Bombay High Court
Shahbaj Majid Pathan vs The State Of Maharashtra And Anr on 22 April, 2021
Bench: S.S. Shinde, Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 498 OF 2021
Shahbaj Majid Pathan
Age- 21 years, Occ: Labour
R/at Khadkali, Bhadrakali
Dist. Nashik
Presently lodged at Nashik
Road Central Prison, Nashik. ...Petitioner
Versus
1. The State of Maharashtra
Through Bhadrakali Police Station,
Sinnar, Nashik.
2. The State of Maharashtra
Through its Principal Secretary,
Ministry of Home Affairs,
Mantralaya, Mumbai.
3. Superintendent, Nashik Road
Central Prison, Nashik. ...Respondents
...
Mr. Ateet Shirodkar for Petitioner.
Mr. J P Yagnik, APP for State.
...
CORAM : S. S. SHINDE &
MANISH PITALE, JJ.
DATE : 22nd APRIL, 2021.
JUDGMENT [PER S.S. SHINDE, J.]:
. Rule. Rule made returnable forthwith and heard with the
consent of learned counsel appearing for the parties.
2. The Petitioner has filed the present petition for the
following substantial reliefs:
Bhagyawant Punde
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a) That this Hon'ble Court may kindly be
pleased to enlarge the petitioner on parole for 45
days in terms of recommendations made by the
High Powered Committee constituted by the
State of Maharashtra under the direction dated
23.03.2020 passed bu the Hon'ble Supreme
Court in Suo Moto Writ Petition (C) No. 01 of
2020 on conditions and terms which this
Hon'ble Court may deem fit and appropriate.
3. The Petitioner herein (Convict No. C-11843), is convicted
for the offences under Section 302 read with 34 of IPC for life and
fine of Rs. 25000/-, in Sessions Case No. 210 of 2016 on
03.07.2018 by the Sessions Court at Nashik.
4. Learned counsel appearing for the Petitioner submits
that the petitioner has undergone more than 4 years of
imprisonment and he is lodged in the Nashik Road Central prison.
It is submitted that the application of the petitioner to release him
on emergency (Covid-19) parole was rejected on the ground that the
Petitioner herein was never released on parole/furlough, till date.
Therefore, learned counsel appearing for the Petitioner submits
that, merely because the Petitioner was never released earlier is no
ground to reject his application for emergency (Covid-19) parole.
5. Learned APP appearing for Respondent-State submits
that the prayer of the petitioner to release him on emergency (Covid-
Bhagyawant Punde
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19) parole has rightly been turned down, relying upon the
notification dated 8th May 2020 issued by the Government of
Maharashtra, Home Department. It is submitted that the requisite
official capacity to accommodate the convicts in Nashik Central
Prison is 3178 inmates. By end of March 2021, there were 2364
convicts (68- women convicts and 2243 men convicts). It is
submitted that in the Nashik Central Prison 807 more convicts can
be accommodated. In order to prevent spread of Covid-19 virus,
inmates/convicts who have been recently lodged in the said prison
are kept in isolation in separate hall and after necessary health
checkup and tests, they are kept in the separate room in the prison.
There is thermal scanning and rapid antigen tests are conducted on
regular basis. In case, anybody is tested positive one separate
isolation room No. 8 is maintained for their stay and treatment.
6. We have given careful consideration to the submissions
of learned counsel appearing for the Petitioner and learned APP
appearing for the Respondent-State. With the able assistance of
learned counsel appearing for the Petitioner and learned APP, we
have perused the pleadings and grounds in the petition, annexures
thereto, impugned order/letter of understanding and also report
received from the Superintendent of Nashik Central Prison, Nashik.
Upon careful perusal of the said report received from the prison
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authority, it clearly appears on record that the proper care is being
taken of the convicts in the prison, so as to, avoid possibility of
contracting Covid-19 virus. However, in the impugned order/letter
of understanding a reason given is that, the Petitioner herein was
never released on furlough/parole, in past.
7. In our opinion, merely because the petitioner was not
released earlier cannot be a ground for rejecting the application of
the petitioner for emergency parole. This Court in Criminal Writ
Petition-ASDB-LD-VC No. 65 of 2020 (Milind Ashok Patil & Ors. Vs.
State of Maharashtra & Ors.) had occasion to consider similar issue
and a view is taken in the said case that merely because the
petitioner was not released twice in the past on parole/furlough
cannot be a ground for rejecting the application for emergency
parole.
8. In that view of the matter, the writ petition is partly
allowed. The impugned order dated 19.09.2020 passed by
Respondent No. 3, is quashed and set aside. The petitioner is
granted liberty to apply afresh for grant of emergency Covid-19
parole within one week from today. Upon filing such an application,
the respondent authority shall decide the same on its own merits,
as expeditiously as possible, however, within three weeks from the
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date of filing of the application in accordance with the Prisions
(Bombay Furlough and Parole) Rules, 1959, and keeping in view the
factors like the extent of spread of Covid-19 virus and conditions in
jail.
9. Rule is partly made absolute to above extent. The writ
petition stands disposed of accordingly.
( MANISH PITALE, J.) (S. S. SHINDE, J.)
Bhagyawant Punde
