Nagpur :-Division bench of Justice Vinay Joshi and Valmiki Menezes JJ has held that even a convict convicted for offences of rape is entitled to death parole.
Wasim Khan Azim Khan who is a convict convicted under sec 376D, 397, 354, 143,147,148,149 and other provisions of IPC. His mother has died and therefore he had applied for his release on death parole. His application was initially allowed granting death parole for 3 days on payment of police escort charges. Since he was not able to the escort charges, he moved an application for modifying the order and accordingly order was modified and he was allowed to avail death parole of 1 day in police escort but without payment of police escort charges.
Said order was challenged by Wasim khan Azim khan before high court on the ground that he could not have been directed to avail parole under police escort and when law permits a period of 7 days he could not have been directed to avail parole for a single day.
After hearing Adv Mir Nagman Ali for petitioner at length court allowed the petition by observing
5. Learned Counsel appearing for the petitioner would submit that seriousness of crime and the extent of punishment except death is no criteria to curtail the period of emergency parole as specified under Rule 19(1)(A) of the Rules of 1959. Moreover, the Authority has not assigned reason for imposing restriction of police escort. In support of said contention the petitioner heavily relied on the decision of this Court in case of Dilip s/o Sopan Pawar vs. State of Maharashtra and anr. (Criminal Writ Petition No.354 of 2019) dated 18.02.2019. Particularly, our attention has been invited to paragraph 7 of the said decision which reads as below :
“Two issues arise in these Petitions. We have already quoted clause (A) of Sub-Rule (1) of Rule 19 of the said Rules of 1959. If this provision is considered in the context of Sub-Rule (2) of Rule 19 which deals with the regular parole, even if a prisoner attracts a disqualification for grant of furlough as per Rule 4 of the said Rules of 1959, on that ground, emergency parole cannot be denied. Sub-Rule (2) of Rule 19 specifically states that all the prisoners who are eligible to grant of furlough, shall be eligible for the regular parole. Thus, if a prisoner is dis-entitled to furlough by virtue of the disqualifications laid down in Rule 4, he is dis-entitled to regular parole under Sub-Rule (2) of Rule 19. Such a condition is not incorporated in Sub-Rule (1) of Rule 19 which deals with the emergency parole.”
6.We can quite see that except the rider of convict being foreigner and death sentence has been imposed, no other restriction has been imposed for grant of emergency parole. The restrictions imposed for grant of regular parole would not apply for grant of emergency parole as observed by this Court in above decision, and therefore, the ground about seriousness of offence, is insignificant.
7. On the point of period of emergency parole, it has been submitted that without assigning any reason, the Authority has curtailed the period to one day from 14 days provided by the Rules, 1959. In above referred decision, this Court took a view that when the power are vested with the Authority to grant emergency parole for 14 days, unless reasons are recorded, the period cannot be curtailed.
Moreover, it is observed that the Authority must state the reasons for providing the police escort.
8. We have examined the impugned orders, wherein we are unable to find a single reason about curtailment the period or grant of police escort. Moreover, the reply affidavit states that the police verification report was in favour of the petitioner – convict. In absence of reasons, we find no justification for curtailment of parole period and the order of police escort. In view of amended Rule 19(1)(A) of the Rules 1959, the emergency parole shall be initially for 7 days, which can be extended by further 7 days. Thus, the petitioner is entitled for the emergency parole of 7 days without extension.
Adv Mir Nagman Ali appeared for Wasim khan while AGP Nandita Tripathi represented the state.
@ file photo
