Bombay High Court
Avinash Gunwant Dhoke (C-5278) vs The State Of Maharashtra And ... on 3 August, 2021
Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni
1 920-CR.WP-814-2021-J
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 814 OF 2021
Avinash S/o Gunwant Dhoke C-5278
Age : 40, Occ. Nil, R/o At present
Paithan open Prison Tq. Dist. Aurangabad ...Petitioner
Versus
1. The State of Maharashtra,
Through its Home Department,
Mantralaya, Mumbai 32.
2. The Superintendent of the
Open Prison at Paithan,
Dist. Aurangabad ...Respondents
Ms Sharda P. Chate, Advocate for Petitioner
Mr R.V. Dasalkar, A.P.P. for Respondents-State
- AND -
CRIMINAL WRIT PETITION NO. 813 OF 2021
Raju s/o Hiralal Mishra C-5340,
Age : 40, Occ. Nil, R/o At present
Paithan open Prison Tq. Dist. Aurangabad ...Petitioner
Versus
1. The State of Maharashtra,
Through its Home Department,
Mantralaya, Mumbai 32.
2. The Superintendent of the
Open Prison at Paithan,
Dist. Aurangabad ...Respondents
Ms Sharda P. Chate, Advocate for Petitioner
Mr R.V. Dasalkar, A.P.P. for Respondents-State
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2 920-CR.WP-814-2021-J
CORAM : V.K. JADHAV AND
SHRIKANT D. KULKARNI, JJ.
DATE : 03.08.2021
ORAL JUDGMENT : ( PER SHRIKANT D. KULKARNI, J. )
1. Rule. Rule made returnable forthwith. With the consent of the
learned counsel for both the sides, heard finally at admission stage.
2. The petitioners are convicts and undergoing sentence in open
Prison at Paithan. They have applied for emergency parole in view of the
notification dated 8th May, 2020 issued by the State Government, who are
eligible for furlough or parole leave subject to certain conditions. The jail
authority was pleased to reject the applications for emergency parole
moved by the petitioners on the ground that petitioners have not availed
benefit of furlough or parole leave even once and secondly, the capacity of
Open District Prison, Paithan is 500 inmates and only 77 inmates are now
lodged therein. Having regard to the less number of inmates in the open
prison, the jail authority feels that there is no need to release them on
emergency parole.
3. Feeling aggrieved by the impugned orders passed by the jail
authority dated 04.02.2021 and 21.6.2021, the petitioners have challenged
the said order by taking aid of Article 226 of the Constitution of India.
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3 920-CR.WP-814-2021-J
4. Heard Ms Sharda Chate, learned counsel for the petitioners and
learned A.P.P. Mr R.V. Dasalkar for the respondents.
5. Perused the copy of notification dated 08.05.2020 and the
orders dated 4.2.2021 and 21.6.2021 passed by the jail authority. We
have also perused the copy of order passed by the Division Bench of this
Court in Criminal Writ Petition No. 284/2021 with connected writ petitions
dated 9th March, 2021.
6. The State of Maharashtra has issued notification dated
08.05.2020 in the background of COVID-19 pandemic with a view to
release the prisoners on emergency parole looking to their safety.
7. The Division Bench of this Court in case of Kavita W/o of Dilip
Baviksar Vs. State of Maharashtra in writ petition No 571/2020 vide
judgment and order dated 30.06.2020 to which one of us (Shrikant D.
Kulkarni, J.) was a party has interpreted the conditions laid down in the
Government Notification dated 08.05.2020, issued by the State
Government and held that the said conditions are imposed in order to
ensure timely return of the prisoners after emergency parole period is
over. The para Nos. 4 and 5 read thus :
"4. In the notification dated 8th May 2020, the
State Government has given direction to the Jail
Authority to see that the prisoners, who are behind the
bars, are released on emergency parole in view of the
situation created by pandemic of COVID-19 virus. In the
said notification, there is condition that the prisoner, who
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is otherwise eligible to get furlough or prole leave, can
get the benefit of this notification, provided that in the
past he was released from jail on furlough or parole
leave on two occasions and on all the occasions, he had
surrendered in time.
5. Due to the aforesaid condition, peculiar and
strange circumstance is created as against prisoner, like
present petitioner, even if he has been actually behind
the bar for more than 11 years. The petitioner was
granted furlough leave only once and on that occasion
he turned up in time. He did not avail furlough leave on
other occasion cannot make him dis-entitled to claim the
benefit of the aforesaid notification. The purpose behind
putting such condition can be only to ensure that the
prisoner will surrender in time after expiry of emergency
parole period. There cannot be any other intention
behind such a condition."
8. The same view is taken by the Division Bench of this Court
consistently and even recently in Criminal Writ Petition No. 284 of 2021
with connected matters dated 9th March 2021 to which one of us ( V.K.
Jadhav, J ) was a party.
9. We agree with the view expressed earlier by the Division Bench
of this Court that said condition is imposed only with a view to ensure
timely return of the prisoner who is released on emergency parole leave
on account of COVID-19 Pandemic.
10. Learned A.P.P. Mr Dasalkar has placed on record the data
received from Open District Prison, Paithan and submits that the capacity
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5 920-CR.WP-814-2021-J
of the Open Prison is 500. As on 1.5.2020, the capacity was 475 prisoners.
as on 1.8.2021. Only 39 inmates are there in Open Prison at Paithan.
11. We are not impressed by the argument advanced by the
learned A.P.P.
12. It would not be proper to turn down the prayer for emergency
parole only because less number of inmates are in Open Prison at
Paithan. The reasons assigned by the jail authority for rejection of
emergency parole are not sound and do not stand on legal platform.
13. In view of the above, we are inclined to allow both Writ
Petitions.
ORDER
(I) Criminal Writ Petitions are hereby allowed.
(II) The impugned orders passed by the jail authority dated
4.2.2021 and 21.6.2021 rejecting emergency parole to the petitioners are
hereby quashed and set aside.
(III) Applications filed by the petitioners for emergency parole under
Government Notification 8.5.2020 are hereby allowed.
(IV) The petitioners be released on emergency parole on usual
terms and conditions within seven days from today.
(V) Rule made absolute in above terms.
[ SHRIKANT D. KULKARNI, J. ] [ V. K. JADHAV, J. ]
mta
