Shaikh Yusuf Shaikh Abbas vs The State Of Maharashtra
2021 Latest Caselaw 6840 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL WRIT PETITION NO.1133 OF 2021

Shaikh Yusuf Shaikh Abbas                            : Petitioner.
      Versus
The State of Maharashtra                             : Respondent.

Mr. Sambhaji Kharatmol, appointed advocate for the Petitioner (Absent) Mr. Deepak Thakre, PP a/w Dr. F R Shaikh, APP for the Respondent/State.

                                CORAM :    S. S. SHINDE,
                                           MANISH PITALE, JJ
                                DATE   :   29th APRIL 2021
P.C.

1             The Petitioner has filed this Petition for grant of emergency Covid-

19 parole.      The Petitioner (Convict No.C/9732) has been convicted by the

Additional Sessions Judge, Aurangabad in Sessions Case No.205/2007 for the

offence punishable under Section 302 and sentenced to suffer imprisonment

for life and to pay fine of Rs.5000/- in default sentence to suffer imprisonment

for 3 months. The Petitioner has undergone sentence of 10 years 11 months

14 days.

2 The application of the Petitioner for grant of emergency Covid-19

parole has been rejected by the Respondent- Authority vide order dated

28/09/2020 on the ground that the Petitioner was never released on

parole/furlough till date, and in view of the Government Notification dated

08/05/2020 the Petitioner was not entitled to be released on emergency

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parole.

3 When the matter is called out through video conferencing the

advocate appointed to represent the Petitioner in this Petition is not present.

4 Learned PP 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 8 th 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.

5 We have given careful consideration to the submissions of the

learned APP appearing for the Respondent - State. With the able assistance of

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the learned APP appearing for the State, we have perused the pleadings and

grounds in the petition, annexures thereto, impugned order / letter of

understanding and also the report received from the Superintendent of Nashik

Road Central Prison, Nashik.

6 Upon a careful perusal of the said report received from the prison

authority, it appears that proper care is being taken of the convicts in the

prison so as to avoid possibility of contracting Covid-19 virus. In the said

report, it is stated that the Petitioner was never released on furlough/parole till

date. The Superintendent, Nashik Road Central Prison, Nashik, has expressed

an apprehension that in case the petitioner is released on parole, he may

abscond and may not come back to the jail. The ground for rejection of the

application Petitioner that the Petitioner was never released on furlough/parole

till date and the Petitioner having not fulfilled the condition of two releases on

furlough and parole for making him eligible to avail the benefit of Notification

dated 08.05.2020 for emergency Covid-19 parole finds place in the said report.

7 As stated herein above, the application made by the Petitioner was

rejected only on the ground that the Petitioner was never released on furlough

or parole till date, and therefore he does not fulfill the condition of last two

released and surrendering on time in terms of Government Notification dated

08/05/2020.

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8             The Government Notification dated 08.05.2020 which forms the

basis of rejection of the Petitioner's application reads thus :-

"2(c)(ii) For convicted prisoners whose maximum sentence is above 7 years shall on their application be appropriately considered for release on emergency parole by Superintendent of Prison, if the convict has returned to prison on time on last 2 releases (whether on parole or furlough) for the period of 45 days or till such time that the State Government withdraws the Notification issued under the Epidemics Diseases Act, 1897, whichever is earlier. The initial period of 45 days shall stand extended periodically in blocks of 30 days each, till such time that the said Notification is in force (in the event the said Notification is not issued within the first 45 days). The convicted prisoners shall report to the concerned police station within whose jurisdiction they are residing, once in ever 30 days."

9 The issue as to whether the convict, whose maximum sentence is

above 7 years imprisonment, is entitled for the emergency parole irrespective

of whether he was released only once on parole in past, has been considered

by the Division Bench at Aurangabad of this Court in the unreported judgment

dated 30/06/2020 in Criminal Writ Petition No.571 of 2020 in the case of

Kavita w/o Dilip Baviskar v/s The State of Maharashtra (Coram : T V

Nalawade & Shrikant D Kulkarni,JJ). In the said case this Court has held that

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the said condition i.e. whether the convict was released on one occasion or

twice on parole in past and reported back in time, had been introduced with an

intention to see that the convict shall return to jail in case he is released on

emergency parole. It is further held in the said case that though the Petitioner

therein had released only once on parole in the past, he was entitled to be

released on emergency parole.

10 In our opinion, merely because the petitioner was never released

on furlough/parole till date 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.

11 In our opinion the impugned order is unsustainable, in view of the

decision rendered by this Court in Kavita Baviskar's case (supra) and Milind

Ashok Patil's case (supra). Since the Petitioner was never released on furlough/

parole till date, his application for emergency parole has been rejected. There

is no other reason stated in the impugned order for rejecting the prayer of the

Petitioner to release him on emergency parole. The application for emergency

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parole made by the Petitioner could not have been rejected by the Respondent

Authority on the ground mentioned in the impugned order. Hence we pass the

following order :-

:ORDER:

1] The Writ Petition is allowed. The impugned order dated

28/09/2020 passed by the Respondent-Authority is quashed and set aside.

2] The Petitioner is entitled to be released on emergency Covid-19

parole in terms of the Notification dated 08.05.2020 subject to the Respondent

-Authority imposing such conditions which would ensure that the Petitioner

will surrender in time upon expiry of the emergency parole period.

3] The Respondent-Authority is directed to release the Petitioner

subject to fulfilling the conditions enumerated in the relevant Rules/Procedure

as expeditiously as possible, however, within a period of three weeks from

today.

4] Needless to mention that the Petitioner shall not misuse the liberty

of his release on emergency Covid-19 parole and strictly abide by the terms

and conditions imposed by the Respondent-Authority.

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5]           With the aforesaid directions, the Petition is disposed of.



[MANISH PITALE, J]                                         [S. S. SHINDE , J]




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