Case Note & Summary
The petitioner, Abdul Gani Ismail Turk, was convicted in the 1993 Mumbai Serial Bomb Blast case and sentenced to death by the TADA Court. The Supreme Court commuted his death sentence to life imprisonment on 21.03.2013. He applied for furlough leave, which was rejected by the D.I.G. (Prisons) on 06.01.2013 citing an adverse police report and his conviction for terrorist crimes. The appellate authority rejected his appeal on 13.03.2014 relying on Sub Rule (13) of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959, which excludes prisoners convicted of terrorist crimes from furlough. This sub-rule was introduced by amendment on 23.02.2012. The petitioner challenged these orders by way of a criminal writ petition before the Bombay High Court. The State argued that since the Supreme Court commuted the sentence after the amendment, the amended rules applied. The court rejected this argument, holding that the sub-rule cannot be applied retrospectively to offences committed before its introduction. The court noted that the petitioner's conviction was for acts that occurred in 1993, long before the amendment. The court allowed the petition, set aside the impugned orders, and directed the authorities to reconsider the furlough application without reference to Sub Rule (13).
Headnote
A) Prison Law - Furlough Eligibility - Retrospective Operation of Rules - Sub Rule (13) of Rule 4 of Prisons (Bombay Furlough and Parole) Rules, 1959 - The court considered whether a prisoner convicted for terrorist crimes committed before the introduction of Sub Rule (13) on 23.02.2012 could be denied furlough under that rule. The court held that the rule, being procedural, cannot be applied retrospectively to offences committed prior to its enactment, as it would affect substantive rights. The court allowed the writ petition and directed the authorities to reconsider the petitioner's furlough application without reference to Sub Rule (13) (Paras 5-6).
Issue of Consideration
Whether Sub Rule (13) of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959, which excludes prisoners convicted of terrorist crimes from furlough, applies to a prisoner convicted for offences committed prior to the introduction of that sub-rule on 23.02.2012.
Final Decision
The court allowed the writ petition, set aside the orders dated 06.01.2013 and 13.03.2014, and directed the authorities to reconsider the petitioner's furlough application without reference to Sub Rule (13) of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959.
Law Points
- Retrospective operation of prison rules
- Furlough eligibility
- Interpretation of procedural rules
- Non-retroactivity of substantive provisions
Case Details
2014 LawText (BOM) (08) 141
Criminal Writ Petition No.517/2014
B. P. Dharmadhikari, V. M. Deshpande
Ms. S. M. Bhangde for petitioner, Ms T. H. Khan, A.P.P. for respondents
The State of Maharashtra, The Inspector General of Prisons, The D.I.G. Prisons, The Superintendent, Nagpur Central Prison
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Nature of Litigation
Criminal writ petition challenging rejection of furlough leave
Remedy Sought
Petitioner sought quashing of orders rejecting his furlough application and direction to grant furlough
Filing Reason
Petitioner's furlough application was rejected by D.I.G. (Prisons) on 06.01.2013 and appellate authority on 13.03.2014 citing adverse police report and conviction under terrorist crimes, relying on Sub Rule (13) of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959
Previous Decisions
Petitioner was sentenced to death by TADA Court, commuted to life imprisonment by Supreme Court on 21.03.2013
Issues
Whether Sub Rule (13) of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959 applies retrospectively to offences committed before its introduction on 23.02.2012.
Submissions/Arguments
Petitioner argued that the amended rule cannot be applied retrospectively to offences committed in 1993.
Respondent argued that since the Supreme Court commuted the sentence after the amendment, the amended rules apply.
Ratio Decidendi
Sub Rule (13) of Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959, being procedural, cannot be applied retrospectively to offences committed before its introduction on 23.02.2012, as it would affect substantive rights of the prisoner.
Judgment Excerpts
Sub Rule (13) of Rule 4, which is relevant for decision of the present writ petition is reproduced as under: (13). Prisoners convicted for offences such as dacoity, terrorist crimes, kidnapping, smuggling including those convicted under the Narcotic Drugs and Psychotropic Substances act, 1985 (61 of 1985) and foreigner prisoners;
The submission of the learned A.P.P, in our view, cannot be accepted for the reason that by the order in appeal, the Hon'ble Apex Court found imposition of death sentence unjust and, therefore, proceeded to correct the error committed by the TADA Court.
Procedural History
Petitioner was convicted by TADA Court and sentenced to death. Supreme Court commuted death to life on 21.03.2013. Petitioner applied for furlough; D.I.G. (Prisons) rejected on 06.01.2013. Appeal rejected by appellate authority on 13.03.2014. Petitioner filed Criminal Writ Petition No.517/2014 before Bombay High Court, which was allowed on 25.08.2014.
Acts & Sections
- Prisons (Bombay Furlough and Parole) Rules, 1959: Rule 4, Sub Rule (13)
