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Bombay HC slams Prison Superintendent for selectively denying emergency parole to prisoners

Prison Superintendent jailed for 7 days for denying parole to eligible prisoners

Sabrangindia 05 Apr 2022

Central Jail

In its judgement dated March 16, 2022, the Nagpur Bench of the Bombay High Court held Superintendent of Central Prison, Anupkumar Kumre guilty of contempt of court and ordered to jail him for seven days for selectively denying emergency parole during Covid-19 pandemic.

The bench comprising Justices VM Deshpande and Amit Borkar, stated its concern with the selective application of binding precedent of the Court affecting the liberty of the prisoners and subversion of the rule of law. As per the judgement, as many as 35 prisoners who were eligible for being released on emergency parole were denied the right, while six prisoners were released on emergency parole even though they were not eligible. The Court therefore claimed that the binding precedent of the Bombay High Court in the case of Milind Ashok Patil and Ors vs State of Maharashtra, (in Criminal Writ Petition-ASDB-LD-VC No.65/2020) was intentionally disobeyed at least in 41 times in this case!

The Court observed, “It is not permissible for the Authorities and the Tribunals to ignore this Court's decisions or refuses to follow this Court's decisions on the pretext that an appeal is filed in the Supreme Court which is pending or that steps are being taken to file an appeal. If any Authority or the Tribunal refuses to follow any decision of this Court on the above grounds, it would be clearly guilty of committing contempt of this Court and is liable to be proceeded against.” The Bench further stated, “The judgments and orders passed by Supreme Court are the law of the land in terms of Article 141 of the Constitution of India. No Court or Tribunal and Authority can ignore the law laid down by Hon’ble Supreme Court or parent High Court. Selective disobedience would create confusion in the administration of law and result in irretrievable loss of respect for the law.”

Commenting on a prisoner’s constitutional rights, the Court stated, “The grant of parole is essentially an executive function. If the Court finds that the Government's action in rejecting the grant of parole to a prisoner has the effect of suffocating the Articles 14 & 21 of the Constitution of India, in that case, the Court must act to restore the rule of law and respect the residuary fundamental rights of the prisoners…”

The court cited the Supreme Court case of Smt. Poonam Lata vs M.L. Wadhawan & Ors reported in (1987) 3 SCC 347 wherein it observed that release on parole is a wing of the reformative process and is expected to provide an opportunity to the prisoner to transform himself into a useful citizen.

According to the Court, “The purpose of releasing a prisoner on parole or furlough is to reform him ……The purpose is also to give an opportunity to the prisoner to mix up with the members of his family and the Society so that he may feel that he is also a member of the Society.”

On May 8, 2020, the State of Maharashtra had introduced Rule 19(1)(c) in the Maharashtra Prisons (Bombay Furlough and Parole) (Amendment) Rules, 2020 which provided for the grant of emergency parole in view of the emergent Corona pandemic. In view of this, Prisoner Hanuman Anandrao Pendam, filed a Writ Petition seeking directions against Prisoner Superintendent Anupkumar Kumre for denying him emergency patrol. Mr. Kumre justified the denial of parole stating that Mr. Hanuman was absconding for 14 days after expiry of the period of furlough leave of 21 days. However, curiously, he took a U-turn claiming that Mr. Hanuman had reported on time and was instead out for undergoing a Covid test.

The bench made an important remark on the suo-moto actions taken by the Superintendent stating, “The absence of arbitrary power is the first essential ingredient of the rule of law upon which the whole Constitutional system is based. In a system governed by the rule of law, the discretion when conferred upon the Executive Authorities needs to be exercised within clear and defined limits.”

The counsel for Superintendent Kumre contended that he had tendered a bonafide, sincere and an unconditional apology at the first instance. However, based on the averments made by Mr. Kumre, the Court found that the apology was neither unconditional nor bonafide. Basis this, accepting without admitting that the unconditional apology was made at the inception of the proceedings, the Court refused to accept the apology as the Superintendent persistently disregarded the Authority of the Court and continued with his illegal act in violation of the binding precedent of this Court. In this regard, the court stated, “Simultaneous tendering of a justification and apology would be inconsistent with the concept of an apology. It is expected of a person tendering an unqualified apology not to render justification for the contemptuous conduct. Normally tendering of an apology is an act of remorse to purge the guilt of offence by the Contemnor. It cannot be permitted to be used as a universal formula to frustrate the action under the Contempt of Courts Act, particularly in cases where a person's liberty is affected by selective application of the rule of law.”

Moreover, the Court was of the opinion that “Tendering an apology is not an iron-cast rule of dropping contempt proceedings……the apology tendered by him cannot be accepted by this Court inasmuch as a selective violation of the binding precedent of the Court is wilful, intentional and prejudicial affecting the rights of the poor prisoners. They have no financial capacity to challenge illegal exercise power by the Contemnor. Such selective compliance of binding precedent not only has the adverse effect on rights of poor prisoners and affects the faith of prisoners in the administration of justice but also lowers the dignity of the Court by conveying that binding precedents of this Court can be selectively circumvented so as to frustrate the very object of such law of precedent, thereby undermining the dignity of the Court.”

The Court imposed a fine of Rs. 5,000/- in exercise of the power under Article 215 of Constitution of India which states that every High Courts shall be a Court of Record and shall have all the powers of such a Court including the power to punish for contempt of itself. This Constitutional power is an absolute power which cannot be abridged by any statutory law.

However, the court suspended the sentence of imprisonment and fine for a period of 10 weeks, “allowing him to approach the SC for relief”, as reported by LiveLaw.

The said judgement may be read here: 

Related:

Prisoners have right to access medical records under Article 21: Bom HC

House Arrest: A window of opportunity

Prison Watch: Rajasthan HC directs prisons to educate inmates about their rights

Bombay HC slams Prison Superintendent for selectively denying emergency parole to prisoners

Prison Superintendent jailed for 7 days for denying parole to eligible prisoners

Central Jail

In its judgement dated March 16, 2022, the Nagpur Bench of the Bombay High Court held Superintendent of Central Prison, Anupkumar Kumre guilty of contempt of court and ordered to jail him for seven days for selectively denying emergency parole during Covid-19 pandemic.

The bench comprising Justices VM Deshpande and Amit Borkar, stated its concern with the selective application of binding precedent of the Court affecting the liberty of the prisoners and subversion of the rule of law. As per the judgement, as many as 35 prisoners who were eligible for being released on emergency parole were denied the right, while six prisoners were released on emergency parole even though they were not eligible. The Court therefore claimed that the binding precedent of the Bombay High Court in the case of Milind Ashok Patil and Ors vs State of Maharashtra, (in Criminal Writ Petition-ASDB-LD-VC No.65/2020) was intentionally disobeyed at least in 41 times in this case!

The Court observed, “It is not permissible for the Authorities and the Tribunals to ignore this Court's decisions or refuses to follow this Court's decisions on the pretext that an appeal is filed in the Supreme Court which is pending or that steps are being taken to file an appeal. If any Authority or the Tribunal refuses to follow any decision of this Court on the above grounds, it would be clearly guilty of committing contempt of this Court and is liable to be proceeded against.” The Bench further stated, “The judgments and orders passed by Supreme Court are the law of the land in terms of Article 141 of the Constitution of India. No Court or Tribunal and Authority can ignore the law laid down by Hon’ble Supreme Court or parent High Court. Selective disobedience would create confusion in the administration of law and result in irretrievable loss of respect for the law.”

Commenting on a prisoner’s constitutional rights, the Court stated, “The grant of parole is essentially an executive function. If the Court finds that the Government's action in rejecting the grant of parole to a prisoner has the effect of suffocating the Articles 14 & 21 of the Constitution of India, in that case, the Court must act to restore the rule of law and respect the residuary fundamental rights of the prisoners…”

The court cited the Supreme Court case of Smt. Poonam Lata vs M.L. Wadhawan & Ors reported in (1987) 3 SCC 347 wherein it observed that release on parole is a wing of the reformative process and is expected to provide an opportunity to the prisoner to transform himself into a useful citizen.

According to the Court, “The purpose of releasing a prisoner on parole or furlough is to reform him ……The purpose is also to give an opportunity to the prisoner to mix up with the members of his family and the Society so that he may feel that he is also a member of the Society.”

On May 8, 2020, the State of Maharashtra had introduced Rule 19(1)(c) in the Maharashtra Prisons (Bombay Furlough and Parole) (Amendment) Rules, 2020 which provided for the grant of emergency parole in view of the emergent Corona pandemic. In view of this, Prisoner Hanuman Anandrao Pendam, filed a Writ Petition seeking directions against Prisoner Superintendent Anupkumar Kumre for denying him emergency patrol. Mr. Kumre justified the denial of parole stating that Mr. Hanuman was absconding for 14 days after expiry of the period of furlough leave of 21 days. However, curiously, he took a U-turn claiming that Mr. Hanuman had reported on time and was instead out for undergoing a Covid test.

The bench made an important remark on the suo-moto actions taken by the Superintendent stating, “The absence of arbitrary power is the first essential ingredient of the rule of law upon which the whole Constitutional system is based. In a system governed by the rule of law, the discretion when conferred upon the Executive Authorities needs to be exercised within clear and defined limits.”

The counsel for Superintendent Kumre contended that he had tendered a bonafide, sincere and an unconditional apology at the first instance. However, based on the averments made by Mr. Kumre, the Court found that the apology was neither unconditional nor bonafide. Basis this, accepting without admitting that the unconditional apology was made at the inception of the proceedings, the Court refused to accept the apology as the Superintendent persistently disregarded the Authority of the Court and continued with his illegal act in violation of the binding precedent of this Court. In this regard, the court stated, “Simultaneous tendering of a justification and apology would be inconsistent with the concept of an apology. It is expected of a person tendering an unqualified apology not to render justification for the contemptuous conduct. Normally tendering of an apology is an act of remorse to purge the guilt of offence by the Contemnor. It cannot be permitted to be used as a universal formula to frustrate the action under the Contempt of Courts Act, particularly in cases where a person's liberty is affected by selective application of the rule of law.”

Moreover, the Court was of the opinion that “Tendering an apology is not an iron-cast rule of dropping contempt proceedings……the apology tendered by him cannot be accepted by this Court inasmuch as a selective violation of the binding precedent of the Court is wilful, intentional and prejudicial affecting the rights of the poor prisoners. They have no financial capacity to challenge illegal exercise power by the Contemnor. Such selective compliance of binding precedent not only has the adverse effect on rights of poor prisoners and affects the faith of prisoners in the administration of justice but also lowers the dignity of the Court by conveying that binding precedents of this Court can be selectively circumvented so as to frustrate the very object of such law of precedent, thereby undermining the dignity of the Court.”

The Court imposed a fine of Rs. 5,000/- in exercise of the power under Article 215 of Constitution of India which states that every High Courts shall be a Court of Record and shall have all the powers of such a Court including the power to punish for contempt of itself. This Constitutional power is an absolute power which cannot be abridged by any statutory law.

However, the court suspended the sentence of imprisonment and fine for a period of 10 weeks, “allowing him to approach the SC for relief”, as reported by LiveLaw.

The said judgement may be read here: 

Related:

Prisoners have right to access medical records under Article 21: Bom HC

House Arrest: A window of opportunity

Prison Watch: Rajasthan HC directs prisons to educate inmates about their rights

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