Jamaluddhin Nizamuddhin Khan vs State Of Maharashtra, Thr. ...
2021 Latest Caselaw 6738 Bom

                                               1                               31-wp-287-21.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

                  CRIMINAL WRIT PETITION NO. 287 OF 2021

  Jamaluddhin Nizamuddhin Khan,
  Convict No. C/10104,
  Aged 35 years, Occ. Nil,
  Confined at Central Prison, Nagpur.                                    . . . PETITIONER

                         ...V E R S U S..

  1. State of Maharashtra through
     Secretary, Home Department,
     Mantralaya, Mumbai.

  2. The Superintendent,
     Central Prison, Nagpur.                                         . . . RESPONDENTS

 ------------------------------------------------------------------------------------------------
 Ms. Shewta D. Wankhede, Advocate for petitioner.
 Shri T. A. Mirza, A.P. P. for respondents/State.
 -----------------------------------------------------------------------------------------------
                  CORAM :- Z. A. HAQ AND
                           AMIT B. BORKAR, JJ.

DATED :- 27.04.2021

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Heard.

2. Rule. Rule made returnable forthwith.

3. By this petition under Article 226 and 227 of the

Constitution of India, the petitioner sought directions against the

respondent no. 2 to release the petitioner on emergency parole for a

period of 45 days.

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4. The petitioner is a convict for offences under the Indian

Penal Code. The petitioner is undergoing sentence of rigorous

imprisonment for life. The petitioner has completed more than 6 years

of imprisonment at the time of filing this petition. It is alleged in the

petition that the application of the petitioner has been rejected by the

respondent no. 2 on ground that the petitioner has not been released

on furlough on two occasions. It is stated by the petitioner that copy

of order of rejection has not given to the petitioner. It is also stated

that the petitioner had surrendered himself in time when the petitioner

was released on last occasion.

5. Learned Advocate for the petitioner submitted that the

issue involved in this petition is no more res-integra and has been

answered by the Division Bench judgment of this Court in Criminal

Writ Petition-ASDB-LD-VC No. 65/2020 (Milind Ashok Patil Vs. State

of Maharashtra decided on 16.07.2020).

6. Learned A.P.P. submitted that as per Rule 19(1)(C) of the

Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959

requires that a convict, who has applied for emergency parole ought to

have earlier released on furlough twice and had reported back in time.

7. We have carefully considered the submission on behalf of

both the parties. We have also considered the judgment of this Court

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in case of Milind Ashok Patil (supra). This Court in paragraph nos. 13

and 15 of the said judgment has observed thus :-

"13. Thus, it is clear that the said amended provision is made for short period and is brought into existence for main object of reducing the overcrowding in the jail. However, while releasing the convicts on emergency parole in view of the declaration of epidemic under the Epidemic Diseases Act, 1897, it is also required to ensure that the said benefit cannot be extended to the prisoners likely to commit offence in case of temporary release i.e. habitual offenders or likelihood of absconding of such accused and in such case the emergency parole can be rejected. For ensuring this, it is provided that the convicts whose maximum sentence is above 7 years shall on their application be appropriately considered for release on emergency parole by the Superintendent of Prison, if the convict has returned to prison on time on last 2 releases (whether on parole or furlough). Therefore, the object while granting the emergency parole is to see that overcrowding in prison is reduced. However, at the same time, it is to ensure that the habitual offender or prisoners who are likely to abscond are deprived of emergency parole and therefore, the aforesaid amended rule was brought into effect. However, if such convicts are never released either on furlough or parole previously or not released on 2 occasions either on furlough or parole and therefore, there was no occasion for them to return back within time on 2 occasions and therefore, not entitled for said benefit of emergency parole, such literal interpretation may lead to absurdity and in that event, there is no occasion to invoke condition imposed under the said amended Parole Rule.

14. *****

15. Thus, it is clear that the condition mentioned in the amended clause (C)(ii) of convict returning back on time on last 2 releases will be applicable only if the convict is released on 2 occasions either on furlough leave or parole leave or their

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applications are rejected on the ground that they are habitual offenders or likely to abscond. In this behalf, it is significant to note that the difference between Clause (C)(i) and (ii). The clause (c)(i) of the amendment which is applicable to convicted prisoners whose maximum punishment is 7 years or less provides that "application shall be favourably considered"; whereas clause (C) (ii) which is applicable to the prisoners whose maximum sentence is above 7 years provides that "application shall be appropriately considered". To ensure that such convicts should not abscond, the said amended provision stipulates that once in every 30 days, the convicted prisoners shall report to the concerned police station within whose jurisdiction they are residing. If the convicts are not released on 2 occasions either on furlough or parole and/or their previous applications are not rejected either on the ground that they are habitual offenders or likely to abscond then the Authorities can still consider their applications for release on emergency parole. However, we make it clear that if the convicts are released on 2 occasions or on 1 occasion, either on parole or furlough previously and they are late in surrendering then they are not entitled for the benefit of the emergency parole. It is further clarified that the Authorities can impose suitable stringent conditions on the convicts who were never released on parole or furlough or released on 1 occasion and returned back within time, if they are otherwise entitled for the benefit of emergency parole."

8. The issue involved in the present petition is similar to the

issue, which was decided by this Court in the case of Milind Ashok

Patil (supra). We are therefore of the opinion that the application of

the petitioner for release on emergency parole could not have been

rejected on the ground that the petitioner was not released twice

earlier.

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9. We, therefore, pass the following order:-

The respondent no. 2 is directed to release the petitioner

on emergency parole till the declaration of epidemic under the

Epidemic Diseases Act, 1897 is in force, on such terms and conditions

as the respondent no. 2 deems fit and proper.

Rule is made absolute in the above terms.

                               JUDGE                                   JUDGE




RR Jaiswal