Validity of Rules creating bar to grant parole to rape-convict referred to larger Bench

Source: The Hitavada      Date: 03 Sep 2018 11:51:21


Legal Correspondent,

In view of the judicial propriety and discipline, the High Court division bench here, consisting of Justice R K Deshpande and Justice Arun D Upadhye, has referred the question of the legal validity of Rules, which create a bar to deny parole leave to rape-convicts, to larger Bench.

The legal question formulated for the larger Bench to answer is as under: “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 offense of rape is violative of Articles 14 and 21 of the Constitution, particularly when the offenders or convicts in other serious offenses are entitled to such leave?”

The court has directed its registry to place the matter before the Chief Justice for referring the legal question formulated by it to the larger Bench. Justifying its decision to make reference, the division bench has stated that it thought it better to refer the matter, instead of making out a distinction between the decision of the apex court in the case - State of Haryana & Another v. Jai Singh - AIR 2003
SC 1696 and division bench decision of this court in the case - Sharad Devaram Shelake v. State of Maharashtra - 2016 ( 4 ) Mh.L.J. 228.

Similarly, it would also not be proper on its part to hold that the decision of the division bench of this court in Shelake’s case stands impliedly overruled by the decision of the division bench of the Supreme Court in the case - Asfaq v. state of Rajasthan and Others - (2017) 15 SCC 55. The criminal writ petition, in this case, has been filed by Vijay Pralhad Varankar (in jail) challenging the order passed by the divisional commissioner, Amravati, on February 3 last, refusing to grant the petitioner parole leave for 30 days on the ground of the bar created under the Prison Rules in question, amended by the notification of August 26, 2016.

It is not in dispute that after examining the case of the petitioner on merits, it was recommended by the authorities concerned to grant him parole leave, but the only ground of rejection is the bar created in these Rules. It is in this background these Rules are the subject matter of challenge through this petition. Advocate S D Chande appeared for the petitioner. APP A M Joshi represented the State.