2012 ALL MR (Cri) 3475
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
P.V. HARDAS AND A.B. CHAUDHARI, JJ.
Mohammad Wasim Mohammad Imam Bhiwaniwale Vs. The State Of Maharashtra & Anr.
12th September, 2012
Petitioner Counsel: Shri S.D. CHANDE
Respondent Counsel: Shri R.S. NAYAK
Prisons Act (1894), S.59 - Prisons (Bombay Furlough and Parole) Rules (1959), R.19 - Release on Parole - Claim for, by petitioner for reason of death of his grandmother - Even grandmother would also fall in category of nearest relative in view of use of expression "such as" in Rule 19 - Petitioner entitled to be released on parole. (Para 5)
Royal Hatcheries Pvt. Ltd. and others Vs. State of A.P. and others, 1994 Supp (1) SCC 429 [Para 5]
Bombay Municipal Corporation and another Vs. Daily Taj Pvt. Ltd., 2001(2) ALL MR 629 =AIR 2001 Bom. 263 [Para 5]
2. Shri Chande, learned Counsel for the petitioner, in support of the present criminal writ petition, argued that the petitioner is entitled to be released on parole since grandmother of the petitioner expired and he is required to attend the rituals. The learned Counsel relied on Rule 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959 as amended in support of his submissions.
3. Per contra, Shri Nayak, learned Additional Public Prosecutor for the respondents, opposed the petition and argued that the list of the persons mentioned in Rule 19 cannot be stretched to mean that even the grandmother of the prisoner would be included in the said expression and, therefore, he prayed for dismissal of the criminal writ petition.
"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 cases of serious illness or death of nearest relatives such as father, mother, brother, sister, spouse, children or marriage of brother, sister and children of the 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."
Rule 19 was amended in the year 2012 substituting the earlier Rule, which was amended in the year 2007. Perusal of the above existing amended Rule shows use of the expression "such as".
5. The question that falls for consideration before us is whether grandmother would also fall in the category of nearest relative in view of the use of the expression "such as" in Rule 19. We find from the decision of the Supreme Court in the case of Royal Hatcheries Pvt. Ltd. and others vs. State of A.P. and others (1994 Supp (1) SCC 429) and the decision of the learned Single Judge of this Court in the case of Bombay Municipal Corporation and another vs. Daily Taj Pvt. Ltd. (AIR 2001 Bombay 263) : [2001(2) ALL MR 629], that the terminology "such as" is illustrative in nature and not exhaustive. That being so, person of the category or class described in the Rule would also be covered by the description of nearest relative mentioned in Rule 19 though not specifically mentioned therein. In the instant case, the petitioner has claimed parole for the reason of death of his grandmother. Applying the above canon of interpretation, grandmother would also form the part and parcel of the said class of nearest relative. Therefore, looking to the illustrative nature of the said terminology, we hold that even the grandmother would be included in the said expression. That being so, we are inclined to make the following order :
Criminal Writ Petition No.434/2012 is allowed. Rule is made absolute in terms of prayer clauses (a) and (a-i) of the criminal writ petition. The petitioner shall be released on parole on the usual terms and conditions.