JUSTICES Bharati Dangre and Manjusha Deshpande have at the principal seat of the Bombay High Court in Mumbai, in the criminal case – Balaji Abhaji Puyad v. The State of Maharashtra and others, allowed the writ petition of the convicted prisoner Balaji on October 25, 2024, for being released on parole, in the wake of illness of his wife with direction to the Superintendent, Nashik Road Central Prison to release him after ascertaining genuineness of the cause cited by the petitioner and if that is found to be so, by not permitting Rule 19(3)(c)(ii) to come in his way in availing the parole leave. The application by the petitioner for release on parole from Nashik Road Central Jail, was rejected by the jail Superintendent on September 20, 2024, on the ground that the condition introduced in Rule 19(3) vide Circular of February 10, 2022, providing that the prisoner shall be eligible for subsequent release on regular parole only after completion of one and half years of actual imprisonment to be counted, from his last return, either on furlough or regular parole. The order records that he was earlier released on furlough and had returned to prison on April 10, 2024 and within a span of 5 months and 11 days, he filed the application for parole, which is not admissible to him.

 

The stand adopted by the State is the specific prohibition introduced, while considering the case of the petitioner on regular parole, which can be granted on either of the 3 grounds or reasons, namely: (i) Serious illness of father/mother/spouse/son/daughter; (ii) Delivery of wife(except high security risk prisoners); (iii) In case of natural calamities such as house collapse, flood, fire, earthquake etc. Clause (C) of Rule 3, has set out the eligibility and limits of such parole and specify thus: “19(C) When, prisoner is sentenced to life or whose average sentence exceeds 14 years. (i) The prisoners may be considered for first release on regular parole after completion of three years of imprisonment counted from the date of his admission to prison under convicted crime; (ii) The prisoners shall be eligible for subsequent release on regular parole after completion of one and half year of actual imprisonment to be counted from his last return either from furlough or regular parole; (iii)the prisoners shall be eligible for maximum 45 days of parole in a year, which can be extended up to sixty days once in three years only under exceptional circumstances. Relying upon sub-clause (ii)of Clause (C), the request of the petitioner to release him in the wake of illness of his wife was rejected.

 

The counsel for the petitioner, Rupesh A Jaiswal invited the HC’s attention to Full Bench of this HC at Nagpur, in the case - Kantilal Nandlal Jaiswal v. Divisional Commissioner, Nagpur and others – 2019 All MR (Cr) 4003, wherein somehow identical provision introduced by the amendment of April 16, 2018 came up for consideration, by virtue of which there was an amendment in the Prisons (Bombay Furlough and Parole) Rules 1959 and Rule 19 came to be replaced, by prescribing as to when a prisoner may be released on emergency parole /regular parole. As far as the regular parole is concerned, it contemplated release in three contingencies, with the proviso being appended to the effect:” Provided that, a prisoner shall not be released on emergency or for the period of one year regular parole after the expiry of his last emergency or regular parole except, in case of death of his nearest relatives mentioned. The present Rules , which are inserted by the Notification of February 10, 2022, thereby substituting Rule 19 of the Prison Rules of 1959 has now categorised parole into three compartments: Emergency, special and Regular parole. Emergency parole is permitted to be availed for seven days, for participating in the rituals related to the death of a near relative mentioned therein, whereas special parole can be availed by a prisoner for marriage of son/daughter/ sibling and regular parole may be granted for three causes, but subject to a stipulation, which has been introduced in 19(C) (ii) imposing an embargo for releasing a prisoner on a regular parole before completion of one and half year of actual imprisonment to be counted from his last return either from furlough or regular parole.

 

The stand adopted by the State is the specific prohibition introduced, while considering the case of the prisoner on regular parole, which can be granted on any of the following grounds or reasons: (i)Serious illness of father /mother/spouse/son/daughter; (ii) Delivery of wife; (iii) ln case of natural calamities. A similar proviso, in the 2018 Rules, received consideration at the hands of Full Bench and in para 34, it was concluded that it is unbelievable for a person to fathom as to when the contingency for availing parole like serious illness or natural calamity as stipulated therein may occur. Applying the test of Article 14, as expounded by the Supreme Court in the case of Navtej Singh Johar v. Union of India (2019) 10 SCC 1, the Full Bench arrived at the conclusion that the proviso to the Rule 19(2) of the 1959 Rules would be termed to be nothing but manifestly arbitrary and answered the issue against the State.

 

The HC has expressed surprise after noting that despite exposition of law, an identical provision has found its way in the Furlough Rules, through the amendment of February 10,2022 and this time, instead of one year, the period of completion, being contemplated as one and half year of actual imprisonment to be counted from his last return either from furlough or regular parole. In the event of unforeseen contingency, the prisoner shall not be asked to wait for completion of one and half year of actual imprisonment to be undergone by him. For the very same reason, which the Full Bench has recorded in para 34 of the judgement in Kantilal’s case to be read with paragraphs 41 and 42, though the HC is satisfied to strike down the validity of the said provision, but since, there is no challenge before the Court, restricting it to facts of the case, the impugned order cannot be sustained. The Bombay High Court has allowed the writ petition of the prisoner with direction to the Nashik Central Jail’s Superintendent to re-consider the petitioner’s application for parole on its own merits within one week from the date of this order.