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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL WRIT PETITION NO.272 OF 2012. PETITIONER:
RESPONDENTS:
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2 3
The State of Maharashtra, Through its Secretary, Home Department, Mantralaya, Mumbai. The D. I. G. Prisons (E)(R), Nagpur. The Superintendent, Prison, Nagpur. Central
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Ms. S. H. Bhatia Advocate (appointed) for petitioner. Mrs. Bharti Dangre, Government Pleader respondents. 000 CRIMINAL WRIT PETITION NO.355 OF 2012 Umashankar Shriram Convict No.Nil, Prison, Nagpur. -VERSUSRESPONDENTS: 1 2 The Divisional Commissioner, Nagpur Division, Nagpur. The Superintendent, Prison, Nagpur. Central Potbhare, Central
PETITIONER:
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Mrs. Sonali Saware Advocate (appointed) for the petitioner. Mrs. Bharti Dangre, Government Pleader respondents.
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the for for
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-VERSUSRESPONDENTS: 1 2
The Divisional Commissioner, Nagpur Division, Nagpur. The Superintendent, Prison, Morshi, Amravati. open Distt.
Ms. Radha Mishra Advocate (appointed) for petitioner. Mrs. Bharti Dangre, Government Pleader respondents.
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ooo 1 2 Both C/o Nagpur. 1 2 3
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CRIMINAL WRIT PETITION NO.371 OF 2013 Mahesh S/o Janardan Gonnade, (In Jail), Convict No.C-7247, Kantilal S/o Nandlal Jaiswal, (In Jail), Convict No.C-8135, Central Prison,
PETITIONERS:
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-VERSUSRESPONDENTS: State of Maharashtra through Secretary, Home Department, Mantralaya, Mumbai-400 004. The Divisional Commissioner, Nagpur Division, Nagpur. The Superintendent of Prison, Central Prison, Nagpur.
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the for
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Chandrashekhar Suresh Bhoyar, Convict No.C/153, Open Prison, Morshi, Distt. Amravti.
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Pleader for
DATE OF RESERVING THE JUDGMENT ON: 27-01-2014. DATE OF PRONOUNCING THE JUDGMENT: 7TH
to challenge validity of the proviso to Rule 19 of the Bombay (Furlough and Parole) Rules 1959 as
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Rules 2012. The earlier of 2012 has application
1.
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BACKGROUND FACTS:
2.
been filed on behalf of 78 convicts. It has been stated that in view of the amendment of 2012 to Rule 19 of the Rules of 1959, the petitioners are deprived from seeking release on parole within a period of one year from their release. been for Criminal preferred has Writ by a
Petition convict
No.355 whose
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Bombay (Furlough parole
MARCH, 2014.
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and been
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rejected on the ground that he has sought release on parole within a period of one year from his earlier
petition
had
sought
parole
daughter's illness.
of 2012, the petitioner is seeking release on parole on account of his father's serious illness. However, as the period of one year is yet to lapse from his earlier release, the petitioner has challenged the proviso to Rule 19 of the Rules of 1959 as the same prevents his release. Criminal Writ Petition No.371 of 2013
has
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been filed by these criminal S. H. Bhatia, and Mr. filed by 78
challenging the aforesaid proviso to Rule 19 on the ground that there is an embargo on the right of a
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prisoner to seek release on parole in view of amended provisions referred to above. All writ petitions were
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directed to be heard together. Accordingly learned Counsel Radha Ms. Mishra Mrs. Sonali Samundre Saware for Ms. the
Nitesh
petitioners have argued in support of the petitions and Mrs. Bharti H. Dangre, Learned Government Pleader has opposed the petitions on behalf of the State.
3. that has
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on account of two convicts who
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his are
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stated that parole is granted in emergency situations that arise on account of serious illness or death of
restricting release on parole for only one occasion in a year, the convicts are unable to make themselves available in case there is a serious illness of a family member or for other situations as contemplated by Rule 19. It has, therefore, been stated that the restrictions
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placed by Article 21 be so released
the proviso
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to Rule 19 the Constitution on parole cannot
Rules 1959 deprive the petitioners of availing the right of parole in such situations thereby violating provisions India.
of
of
om
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of 2012 and 366 of 2012 are concerned, the same have been filed by individual convicts raising a grievance that on account of the proviso to Rule 19 of the Rules 1959, they are unable to seek their release on parole despite the illness of a close relative. In Criminal Writ Petition No.371 of 2013, the action of the State Authorities in not accepting an application for release on parole on the ground that the period of one year after expiry of earlier release had not come to an end. prisoner to It has been stated that right of a be
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of of
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is placed upon the Division Bench judgment of this Court in the case of
Namdeo Tarfe Vs. State
4.
On
behalf
of
the
Superintendent of Prisons, Central Prison, Nagpur has filed an affidavit dated 19-6-2013 in Criminal Writ Petition No.303/2012. The stand taken in said
affidavit has been adopted as the stand in all other connected writ petitions. The respondents have
power
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of the State It has amended. It is the and their nearest
contrary to the provisions of the Prisons Act, which by Section 59 empowers the State Government to frame
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such
Rules.
further
considering the previous experience of the convicts to misuse and/or abuse benefit of parole leave, Rule 19 was accordingly In paragraph 11 of
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aforesaid affidavit, it has been stated as under: "11. submitted that the
State of Maharashtra on the basis of material available with it found that the convicts are grossly misusing and abusing provision for grant of
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respondents, Government and is been stated
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of
the
not
that
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was, impose just convicts
herewith chart
showing
jail
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sentence The in a the dates leave and have granted 1 that who in terrorists their reported relevant on respectful
Nagpur.
respondent
enclosing
granted
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leave benefit
were
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Central criminals
convicted for taking part in naxalite and operations This have fact also was
jumped widely
parole. in
published
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Annexure-R1A the a details dates marked showing duration to those thus to abused them. the The most dreaded jail submits several undergoing Prison, who Nagpur were local daily
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respondent 1 the substituted Rule 19 whose vires is under challenged is a fair, reasonable, just and practical step and measure adopted by the State
Government in plugging the loopholes in the jail administration and abuse and
rule
out
misuse
statutory parole." It is
provisions
further
submitted
the scheme of the Rules of 1959 with regard to grant of parole, it cannot be said that the proviso to Rule 19 violates the provisions of Article 21 of the
Constitution of India. The learned Government Pleader has relied upon judgment of the Constitution Bench of the Supreme Court in Sunil Fulchand Shaha Vs. Union
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of India reported in 2000 (3) SCC 409 and another judgment of the Supreme Court in the case of State of Haryana and othes VS. Mohinder Singh reported in
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(2000) 3 SCC 394. The learned Counsel, therefore, prayed for dismissal of the writ petitions. STATUTORY PROVISIONS:
5.
of the proviso to the amended provisions of Rule 19 of the Rules of 1959, it would be advantageous to refer to the relevant statutory provisions The while of
considering
the
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aforesaid
challenge.
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to of the qua grant of that considering Rules
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Government in
"19. A prisoner may be released on parole for such period as the Competent Authority referred to in Rule 18 in its discretion may order, in case of serious illness, or death of any member of the prisoner's family or of his nearest relatives or for any other sufficient cause".
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When a
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Rule 19 was thereafter again amended with effect from 7-2-2007 and it read as under:
A Prisoner may be released on parole for such period not exceeding thirty days at a time, as the Competent Authority referred to in rule 18, in its discretion may order, in cases of serious illness, or death of nearest relative such as mother, father, sister, brother, children, spouse of the prisoner, or in case of natural calamity such as house collapse, floods, fire. No such parole or extension of parole shall be granted without obtaining a police report in all cases except in the case of death of his nearest relatives mentioned above; Provided that a prisoner shall not be released on parole for one year after expiry of his last parole except in the case of death of his nearest relative mentioned above."
"19.
prisoner
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on as may be may be
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released on parole:"A prisoner may be released on parole for such period as the Competent Authority referred to in Rule 18 in its discretion may order, in case of serious illness, or death of any member of the prisoner's family or of his nearest relatives, or pregnant woman prisoner for delivery (except high security risk prisoner), or for any other sufficient cause."
By notification dated 23-2-2012, the State Government amended the Rules of 1959. By virtue of
"19. When a prisoner may be released on parole.-- A prisoner may be released on parole for such period not exceeding thirty days at a time as the Competent Authority referred to in Rule 18 in its discretion may order, in case of serious illness or death of nearest relative such as father, mother, brother, sister, spouse, children or marriage of brother, sister and children of prisoner or pregnant woman prisoner for delivery (except high security risk prisoner) or in case of natural calamity such as house collapse, floods, fire and earthquake. No such parole or extension of parole shall be granted without obtaining a police report in all cases except in the case of death of his nearest relatives mentioned above: Provided that, a prisoner shall not be released on parole for the period of one year after the expiry of his last parole except in case of death of his nearest relatives mentioned above."
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his earlier release on parole only in case of death of his nearest relative is the subject matter
As the principal challenge to the proviso to Rule 19 of Rules of 1959 is based on violation of provisions of Article 21 of the Constitution of
India, provisions of Article 21 of the Constitution of India are reproduced herein below. "Article 21": Protection of life and personal liberty.-No person shall be deprived of his life or personal liberty except according to procedure established by law".
LEGAL
POSITION
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IN VIEW OF concept of Bench of a detenue. In
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6.
The
parole the
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PRONOUNCEMENTS OF was examined Court Supreme that context,
om
the
Constitution
case of Sunil Fulchand Shaha (supra). The question that was considered by the Constitution Bench was as to whether the period of detention gets automatically extended on account of the period of parole that is granted to while
considering the meaning of the word "Parole", it was observed thus:25. "Parole", however, has a different
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of THE by in
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connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. The dictionary meaning of "parole" is:
"The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behaviour; such a promise; a word of honour." Black's Edition)
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Law
Dictionary
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"Release from jail, prison or other confinement after actually serving part of sentence; Conditional release from imprisonment which entitles parolee to serve remainder of his term outside confines of an institution, if he satisfactorily complies with all terms and conditions provided in parole order. According to The Law Lexicon,"parole" has been defined as: "A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole." According to Words and Phrases: 'Parole' ameliorates punishment by permitting convict to serve sentence outside of prison walls, but parole does not interrupt sentence. People ex rel Rainone v.Murphy. 'Parole' does not vacate sentence imposed, but is merely a conditional suspension of sentence, Wooden v. Goheen.
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-(6th
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A 'parole' is not a 'suspension of sentence', but is a substitution, during continuance of parole, of lower grade of punishment by confinement in legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the Court. Jenkins v. Madigan.
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26. In this country, there are no statutory provisions dealing with the question of grant of parole. The Code of Criminal Procedure does not contain any provision for grant of parole. By administrative instructions, however, rules have been framed in various States, regulating the grant of parole. Thus, the action for grant of parole is generally speaking, an administrative action. The distinction between grant of bail and parole has been clearly brought out in the judgment of this Court in State of Haryana v. Mohinder Singh to which one of us (Wadhwa,J) was a party. That distinction is explicit and I respectfully agree with that distinction. 27. Thus, it is seen that "parole" is a form of "temporary release" from custody, which does not suspend the sentence or the period of detention, but provides conditional release from custody and changes the mode of undergoing the sentence."
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It was held by the Constitution Bench that the period of detention would not stand automatically extended by any period of parole granted to the detenue unless the order of parole or Rules or instructions
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A 'parole' does not suspend or curtail the sentence originally imposed by the court as contrasted with a 'commutation of sentence which actually modifies it."
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condition of
Haryana (supra) has been approved in the aforesaid decision of the Constitution Bench.
7.
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1515,
CRI.
L.
J.
the
Full
considered the question as to whether the grant of parole amounted to suspension of sentence within the meaning of Section 432 of the Criminal Procedure Code (hereinafter referred to as the Code). The Rules of
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and in that context, it was observed in paragraphs 22 and 23 as under:"22. It is seen that 'bail' and 'parole' operate in distinct fields although, the ultimate end is the release of the prisoner on certain terms and conditions. There is clear distinction between 'parole' and 'bail. 'Parole' has nothing to do with the actual merits on the matter i.e. the evidence which has been led against the convicted prisoner but 'parole' is granted in cases of emergency like death, illness of near relative or in cases of natural calamity such as house collapse, fire or flood. It is pertinent to note that in case of death of near relative, the Superintendent of Prison shall also be competent to release the convict on parole for a period not exceeding 15 days. Parole is
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Bench of this
State
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of Court
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resorted to in cases of contingency. Looking to this fact it would not be expedient for the convict to approach the Courts and pray for temporary release especially in cases of death. The Prison Rules take care of such emergencies.
Rule 19 of the Rules of 1959 as it then existed prior to its amendment on 7-2-2007 was also taken into
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parole did not amount to suspension of sentence as contemplated by Section 432 of the Code. The Division Bench of this Court while
om
considering the scope and ambit of Rule 3 of Rules of 1959 in the case of
Pralhad Gajbhiye Vs. State of
Maharashtra and another reported in 1994 Mh.L.J., 1584 has observed thus.
"5. It is now well settled that furlough and parole have two different purposes. Furlough is a matter of right whereas parole cannot be claimed as a matter of right."
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23. Thus, Bail and Parole operate in different spheres and in different situations. In India, there are no statutory provisions dealing with the questions of grant of parole. The Code of Criminal Procedure does not contain any provision for grant of parole. By an administrative instruction,however, rules have been framed in various States regulating the grant of parole. Thus, the action of grant of parole is generally speaking an administrative action."
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Rule 19 of the Rules 1959 permits release
death
of
close
relatives
or
calamities.
regard to the provisions of Rule 19 in so far as they recognize the right of a prisoner to be released on parole. However, the proviso to Rule 19 restricts the release of a prisoner on parole for a period of one year after the expiry of his last parole except in case of death of his nearest relatives mentioned above. The restriction as imposed by the proviso has thus, led the petitioners to make a grievance that
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such
restriction
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impinges the 21 of the
upon
right as guaranteed by Article 21 of the Constitution of India. Thus, challenge to the aforesaid
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9.
Article
ensures protection of the life and personal liberty of every person. A person can be deprived of his life or personal liberty only according to the procedure established by law. In so far as the aspect of
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in case of their Constitution of
fundamental
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natural India
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59 of the Prisons Act confers power on the State Government to make such Rules for the purposes of
rule making power conferred by the Prisons Act, the Rules of 1959 have is been no framed by the State writ
Government.
There
challenge
petitions to the competency of the State Government to frame such Rules in exercise of the power It is
thus, clear that the petitioners have no grievance in so far as framing of the Rules of 1959 are concerned. Therefore, the Rules of 1959 as framed indicate that the "procedure established by law" has been followed while seeking to deprive the petitioners of their
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personal liberty while they are serving the sentence imposed upon them.
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10.
the Rules of 1959 is that the same imposes excessive restrictions on the right of a prisoner to be
released on parole. According to the petitioners, the situations as contemplated in Rule 19 of the Rules of 1959 are those situations over which, neither the prisoner, nor his family members have any control. Hence, according to them by not providing for release on parole within a period of one year after expiry of
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in these
In exercise of said
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of near
last parole, then the prisoner cannot be released on parole. depriving This according to the petitioners results in them of their personal liberty and the
same, therefore, violates the provisions of Article 21 of the Constitution of India. This is, therefore,
11. as
H
While by
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considering the rights under petitioners imposed
the
raised
petitioners
fundamental
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Constitution of India, it will have to be kept in mind that the are prisoners them who are
undergoing
sentences
om
committed an offence.
been imposed upon each of them in accordance with law. However, though convicted and undergoing such sentence, the petitioners nevertheless are entitled for protection of their fundamental rights under the Constitution of India. The question, therefore, is
whether the fetters imposed by the proviso to Rule 19 of the Rules 1959 for release on parole is reasonable and justified in the facts and circumstances of the
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aforesaid of breach 21 of of Article upon for
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having
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situation or whether the same deprives a prisoner of his personal violation of liberty in a manner of that results 21 of
Constitution of India.
12. absolute
administrative
instructions
Such right can be exercised subject to existence of situations contemplated by Rule 19 of the Rules of 1959. It is necessary to note that initially when Rule 19 was framed, there was no such embargo on the release of a prisoner within a period of one year of expiry of the previous release on parole. The proviso
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to Rule
19
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was first said proviso dated
introduced
Rules in the year 1989. This position continued till 7-2-2007 when was deleted. Now by
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notification
has again added said proviso. It is thus, seen that the restriction on release on parole within a period of one year of expiry of last parole was initially placed and thereafter, deleted. It has now again
been placed by virtue of the latest amendment to Rule 19. A perusal of the reply filed by the State
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framed by the by amending
provisions
Article
Government
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in the State. said
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material available with the State Government on the basis of which it found that the convicts
of
parole
leave. repeatedly
It
has and
been
convicts
frequently
leave on account of illness of nearest relatives. There were also instances and leave. not of convicts abusing after
aforesaid availing
benefit parole
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the initial present been the effected basis "mischief taken when
This
indicates that with a view to curb the misuse of aforesaid provisions for grant of parole leave, the State thought it fit to impose some restrictions in the matter of grant of parole leave.
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13.
As and has on
introduction, of
deletion Rule 19
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stated that sought reporting stand, back proviso is same experience of will have to material words
therefore,
subsequent to
om
justified
of past
State, the principles contained in the Rule laid down in Heydon's case - (1584) 3 Co. Rep.7a, P. 7b:7 6ER 637 or the rule" be
considered. Though it is true that normally aid of said Rule is the are
capable of two or more constructions, it is equally well settled that the principles contained in said Rule can be kept in mind while considering the effect
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were parole being the
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would be
apposite
the
Kalliani
Amma
(SMT)
and
others
under:
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"69. The learned Counsel for the appellant tried, at this stage, to invoke Heydon's Rule which is a sound rule of construction of a statute firmly established in England as far back as in 1584 when Heydon's case was decided that for the true interpretation of all statutes in general, four things are to be discerned and considered: (1) what was the common law before the making of the Act, (2) what was the mischief and defect for which the common law did not provide, (3) what remedy Parliament hath resolved and appointed to cure the disease of the commonwealth, and (4) the true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy... 72. Heydon's Rule is generally invoked where the words in the statute are ambiguous and/or are capable of two meanings. In such a situation, the meaning which avoids the mischief and advances the remedy, specially in the case of a beneficial statute, is adopted. There is some controversy whether Heydon's Rule can be invoked in any other situation especially where the words of the statute are clear and unambiguous. In CIT v Sodra Devi it was indicated that the rule in Heydon's case is applicable only when the words in question are ambiguous
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-VersusK. Devi
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Supreme
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and capable of more than one meaning. That is what was expressed by Gajendragadkar, J. in Kanai Lal Sur v. Paramnidhi Sadhukhan. In Maunsell v. Olins ALL ER at p.29, Lord Simon explained this aspect by saying that the rule in Heydon's case is available at two stages; first before ascertaining the plain and primary meaning of the statute and secondly at the stage when the court reaches the conclusion that there is no such plain meaning. 73. Be that as it may, we are not invoking the rule but we have nevertheless to keep in mind the principles contained therein to examine and find out whether the mischief from which the earlier legislation suffered on account of use of certain words has since been removed and whether the subsequent legislation is constitutionally valid and, on account of use of new phraseology, implements effectively the intention of the legislature in conferring the status of legitimacy on children, who were, otherwise, illegitimate."
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14. can
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be
H
taken
In view of what has been stated above, what into to account the is the law what that was was the
prevailing
prior
mischief and defect for which said provision did not provide and the manner in which said mischief and defect has been sought to be now resolved. From the material on record, it is clear that the State
Government noticed that the provision for grant of parole leave was being misused on the pretext of
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amendment,
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illness of nearest relatives. Considering its past experience of such repeated and frequent requests for
a reasonable and just restriction on release of a prisoner on parole by introducing proviso to Rule 19. The mischief of repeated and frequent requests for release was, therefore, sought to be remedied by
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Government State charts
on the
before it found it proper to impose some reasonable restrictions in the matter of release of a prisoner on parole, then in exercise of its rule making power, the State Government was within its rights in seeking to impose such restrictions by introducing proviso to
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Rule 19 of Rules of 1959. The material on the basis of which the Government decided to act and
which has been placed on record in the form of an affidavit with appended thereto is not
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questioned or disputed by the petitioners. It is, therefore, clear that valid circumstances existed so as to compel the State Government to look into the matter and introduce proviso to Rule 19 with a view to place a reasonable restriction on the right of a prisoner to be released on parole.
15.
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basis of
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parole as
to sanction parole.
subject to which prisoners may be granted parole. Rule 25 prescribes for extension of period of parole. The competent authority can if an application is made by the prisoner or on his behalf before the expiry of the period of parole, extend the period of for such further on period or periods on
ig h
which the it on is clear parole of the is
conditions
prisoner
granted parole. It is, however, provided that the total period of parole as extended shall not exceed 90 days.
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Thus, release
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the was that for while such Rule period contingencies for extending
originally
permits
exceeding 30 days at a time, under Rule 25 the period of parole can be extended up to 90 days. It is, therefore, clear that if a prisoner is released on parole on account specified
om
therein and if before expiry of the initial period of parole, an application made the
period of parole, the extension can be granted by the competent authority. It is pertinent to note that
the extension of period of parole is not restricted on the occurrence of a particular contingency, but is
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parole same 19 not
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available in respect of any/all contingencies that have been specified in Rule 19. This, therefore,
16.
parole is not an absolute right. The same can be availed of in case of occurrence of the contingencies mentioned in Rule 19 of the Rules 1959. Thus, in
case of serious illness, delivery of a pregnant woman prisoner or in case of house collapse, floods, fire or earthquake, a prisoner if released on parole can seek extension of the period of parole if the
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contingencies so warrant up to a period of 90 days. The proviso to Rule 19 has merely restricted the
release on parole for a period of one year after the expiry of last parole except in case of death of the nearest relative mentioned in Rule 19. It, therefore, cannot be said that the entitlement of a prisoner to be released on parole is totally taken away. The
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same has merely been restricted and made permissible only if within a period of one year after the expiry of last parole, death of a close relative takes
place.
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said to be unreasonable or unjustified. We have found that the State was required to introduce
Moreover, the right to be released on parole is on the basis of administrative instructions framed in exercise of the power conferred by Section 59 of the Prisons Act. Rules of By framing proviso to Rule 19 in the there is no dent caused to the
1959,
personal liberty of a prisoner whose entitlement to be released on parole has been kept intact. It,
therefore, cannot be said that by introducing proviso to Rule 19 of the Rules of 1959, the same results in breach of provisions of Article 21 of the
Constitution of India.
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17.
om
Division Bench judgment of this Court in the case of Namdeo Tarfe (supra) is concerned, the said judgment considers the provisions of Rule 19 as it stood after its amendment with effect from 7-2-2007. Proviso to
Rule 19 was not in existence and in that context, the Division Bench of this Court observed that Rule 19 as it stood did not put any embargo on the right of the prisoner seeking parole within one year from the date of last surrender. In the present case, the validity
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rt
such
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of the proviso to Rule 19 as amended on 23-2-2012 is under avail challenge. in the The aforesaid context judgment as the is
18.
to Rule 19 of the Rules of 1959 has been found by us to be without any merit, Criminal Writ Petition No. 272 of 2012 that has been filed by 78 convicts and Criminal Writ Petition No.371 of 2013 filed by 2
convicts for aforesaid declaration, therefore, stand dismissed. and Similarly, in Writ Petition No.355/2012 Writ Petition No.366 of 2012, the
Criminal
om
ba y
petitioners seek grant of parole before expiry of period of one year of expiry of their last parole. In the view that we have taken, Criminal Writ Petition Nos.355/2012 and 366/2012 are also dismissed. Fees of the learned Counsel appointed to represent the petitioners in Criminal Writ Petition Nos.272/2012, 355/2012 and 366/2012 are quantified at Rs.1500/- each
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JUDGE
//MULEY//
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JUDGE
present
unamended
The reliance,
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of no