state that hewould file a fresh application for emergency parole under Rule 19(1)of the Parole Rules as soon as he completes three yearsin jail while he had completed about two years and eightmonths. The division bench having regard to aforesaid hadthought it proper in the circumstances to recall order dated 26thOctober 2020 in criminal writ petition No. 13620 to the on 25 01 2021 on 22 03 4} criapln2073.20 extent of emergency parole and had observed that orderallowing the criminal writ petition would be rendered infructuous.It appears that learned advocate for the prisoner convicthad submitted before the division bench that convicts aggrievedby rejection of their application either for furlough parole emergency parole leave should have no territoriallimits restrictions while it is within the powers of prisonauthorities their discretion administration to locate and re locatethe convicts to any jail in Maharashtra and had in justificationreferred to some instances. The division bench thought those tobe logical while furlough parole been a kind of concession.The division bench has further considered with respect tothe view emerging under orders dated 8th August 2019 and 22ndJanuary 2020 in the cases of “Baldev” and “Samadhan”in the peculiar facts and circumstances of the cases underCOVID 19 pandemic as under:“ though there could not be a choice for a convict to choose a Forum cases in which the convicts were convicted by the Courts amenableto the jurisdiction of a particular Bench should be granted the libertyto approach the same Bench or to the Bench at which place the orderof rejection of furlough parole leave has been passed for challengingthe order. ” on 25 01 2021 on 22 03 5} criapln2073.20 4.Aforesaid had been followed by illustration if “A” isconvicted by a competent court at Nandurbar and said convict isundergoing sentence at Kolhapur Central Jail and if hisapplication for emergency parole leave is rejected by the jailSuperintendent he should have liberty to approach the highcourt either at the Principal seat at Mumbai or AurangabadBench of high court as Nandurbar district falls within the area ofjurisdiction of Aurangabad Bench of the high court feeling thatsaid prisoner should not be compelled to suffer rigours oflitigation on the point of jurisdiction in the backdrop of anextraordinary situation of COVID 19. The division bench hasobserved that it had not been able to align itself with the viewtaken by the division bench under order dated 22nd January 2020 in “Samadhan’s” caseand as such followingquestion has been framed which is referred to full bench “ Whether a convict prisoner can challenge the rejection of his paroleapplication only before the Forum of this Court having jurisdictionover the district in which the rejection order was passed and isprecluded from approaching the bench having jurisdiction over thedistrict in which the Trial Court convicting him her is situated ”5.Matter accordingly is placed before us.Before proceeding to deal with the question it would beappropriate to take into account orders passed by two division on 25 01 2021 on 22 03 6} criapln2073.20 benches one in criminal writ petition No. 10919 and theother in criminal writ petitions No. 18 and 120.The division bench in criminal writ petition No. 1091 of2019 in Baldev’s casewhich pertains to grant offurlough leave while the petitioner had been lodged in NashikCentral Prison had considered that local jurisdiction ofAurangabad Bench of high court is prescribed and saidjurisdiction could cover only the districts which are notified inthis respect whereas the Parole Rules show that matter is to beprocessed by jail authority which is to take decision after receiptof reports as contemplated under the Rules since the prisoner islodged in a particular jail the matter arises from said jail. Thereis no vested right to prisoner to get furlough leave. The court isexpected to go with the presumption that matter arises fromlocal area of a particular jail. Since Nashik jail or Nashik districtis not covered under the local jurisdiction of Aurangabad Bench it purported to hold that Aurangabad Bench has no jurisdictionover the matter and had rejected application for modification oforder passed by jail authority at Nashik dated 5th February 2019.Cases of “Samadhan and Umesh” in Criminal writ petitionsNo. 18 and 120 are also in respect of rejection offurlough leave by prison authorities at Nashik convicts being put on 25 01 2021 on 22 03 7} criapln2073.20 up in Nashik jail. The division bench in said matters hadadverted to that prior to the decisions in “Baldev” and“Samadhan”it appears that this bench had dealt withmatters arising out of orders passed by jail authorities at Nashikand had granted reliefs to some convicts prisoners probably inthe circumstances that they were convicted and sentenced bythe courts over which this bench has jurisdiction and or theInspector GeneralAurangabad being the authorityhaving jurisdiction over Nashik Prison had also weighed. Albeit ithad been considered that point of jurisdiction was not consideredin said proceedings.The division bench in paragraph No.6 of the judgment hasobserved thus “ 6. The decision of the criminal case or the orders made during thependency of criminal case by the courts over which this Court hasterritorial jurisdiction can be definitely considered by this Court invarious proceedings. However after decision of the matter asprovided in Criminal Procedure Code it is up to the State to takedecision as to where in which prison the convict needs to be keptand that is the administrative matter of the State and ordinarily thisCourt does not interfere in the matters in which the State takes thedecision for administrative reasons. When a prisoner is kept atNashik Prison form there he makes applications for furlough orparole and these applications are considered by the authority likeInspector Generalas per the scheme given under Furloughand Parole rules of this State. For consideration of the application on 25 01 2021 on 22 03 8} criapln2073.20 police report is also called and the police of the concerned districtwhere the prisoner would live or where the prisoner was ordinarilyresiding before his imprisonment make enquiry with the witnesses.These circumstances also cannot have any relation to the cause ofaction. Even if the same authority like D.I.G. has jurisdiction overthe Prison from Nashimk and Prison from Aurangabad hisjurisdiction for the purpose like the present one over Nashik prisonneeds to be considered separately for the present purpose. Onlybecause the officers is designated as Inspector GeneralAurangabad all orders made by him in respect of the prisoners keptoutside of the local jurisdictions of this Court cannot be challengedin this Court. If that approach is used by the Court many matterslike the challenges against the detention orders or orders made onfurlough application which have arisen from Aurangabad would goto principal seat so as per the aforesaid Rules when application ismade by the prisoner from Nashik jail which is not within theterritorial jurisdiction of this Court and due to procedure theapplication is considered by the officer who has office inAurangabad that order cannot be challenged in this Court. ThisCourt holds that the orders made by the Inspector Generalinrespect of the prisoners kept in the prison which are not withinterritorial jurisdiction of this Court cannot be challenged in thisCourt at Aurangabad Bench. By giving exhaustive reasons inaforesaid matter of Baldev this Court has already given suchdecision on the jurisdiction of this Court. So this Court holds that itis not possible to consider and decide these two proceedings in theresult both the proceedings are dismissed. The fees of the appointedcounsel in both the matters is quantified as Rs.5000 which is total fees in both the matters and it is to be paidthrough High Court Legal Services Sub Committee Aurangabad. ”6.Mr. Satej Jadhav learned advocate has offerred valuable on 25 01 2021 on 22 03 9} criapln2073.20 assistance to the court in dealing with the question underreference with flair submitting that furlough or parole arecreation of rights under the rules and if rights are to bemeaningful the construction on rules may so be placed aswould carry forward the underlying purpose. Rights accrued tothe prisoners under the Rules if are to be practically fruitful inconvenience to the extent of making their realizationimpossible should in all cases be avoided lest it would do harm tothe purpose for which access is being afforded. He submits thatit is not in control of prisoners as to prison they are to be lodgedin and it is surely administrative convenience discretion of theauthorities. However in such a case if they are aggrieved by anorder passed by an authority at a particular place prisonersshould not be shut out to have resort to remedy which wouldordinarily be available to them at place they come from or wheretheir conviction has taken place. He submits that necessarily one is a prisoner because of the conviction and it cannot be saidthat on his imprisonment though he bears appellation as aprisoner it would sever ties with the conviction. Ostensibly conviction may not have any relation to the reasons for parole yet it may have to be taken into account that very purpose ofrules would be frustrated if matter of said limited liberty madeavailable is pedantically approached. He submits in many cases on 25 01 2021 on 22 03 10} criapln2073.20 it would be virtually impossible for the prisoners even if areaggrieved by order passed by jail authority to approach a properBench viz: at principal seat at Nagpur at Aurangabad or atPanaji Goa if the order is passed at a far distance from theplace where his conviction has taken place or where he issupposed to be on parole or where he hails from. Their economiccondition as well as that of their relatives would not let themafford have recourse to resort against order passed rejectingapplication for parole. He particularly emphasizes that whenprisoner has no control a stickler s approach should better beeschewed.7.On the other hand Mr. Salgar learned APP refers a fewdecisions of the apex court and this court and refers to CriminalManual and Maharashtra Classification of Parole Rules 1970 particularly rules 2 and 3 thereunder. He as well refers to Article226of the Constitution of India and submits that havingregard to the same recourse will have to be had to a place ofhigh court within jurisdiction of which order has been passedsince the cause of action is the order passed. If it falls within thejurisdiction of principal seat or a particular bench proper andappropriate resort would be to the principal seat or the properbench and not for the reason that prisoner hails from or for that on 25 01 2021 on 22 03 11} criapln2073.20 he wants to be at a particular place or his conviction been atplace not in the place where cause of action has arisen.Emergency parole under rule 19(C) is indeed distinct fromother parole and the reasons are also quite apart. He therefore submits that the question may be answered accordingly.8.It may not be out of place to refer to that liberty of aperson under the Constitution upon his conviction being underdue process of law is not ordinarily enjoyable to fullest extent.While conviction and imprisonment deprives a person of hisliberty otherwise available furlough and parole leave makeavailable curative facility and generation of kindness behavioralmaturity and values a good life under controlled conditions maybe possible. The facility of furlough parole leave is an indicationof humanistic approach towards the prisoners letting affordingopportunity to solve their personal or family problems and tomaintain link with the society.9.Parole Rules create access to seek provisional limitedliberty to a convict prisoner. Furlough parole leave has beenmade available to convicts prisoners with various purposesunderlying. The rules open vistas for action by aconvict prisoner. Such provisional liberty coming the way of aprisoner pursuant to the rules is accrued to him under the rules on 25 01 2021 on 22 03 12} criapln2073.20 and is governed and regulated by said rules. Such a liberty iscircumscribed with the criteria and restricted according toprovisions thereunder and is conditioned by the same. But forthe rules such a facility would not have been possible andpermissible to a convict prisoner.10.The rules also provide for and empower competentauthority to grant or refuse parole to convicted prisoner and incase of refusal of regular parole an appeal has been provided tohigher authority.11.The provisions under Parole Rules may have to be lookedinto having regard to language in which question underreference has been couched.12.Rule 18 thereunder refers to competent authorities togrant parole and under clauserefers to commissioner ofdivision where the prisoner is lodged and in case of refusal byhim an appeal is provided to Director General CorrectionalServices Maharashtra State Mumbai making his decision final.13.Rule 19 of the Parole Rules refers to when a prisoner maybe released on parole. Sub rule 1 thereunder concernsemergency parole and sub rule 2 regular. Under clause 19(B) anda prisoner is eligible for emergency parole of 14 on 25 01 2021 on 22 03 13} criapln2073.20 days for death of near relative and marriage of near relativewithout possibility of any extension. Clauseauthorizes Superintendent of prison to grant emergency parole for death ofa close relative and Deputy Inspector General for marriage ofson daughter brother sister with conditions as may beconsidered appropriate.14.Rule 19with regard to regular parole refers to thatprisoner eligible for furlough would be eligible for parole forserious illness of near relatives delivery of child or naturalcalamity with a rider that prisoner shall not be released onemergency or regular parole for a period of one year after expiryof his last emergency regular parole except in case of death ofnear relative further regulating limits of parole days in case ofregular parole as referred to under clauses A B and C of sub rule2 of Rule 19. Rules 21 to 28 prescribe procedure to be followedwhile considering application for parole.15.We may have to examine the aspect as to whether there isany nexus between conviction by trial court in a district andgrant or refusal of parole. In this respect it would be seen thatconviction of a person for an offence committed has differentconsiderations is an absolutely different context and dominion.Whereas parole as can be seen from the rules would be on 25 01 2021 on 22 03 14} criapln2073.20 occasioned on the specific reasons as have been enumeratedunder the Parole Rules viz: death or marriage of close relativesor pandemic illness delivery of child natural calamity etc. andwould be circumscribed by the eligibility criteria referred tothereunder. It appears that there is seldom any nexus between aconviction and a parole. Place of court convicting has nosignificance and does not appear to play any role in the matterof granting or refusal of parole.16.It would thus emerge that parole is to be considered ondifferent parameters which hardly have anything to do with theconviction of a prisoner or place of court convicting him. There isno mutuality between place of court convicting and grant orrefusal of parole. Conviction occurs in entirely different dominionand the dominion of operation of rules for parole is separate andapart and does not appear to be related in any way save thatparole is available under the rules to a convict pursuant to thecriteria referred to beyond that conviction or for that matterplace of court convicting the prisoner has no role. Convictiondoes not influence granting or refusal of parole nor does place oftrial court.17.When access to provisional limited liberty is created by therules incidentally remedial measures on refusal to grant parole on 25 01 2021 on 22 03 15} criapln2073.20 for a prisoner convict would also be regulated and governedunder operation of rules.18.While we are dealing with the question framed in thisrespect Chapter XXXI of the Bombay High Court Appellate SideRules 1960 would have a significant role to play prescribingpresentation of proceedings at the offices of high court atNagpur Aurangabad Panajirequiring presentation ofappeals applications references and petitions includingpetitions in exercise of powers under Articles 226 and 227 of theConstitution arising in judicial districts as have been referred to to respective high court benches seat at Nagpur Aurangabadand Goa. Under said Rules chief justice may in his discretion order that case and or class of cases arising in any district maybe heard at Bombay or even vice versa. 19.In a hypothetical case if the authority does not pass orderon an application for parole and keeps it pending a mandamusnecessarily will have to be sought from a forum of this courthaving jurisdiction over the place where the relevant competentauthority prison is situated. Having regard to Chapter XXXI ofBombay High Court Appellate Side Rules 1960 corollary wouldbe a prisoner would not be able to have a writ of mandamusunder Article 226 of the Constitution from a forum of this court on 25 01 2021 on 22 03 16} criapln2073.20 not having jurisdiction over the area where the authority prisonis located which does not pass order on application for parole. 20.From the provisions it clearly surfaces thatso far as order of rejection of parole other than for under Rule 19(A) andof Parole Rulesis concerned it would be an order against which appeal would beavailable and in such a case if appellate authority is situatedoutside notified jurisdictional districts such an order wouldalways be amenable to challenge before the bench havingjurisdiction over area where appellate authority is situatedand or also before a bench in jurisdiction of which original orderhad been passed. To illustrate suppose an order has beenpassed by an authority in Aurangabad refusing parole and appealtherefrom has been preferred at Mumbai and if a prisoner isaggrieved by the appellate order he would have option tochallenge it before Aurangabad Bench or at the principal seat.21.Under amended rules it appears that the Superintendentof prisons has been empowered to grant emergency parole ifapplication is pursuant to Rule 19(A) andof theParole Rules. In such a case it appears there is no appealprovided against order of rejection and the reason for theemergency parole being not linked with conviction it does not on 25 01 2021 on 22 03 17} criapln2073.20 appear only for the reason that conviction being from aparticular place and if that place is falling within the territorialjurisdiction of a particular bench resort can be had to that benchby prisoner whose application pursuant to Rule 19of theParole Rules has been rejected. 22.As such while the procedure regulates presentation ofmatters according to cause arising in the judicial districts for acause arising outside the jurisdiction so emerging from ChapterXXXI of the Bombay High Court Appellate Side Rules resortwould have to be before the proper bench while place ofconviction would not be of any significance. Any nexus betweenrefusal to grant parole and conviction has neither been shownnor hinted at. 23.Grant or refusal of parole does not appear to haveanything to do with either the conviction or the place of courtconvicting. Conviction appears to be of little concern so far asgrant or refusal of parole is concerned. Conviction is not a nexusfor parole. However for a party which finds it extremely difficultand hardship would be caused to it access can be had to theChief Justice’s powers under proviso under rules in Chapter XXXIof the Bombay High Court Appellate Side Rules 1960. on 25 01 2021 on 22 03 18} criapln2073.20 24.Foregoing discussion leads us to consider that while theredoes not appear to be any nexus between grant or refusal ofparole and place of court convicting ordinarily a prisoner convictwould have to approach a forum of this court having jurisdictionover the district in which order of rejection is passed. But aconvict prisoner is not precluded from approaching the benchhaving jurisdiction over the district in which trial court hasconvicted him if the order of rejection of parole is passed in thearea of jurisdiction of forum whereunder conviction has takenplace or if a nexus between refusal to grant parole andconviction could reasonably and validly be said to exist. However in the latter case it could always be open in rare and exceptionalcases for the Bench before which the proceeding is presented toexamine the plea at the threshold and decide whether to receivethe proceedings or not.25.The question under reference is answered accordingly. CHIEF JUSTICES. V. GANGAPURWALA JUDGESUNIL P. DESHMUKH JUDGE drp criapln2073.20 

Summary: Grant or refusal of parole does not appear to have anything to do with either the conviction or the place of court convicting. Conviction appears to be of little concern so far as grant or refusal of parole is concerned. Conviction is not a nexus for parole. A Bench of Dipankar Datta CJ, SP Gangapurwala J and Sunil P Deshmukh J, while adjudicating the matter in State of Maharashtra v. Guddu; [CRIMINAL WRIT PETITION NO.1362 OF 2020], dealt with the issue of releasing a convict on parole. The respondent moved a criminal writ petition in Bombay High Court aggrieved by an order rejecting his application for emergency parole passed by Superintendent of Central Prison. Parole leave to said respondent had been refused by the Superintendent, him having not availed parole or furlough leave on two occasions and that he had not completed three years in jail prior to his application for emergency parole under Rule 19 (1) (C) of the Prisons (Bombay Furlough and Parole) Rules, 1959 (the Parole Rules), introduced into Rule 19 under the Amendment Rules of 2020, in the wake of COVID-19 pandemic, finding that in the circumstances, he would not be eligible for release on emergency parole leave. The respondent had instructed to the State that he would file a fresh application for emergency parole under Rule 19 (1) (C) of the Parole Rules, as soon as he completes three years in jail, while he had completed about two years and eight months. The counsel appearing for the respondent stated that Rights accrued to the prisoners under the Rules, if are to be practically fruitful, inconvenience to the extent of making their realization impossible should in all cases be avoided lest it would do harm to the purpose for which access is being afforded. Conviction may not have any relation to the reasons for parole, yet, it may have to be taken into account that very purpose of rules would be frustrated if matter of said limited liberty made available is pedantically approached. The public prosecutor stated that the liberty of a person under the Constitution, upon his conviction, being under due process of law, is not ordinarily enjoyable to fullest extent. While conviction and imprisonment deprive a person of his liberty otherwise available, furlough and parole leave make available curative facility and generation of kindness, behavioural maturity and values a good life under controlled conditions may be possible. The facility of furlough / parole leave is an indication of humanistic approach towards the prisoners, letting / affording opportunity to solve their personal or family problems and to maintain link with the society.