Aamir Gous Pathan vs The State Of Maharashtra And Anr
2021 Latest Caselaw 10501 Bom

                                                           -1-                        WP--1892-2021-J.doc



                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION
                                             WRIT PETITION NO. 1892 OF 2021

                      Aamir Gous Pathan,                         ]
                      Convict No.C/7135, Aged - 31 years,        ]
                      Occ. Nil, Confned at Kolhapur              ]
                      Central Prison, Kalmba.                    ]    ...Petitioner
                                  vs.
                      1. State of Maharashtra,                    ]
                      Through Deputy Inspector General of         ]
                      Prison, Kolhapur.                           ]
                                                                  ]
                      2. The Superintendent,                      ]
                      Central Prison, Kalamba.                    ]   ...Respondents

                                                   ***
                      Ms.Shweta D.Wankhede for petitioner.
                      Mr.J.P. Yagnik, APP for the State.
                                                       ***
                                             CORAM : S.S. SHINDE &
                                                         N.J. JAMADAR, JJ.
                                       Reserved for Judgment on : 4th August 2021.
                                       Judgment Pronounced on : 6th August 2021.

                      JUDGMENT (PER N.J. JAMADAR, J.) :

1. Rule. Rule made returnable forthwith and, with the consent

of the learned counsels for the parties, heard fnally.

2. The petitioner-convict has invoked writ jurisdiction of this

court seeking a direction to the Superintendent, Central Prison,

Digitally signed by Kalamba-respondent No.2 to condone the delay in surrendering to SHRADDHA SHRADDHA KAMLESH KAMLESH TALEKAR TALEKAR Date:

2021.08.06 prison and not to hold the overstay against the petitioner in the 14:41:25 +0530

matter of grant of parole.

                      Shraddha Talekar, PS                                                          1/6
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3. The petition arises in the backdrop of the following facts :

(a) The petitioner was released on

furlough on 27th January 2021. He was ordered

to return to prison on 26th February 2021.

(b) On 25th February 2021, the petitioner

had the RTPCR test. He was found Covid

positive and advised home rest and isolation for

17 days. Post isolation and quarantine period,

the petitioner got himself tested again on 19 th

March 2021. RTPCR test of the petitioner again

turned out positive. Eventually, after the test

dated 3rd April 2021, declared the petitioner

Covid negative, he surrendered on 5th April

2021.

(c) As the petitioner apprehended that

the said delayed reporting by 38 days, on

account of such emergent situation, would be

arrayed against him in the matter of

consideration of parole/furlough in future, the

petitioner fled an application to condone the

delay. As the said prayer was not considered

Shraddha Talekar, PS 2/6

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favourably, the petitioner preferred this petition.

4. Having regard to the nature of the grievance, on 17 th July

2021, this court passed the following order :

"3. In the light of submissions made across bar, we grant liberty to the petitioner to fle fresh application for Covid-19 emergency parole and in case such application is fled by the petitioner, we direct the 2nd respondent to decide the same as expeditiously as possible, however, within 10 days from fling the application and keeping in view the fact that the petitioner was earlier released on Covid-19 emergency parole and he could not surrender within time, since he had tested positive.

4. Such decision so taken by the Respondent No. 2 should be communicated to Mr. Yagnik, the learned APP appearing for Respondent-State and to the Petitioner. List on 4th August, 2021."

5. In pursuance of the aforesaid directions, the respondent

No.2 passed an order on 3 rd August 2021 and rejected the request

of the petitioner to release him on emergency Covid-19 parole on

the ground that the petitioner had overstayed for 38 days, when

he was released on furlough, and the said conduct gave rise to

apprehension that the petitioner may jump parole.

6. In the light of the aforesaid development, the petitioner has

renewed the prayer in the instant petition. We have heard Ms.

Wankhede, the learned counsel for the petitioner and Mr. Yagnik,

the learned APP for the State.

Shraddha Talekar, PS                                                                       3/6
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7. Ms. Wankhede would urge that the respondent No.2 had not

properly appreciated the emergent circumstances which prevented

the petitioner from reporting to prison on the scheduled date, i.e.,

26th February 2021, though the petitioner was willing and

desirous to report on time. Ms. Wankhede took us through the

RTPCR reports and medical certifcate of the petitioner to bolster

up the submission that the petitioner was prevented from

surrendering to prison on 26 th February 2021 by unavoidable

circumstances. To hold the said period of overstay against the

petitioner is simply unreasonable, urged Ms. Wankhede.

8. In opposition to this, Mr.Yagnik, the learned APP submitted

that the non-reporting to prison for initial 17 days, after the

petitioner was found Covid positive on 25 th February 2021, may be

legitimately condoned. However, there is no justifcation for

overstay beyond the said period of 17 days. In the circumstances,

the respondent No.2 was justifed in holding the said period of

overstay against the petitioner.

9. Indisputably, the petitioner had tested Covid positive on 25 th

February 2021. The medical certifcate issued by Government

Medical College and Hospital, Miraj, records that the petitioner

was advised home rest for 17 days. It is imperative to note that the

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sample of the petitioner was again collected on 17 th March 2021

and still the petitioner was found Covid positive on 19 th March

2021. It further appears that on 20th March 2021, the petitioner

addressed a communication to the respondent No.2 pointing out

the fact that, as of 19th March 2021, he was found Covid positive,

with a request not to take any adverse action.

10. In our view, the aforesaid factors could not have been lost

sight of. A Covid negative report would have been insisted upon by

the authorities before the petitioner was readmitted in prison. The

endeavour of the petitioner to test himself for virus was bonafde.

In the face of the material on record, we fnd that the reason

assigned by the petitioner for not reporting to prison on the

scheduled date and till the time he surrendered is genuine and

supported by the documents of unimpeachable character. The

action on the part of respondent No.2 in discarding the said

reason is unreasonable and arbitrary.

11. There is another factor which bears upon the controversy.

The petitioner was released on furlough in the year 2019 and did

report to prison on time. Moreover, the petitioner reported to

prison without loss of time after he was found Covid negative. This

conduct of the petitioner has not been properly taken into

Shraddha Talekar, PS 5/6

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account. In the circumstances of the case, in our view, there was

no justifable material to draw an inference that the petitioner may

jump parole and thereby reject the application by invoking Rule

4(20) of the Prisons (Bombay Furlough and Parole) Rules, 1959.

12. For the foregoing reasons, we are inclined to allow the

petition and direct the respondent No.2-The Superintendent,

Central Prison, Kalamba to consider the prayer of the petitioner

for release on emergency Covid-19 Parole afresh. However, the

aforesaid factor of overstay of 38 days shall not be taken into

account as a ground to reject the prayer for release on parole

either under Rule 4(20) or Rule 19(1)(c)(ii) of Prisons (Bombay

Furlough and Parole) Rules, 1959.

13. We further direct that the overstay for 38 days shall not be

considered as a ground for rejection of the prayer of the petitioner

for furlough and/or parole in future.

Rule made absolute in the aforesaid terms.

    (N. J. JAMADAR, J.)                        (S. S. SHINDE, J.)




Shraddha Talekar, PS                                                      6/6