Bombay High Court
Hiraman Rama Bhoye (C-5306) vs The State Of Maharashtra And ... on 1 April, 2021
Bench: Ravindra V. Ghuge, B. U. Debadwar
1 Cri.W.P. 438-2021 & Others 8.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
907 CRIMINAL WRIT PETITION NO.438 OF 2021
NAGESH S/O SHANKAR MATHPATI (C-5317) ..PETITIONER
VERSUS
THE STATE OF MAHARASHTRA & ANOTHER ..RESPONDENTS
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. S. R. Kale
....
AND
908 CRIMINAL WRIT PETITION NO.439 OF 2021
SUDDAM S/O RAMU SANAP (C-5304) ..PETITIONER
VERSUS
THE STATE OF MAHARASHTRA & ANOTHER ..RESPONDENTS
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. K. S. Patil
....
AND
909 CRIMINAL WRIT PETITION NO.440 OF 2021
SOMWAR KALYA VEDGA (C-5314) ..PETITIONER
VERSUS
THE STATE OF MAHARASHTRA & ANOTHER ..RESPONDENTS
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. K. S. Patil
....
AND
910 CRIMINAL WRIT PETITION NO.441 OF 2021
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2 Cri.W.P. 438-2021 & Others 8.odt
DATTA BHIKA TONGARE (C-5303) ..PETITIONER
VERSUS
THE STATE OF MAHARASHTRA & ANOTHER ..RESPONDENTS
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondent Nos. 1 and 2 : Mr. R.V. Dasalkar
....
AND
928 CRIMINAL WRIT PETITION NO.448 OF 2021
SANTOSH VIJAY THORAT (C-5281) ...PETITIONER
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER ..RESPONDENTS
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. S. J. Salgare
....
AND
929 CRIMINAL WRIT PETITION NO.449 OF 2021
ANIL SHRAWAN MORE (C-5296) ..PETITIONER
VERSUS
THE STATE OF MAHARASHTRA & ANOTHER ..RESPONDENTS
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. S.G. Sangle
.......
AND
930 CRIMINAL WRIT PETITION NO.451 OF 2021
HIRAMAN RAMA BHOYE (C-5306) ..PETITIONER
VERSUS
THE STATE OF MAHARASHTRA & ANOTHER ..RESPONDENTS
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3 Cri.W.P. 438-2021 & Others 8.odt
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. K. S. Patil
.....
AND
931 CRIMINAL WRIT PETITION NO.452 OF 2021
RUPESH TULSIRAM GAIKWAD (C-5323) ..PETITIONER
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. R. V. Dasalkar
....
932 CRIMINAL WRIT PETITION NO.453 OF 2021
GANESH RAMSINGH SABLE (C-5302) ...PETITIONER
VERSUS
THE STATE OF MAHARASHTRA & ANOTHER ...RESPONDENTS
....
Advocate for Petitioners : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. S. J. Sangle
.....
CORAM : RAVINDRA V. GHUGE AND
B. U. DEBADWAR,JJ.
DATE : 01-04-2021
PER COURT :-
1. In all these matters, these petitioners seek to challenge
the rejection of their applications fled under Rule 19(1)(C) of
the Maharashtra Prisons ( Mumbai Furlough and Parole) Rules,
4 Cri.W.P. 438-2021 & Others 8.odt
1959, vide the impugned orders set out in the prayer clauses.
The grievance of these petitioners is that their applications
have been rejected as all these petitioners, have not availed
of, either parole or furlough leave in their entire stay in prison
as convicts serving out their sentences. Most of them have
been in prison in between 5 to 10 years. Except Mr. Tongare,
who has availed of a furlough leave only once, none of the
other petitioners have ever applied for the parole or furlough
leave.
2. In the matter of Pratap Dinkar Chavan Vs. The State of
Maharashtra and Another (Criminal Writ Petition NO. 705 of
2020) , this Court ( Ravindra V. Ghuge, & Shrikant D. Kulkarni,
JJ) has considered the object of the introduction of the
Government circular dated 08th May 2020, in the light of the
recommendations of the Additional Director General of Police
(Prisons) Shri. Sunil B. Ramanand, I.P.S. and the
recommendations of the High Power Committee headed by
the Hon'ble Shri. Justice A.A. Sayed, as follows :-
'' We fnd that the State of Maharashtra had amended
the Maharashtra Prisons ( Mumbai Furlough and Parole)
Rules, 1959, vide the Maharashtra Notifcation dated
08.05.2020. By virtue of the said amendment, Rule
19(1) (C) was introduced in the said Rules with the aim
and object of preventing the spread of the corona virus
5 Cri.W.P. 438-2021 & Others 8.odt
in the prisons, as almost all the prisons were congested.
The State Government intends to de-congest the prisons
and hence, Rule 19(1)(C) was introduced for a limited
purpose in the backdrop of the COVID-19 pandemic.
3. It is thus obvious that in a group of matters, this Court
had come to a conclusion that the intent and purpose of the
circular dated 08.05.2020, thereby introducing Rule 19 (1) (C)
to the 1959 Rules in extraordinary circumstances, considering
the COVID- 19 pandemic caused by the Wuhan virus, was to
de-congest the prisons so as to prevent the outbreak of the
pandemic inside the prisons. It was also concluded that the
said circular did not intend to empty the prisons by virtue of
Rule 19(1)(C).
4. A co-ordinate Bench of this Court has come to a
conclusion that emergency parole need not mean that the
prisoners should make an application and that the Jail
Superintendent can suo motu grant emergency parole without
asking for applications. The learned Full Bench of this Court,
on a reference made by us in Nagnath Sakharam Mane Vs. The
State of Maharashtra and Another, (Criminal Application No.
4118 of 2019), has interpreted clause 2C (ii) of the notifcation
dated 08.05.2020, and concluded that after emergency parole
6 Cri.W.P. 438-2021 & Others 8.odt
for 45 days is granted under Rule 19(1)(C), a convict need not
apply for extension of the said parole since he would be, ipso
facto, entitled for an extension of blocks of 30 days,
continuously, till such time the said notifcation is enforced.
The learned Chief Public Prosecutor submits that the learned
Full Bench has therefore, concluded that once a convict is
released on emergency parole under Rule 19(1)(C), he stands
released till the notifcation is recalled and there is no
requirement for him to make an application for extension.
5. Considering the various judicial pronouncements of this
Court at Aurangabad, at Nagpur and the principal seat at
Bombay, as well as the view taken by the learned Full Bench in
Pintu Uttam Sonal Vs. The State of Maharashtra, Criminal W.P.
(stamp) No. 3206 of 2020), the learned Chief Public Prosecutor
submits that it would be necessary for him to advice the
State, through the Additional Chief Secretary, Home
Department and also seek clarifcation on the following
counts :-
(A) The circular dated 08.05.2020, needs a re-look by the
State in order to ensure that there is uniformity in
considering applications of prisoners for grant of
emergency parole under Rule 19(1)(C).
7 Cri.W.P. 438-2021 & Others 8.odt
(B) Whether it would be in the interest of the society that a
convict released on emergency parole will never
return back to the prison until the circular is altered or
repelled or replaced by a new circular.
(C) Whether the circular dated 08/05/2020 is aimed at de-
congesting the Prisons or to empty the prisons by
releasing all eligible inmates ?
(D) Some Open Prisons, for example, the Paithan Open
Prison in district Aurangabad, has 827 Acres of land
within an area of 70 square kilometers, out of which 325
Acres of land are under cultivation. Sugarcane and
other crops are reaped. This leads to generating income
in crores of rupees for the State Government. There are
220 cattle (live stock) who have to be kept in a healthy
condition so as to be utilized for agricultural activities.
Therefore, should the prisons be emptied by orders
under Rule 19(1)(C). ?
(E) At least 1/3rd of the total occupancy strength of the
prisons will have to be maintained so as to take care of
the live stock and the agricultural activities and,
therefore, the prisoners can be released on the basis of
their eligibility under Rule 19(1)(C), so as to de-congest
the prisons and not to empty the prisons.
8 Cri.W.P. 438-2021 & Others 8.odt
6. We are aware that the circular dated 08.05.2020, does
not grant the beneft of Rule 19(1)(C) to the prisoners who are
convicted for committing serious economic ofences, Bank
scams, ofences under the Special Act other than the Indian
Penal Code, etc. This has been interpreted by the learned Full
Bench at our Principal Seat in Criminal Writ Petition No.
( Stamp) No. 3206 of 2020, in the matter of Pintu S/o
Uttam Sonale Vs. State of Maharashtra . It was held that
those prisoners convicted under any Special Act set out in the
circular dated 08.05.2020, and those who have committed
serious economic ofences/ Bank Scam etc., would be
disentitled from the beneft of Rule 19(1)(C).
7. We appreciate the concern voiced by the learned Chief
Public Prosecutor and the disclosure of his intention that he
intends to have a conversation with the Additional Chief
Secretary, Home, State of Maharashtra to have more clarity
with regard to the circular dated 08.05.2020 on the issues set
out in paragraph No.5, hereinabove. At the same time, we also
cannot ignore the fact that all these petitioners are from the
Open Prison at Paithan which has 827 Acres of land within a
periphery of 70 square K.Ms. which need to be protected. 325
Acres are under cultivation. There are 220 cattle who have to
9 Cri.W.P. 438-2021 & Others 8.odt
be protected and their health should be safeguarded. For these
purposes, the prisons need to have sufcient amount of
prisoners who can be utilized for such purposes, by keeping
in view the object of containing the outbreak of COVID-19
pandemic and, for which, physical distancing will have to be
maintained. Those convicts who are not entitled for the
beneft of Rule 19 (1)(C) can also be utilized for the said
purpose.
8. We are informed that, today, there are only 41 prisoners
in the Open Air Prison at Paithan which has a maximum
approved occupancy of 500 inmates. A view has been taken
by a co-ordinate Bench at Aurangabad that there should not
be discrimination amongst those who are released under Rule
19(1) (C) and those who are awaiting such orders. This issue
can also be tackled by the State Government by transferring
some prisoners to places where the strength of the prisoners
has dwindled on account of many being released on
emergency parole or under the orders of this Court, so as to
de-congest those prisons which are already congested and
have sufcient strength of prisoners in those prisons where the
strength of the prisoners has gone down drastically due to the
above factors.
10 Cri.W.P. 438-2021 & Others 8.odt
9. While considering the cases in hand, we fnd that only
one prisoner Mr. Datta Bhika Tongare, has availed of furlough
leave on one occasion. Rest of the eight petitioners have not
availed of furlough or parole leave even once in their entire
duration/ stay in the prison. Keeping in view that this Court
has passed hundreds of orders granting emergency parole, we
fnd that these eight prisoners could be granted emergency
parole so that they can be out of the prison at least once as
has been held by this Court in Kavita Dilip Baviskar Vs. The
State of Maharashtra ( Criminal Writ Petition No. 571 of 2020 )
vide Judgment dated 30.06.2020.
10. In view of the above, Writ Petition No. 441 of 2021 ( Datta
Bhika Tongare) Vs. The State of Maharashtra and another) is
dismissed. The petitioner Datta Bhika Tongare, would be
eligible to renew his request after six months for emergency
parole under Rule 19(1)(C).
11. All other Writ Petitions bearing Criminal Writ Petition Nos.
438/2021,439/2021, 440/2021, 448/2021 449/2021,451/2021,
452/2021 and 453/2021 are allowed. The impugned orders are
set-aside and these petitioners, subject to the prescribed
conditions applicable, shall be released on emergency parole
on 9th April, 2021.
11 Cri.W.P. 438-2021 & Others 8.odt
12. Needless to state that, we are passing this order since a
co-ordinate Bench of this Court has taken a view that there
should not be discrimination amongst the applicants. We,
however, make it clear that we are not laying down any
precedent by this order since the intention of the State
Government is not to empty all the prisons in the State under
Rule 19(1)(C). Rotation amongst prisoners released under Rule
19(1)(C) could also be efected.
13. In so far as the orders being passed by the
Superintendent of Jails, thereby rejecting applications on a
solitary ground that the applicant has not availed of parole or
furlough leave at least on two occasions in the past before
moving an application under Rule 19(1)(C), having been held
by this Court to be no impediment for considering their
applications, we accept the apology tendered by the
Superintendent of Paithan Open District prison and his
undertaking that the applications would not be rejected on this
solitary ground in the future.
(B.U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)
YSK/
