Mohsin S/O Javed Khan vs The State Of Maharashtra And Ors
2021 Latest Caselaw 6743 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL WRIT PETITION NO. 1716 OF 2021

Mohsin S/o Javed Khan
Age- 23 years, Occ- Prisoner,
Convict No. C-11841
At Present lodged in
Central Prison, Nashik Road, Nashik,
R/o. House No. 1308, behind
Trimbak Police Chowki, Juna Nashik,
Tq. & Dist. Nashik.                                     ...PETITIONER

         Versus

1]       The State of Maharashtra
         Through its Principal Secretary,
         Home Department,
         Mantralaya, Mumbai-32.

2]       The Divisional Commissioner
         Nashik Division, Nashik,
         Office at Commissioner office,
         Nashik Road, Nashik.

3]       The Deputy Inspector General
         of Police (Prison), Central division,
         Central Prison, Harsul,
         Aurangabad.

4]   The Superintendent of Prison
     Central Prison, Nashik Road,
     Nashik.                              ...RESPONDENTS
                                ...
Mr. M.M. Chaudhari for Petitioner.
Mr. Deepak Thakre, PP a/w. Mr. J.P. Yagnik, APP for State.
                                ...

                                        CORAM : S. S. SHINDE &
                                                MANISH PITALE, JJ.

RESERVED ON : 22nd APRIL, 2021.

PRONOUNCED ON: 27th APRIL, 2021.

Bhagyawant Punde





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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:

B) To quash and set-aside the impugn communication/letter of understanding dated.19/09/2020 issued by the Respondent No. 4 thereby refusing the petitioner on emergency parole leave.

3. The Petitioner herein (Convict No. C-11841), 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 Mumbai.

4. Learned counsel appearing for the Petitioner submits

that the petitioner has undergone more than 4 years 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

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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-

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 2436

convicts (72- women convicts and 2364 men convicts). It is

submitted that in the Nashik Central Prison 682 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

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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

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

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Respondent No. 4, 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

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