Bombay High Court
[email protected] Baburao Nagorao ... vs The State Of Maharashtra And ... on 20 August, 2021
Bench: V.K. Jadhav, S. G. Dige
crwp746.21.odt
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 746 OF 2021
Madhav s/o Haribhau Munjal (C-8460)
Age 48 years, Occ. Nil,
R/o. At present Harsul Prison,
Tq. and District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through its Home Department
Mantralaya, Mumbai
2. The Superintendent of the
Central prison, Harsul
District Aurangabad ...Respondents
.....
Mrs. Sharda P. Chate, advocate for the petitioner
Mr. S. J. Salgare, A.P.P. for respondents
.....
AND
CRIMINAL WRIT PETITION NO. 779 OF 2021
Gangadhar @ Baburao s/o Nagorao
Ambhore (C-8704)
Age 48 years, Occ. Nil,
R/o. At present Harsul Prison,
Tq. and District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through its Home Department
Mantralaya, Mumbai
2. The Superintendent of the
Central prison, Harsul
District Aurangabad ...Respondents
.....
Mrs. Sharda P. Chate, advocate for the petitioner
Mr. M. M. Nerlikar, A.P.P. for respondents
.....
::: Uploaded on - 30/08/2021 ::: Downloaded on - 08/10/2021 09:52:03 :::
crwp746.21.odt
-2-
AND
CRIMINAL WRIT PETITION NO. 647 OF 2021
Nazira Anwarkhan Pathan (C-8010),
Age major, Occ. Nil,
R/o. At present confined in Aurangabad
open prison, Aurangabad
Tq. and District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through under Secretary
Home Department
Mantralaya, Mumbai
2. The Superintendent ,
Central Prison, Harsul
District Aurangabad ...Respondents
.....
Mrs. M. V. Narwade, advocate for the petitioner
Mr. S. J. Salgare, A.P.P. for respondents
.....
AND
CRIMINAL WRIT PETITION NO. 679 OF 2021
Arjun Kacharu Unavane (C-5117),
Age 40 years, Occ. Convict,
R/o. At present confined in open prison
Paithan, Tq. Paithan,
District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through Superintendent
Open Jail, Paithan,
District Aurangabad
2. D.I.G. Prisons,
Aurangabad . ..Respondents
.....
Mr. Rupesh Jaiswal, advocate for the petitioner
Mr. A. S. Shinde, A.P.P. for respondents
.....
::: Uploaded on - 30/08/2021 ::: Downloaded on - 08/10/2021 09:52:03 :::
crwp746.21.odt
-3-
AND
CRIMINAL WRIT PETITION NO. 709 OF 2021
Irun Ilichand Chavan (C-80),
Age major, Occ. Nil,
R/o. At present confined in Aurangabad
open prison, Aurangabad
Tq. and District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through under Secretary
Home Department
Mantralaya, Mumbai
2. The Superintendent of the
Aurangabad open Prison,
District Aurangabad ...Respondents
.....
Mrs. M. V. Narwade, advocate for the petitioner
Mr. A.S. Shinde, A.P.P. for respondents
.....
AND
CRIMINAL WRIT PETITION NO. 747 OF 2021
Bhimrao s/o Shankar Kamble (C-4928)
Age major, Occ. Nil,
R/o. At present Harsul Prison,
Tq. and District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through its Home Department
Mantralaya, Mumbai
2. The Superintendent of the
Open prison, Aurangabad
District Aurangabad ...Respondents
.....
Mrs. Sharda P. Chate, advocate for the petitioner
Mr. M. M. Nerlikar, A.P.P. for respondents
.....
::: Uploaded on - 30/08/2021 ::: Downloaded on - 08/10/2021 09:52:03 :::
crwp746.21.odt
-4-
AND
CRIMINAL WRIT PETITION NO. 748 OF 2021
Raosaheb Narayan Shelke (C-8446)
Age 50 years, Occ. Nil,
R/o. At present Harsul Prison,
Tq. and District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through its Home Department
Mantralaya, Mumbai
2. The Superintendent of the
Central prison, Harsul
District Aurangabad ...Respondents
.....
Mrs. Sharda P. Chate, advocate for the petitioner
Mr. A.S. Shinde, A.P.P. for respondents
.....
AND
CRIMINAL WRIT PETITION NO. 718 OF 2021
Deepak s/o Dattatraya Jawale (C-8153),
Age major, occ. Convict
R/o. At present confined in Harsul
Central Jail, Aurangabad
District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through Secretary, Home Department
Mantralaya, Mumbai - 32.
2. Superintendent,
Central Jail Harsul, Aurangabad
District Aurangabad ..Respondents
.....
Mr. Rupesh Jaiswal, advocate for the petitioner
Mr. M. M. Nerlikar, A.P.P. for respondents
.....
::: Uploaded on - 30/08/2021 ::: Downloaded on - 08/10/2021 09:52:03 :::
crwp746.21.odt
-5-
AND
CRIMINAL WRIT PETITION NO. 719 OF 2021
Abhay s/o Bhaskar Pore (C-8154),
Age major, Occ. Convict
R/o. At present confined in Harsul
Central Jail, Aurangabad
District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through Secretary, Home Department
Mantralaya, Mumbai - 32.
2. Superintendent,
Central Jail Harsul, Aurangabad
District Aurangabad ..Respondents
.....
Mr. Rupesh Jaiswal, advocate for the petitioner
Mr. A.S. Shinde, A.P.P. for respondents
.....
AND
CRIMINAL WRIT PETITION NO. 711 OF 2021
Machindra s/o Gulab Gaikwad (C-8358),
Age major, Occ. Convict
R/o. At present confined in Harsul
Central Jail, Aurangabad
District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through Secretary, Home Department
Mantralaya, Mumbai - 32.
2. Superintendent,
Central Jail Harsul, Aurangabad
District Aurangabad ..Respondents
.....
Mr. Rupesh Jaiswal, advocate for the petitioner
Mr. M.M. Nerlikar, A.P.P. for respondents
.....
::: Uploaded on - 30/08/2021 ::: Downloaded on - 08/10/2021 09:52:03 :::
crwp746.21.odt
-6-
AND
CRIMINAL WRIT PETITION NO. 713 OF 2021
Vishnu s/o Haridas Dake (C-8875),
Age major, Occ. Convict
R/o. At present confined in Harsul
Central Jail, Aurangabad
District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through Secretary, Home Department
Mantralaya, Mumbai - 32.
2. Superintendent,
Central Jail Harsul, Aurangabad
District Aurangabad ..Respondents
.....
Mr. Rupesh Jaiswal, advocate for the petitioner
Mr. A.S. Shinde, A.P.P. for respondents
.....
AND
CRIMINAL WRIT PETITION NO. 717 OF 2021
Sunil s/o Ramesh Jadhav (C-8274),
Age major, Occ. Convict
R/o. At present confined in Harsul
Central Jail, Aurangabad
District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through Secretary, Home Department
Mantralaya, Mumbai - 32.
2. Superintendent,
Central Jail Harsul, Aurangabad
District Aurangabad ..Respondents
.....
Mr. Rupesh Jaiswal, advocate for the petitioner
Mr. S. J. Salgare, A.P.P. for respondents
.....
::: Uploaded on - 30/08/2021 ::: Downloaded on - 08/10/2021 09:52:03 :::
crwp746.21.odt
-7-
AND
CRIMINAL WRIT PETITION NO. 720 OF 2021
Dadasaheb s/o Bhausaheb Janrao (C-8874),
Age major, Occ. Convict
R/o. At present confined in Harsul
Central Jail, Aurangabad
District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through Secretary, Home Department
Mantralaya, Mumbai - 32.
2. Superintendent,
Central Jail Harsul, Aurangabad
District Aurangabad ..Respondents
.....
Mr. Rupesh Jaiswal, advocate for the petitioner
Mr. S.J. Salgare, A.P.P. for respondents
.....
AND
CRIMINAL WRIT PETITION NO. 722 OF 2021
Pavan s/o Pramod Kulkarni (C-9176),
Age major, Occ. Convict
R/o. At present confined in Harsul
Central Jail, Aurangabad
District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through Secretary, Home Department
Mantralaya, Mumbai - 32.
2. Superintendent,
Central Jail Harsul, Aurangabad
District Aurangabad ..Respondents
.....
Mr. Rupesh Jaiswal, advocate for the petitioner
Mr. S.J. Salgare, A.P.P. for respondents
.....
::: Uploaded on - 30/08/2021 ::: Downloaded on - 08/10/2021 09:52:03 :::
crwp746.21.odt
-8-
AND
CRIMINAL WRIT PETITION NO. 723 OF 2021
Ramdas s/o Gyandev Reddy (C-8789),
Age 45 years, Occ. Convict
R/o. At present confined in Harsul
Central Jail, Aurangabad
District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through Secretary, Home Department
Mantralaya, Mumbai - 32.
2. Superintendent,
Central Jail Harsul, Aurangabad
District Aurangabad ..Respondents
.....
Mr. Rupesh Jaiswal, advocate for the petitioner
Mr. M.M. Nerlikar, A.P.P. for respondents
.....
AND
CRIMINAL WRIT PETITION NO. 601 OF 2021
Archana w/o Laxman Mhaske (C-9365),
Age 27 years, Occ. Convict
R/o. At present confined in Harsul
Central Jail, Aurangabad
Permanent resident of
Aroti, Tq. Kalamnuri,
District Hingoli ...Petitioner
versus
The State of Maharashtra
Through Superintendent,
Central Jail, Aurangabad
District Aurangabad ..Respondent
.....
Mr. Rupesh Jaiswal, advocate for the petitioner
Mr. S.J. Salgare, A.P.P. for respondent
.....
::: Uploaded on - 30/08/2021 ::: Downloaded on - 08/10/2021 09:52:03 :::
crwp746.21.odt
-9-
CORAM : V. K. JADHAV AND
S. G. DIGE, JJ.
RESERVED ON : 14.07.2021
PRONOUNCED ON : 20.08.2021
O R D E R (PER V. K. JADHAV, J.) :-
1. By consent of the parties, heard finally at admission stage.
2. Since in all these criminal writ petitions common question of
law has been raised, it would be appropriate to decide these writ
petitions by this common order.
3. We have formed three categories of petitions as per the issues
raised therein. Category I is about late surrender by prisoner,
category II is about eligibility for parole in terms of provisions of Rule
4 of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules,
1959 ("said Rules", for short) and category III is about three years not
completed by prisoner for grant of parole. Details of the petitions as
per the above stated categories is as under:
CATEGORY NO. I
LATE SURRENDER
Sr.No. Cri. W.P. Name of Prisoner Conviction Actual Reason for
No. and convict No. under section imprisonment rejection of
and date of undergone emergency
conviction parole
1 746 of Madhav 302 of I.P.C. 9 years, 2 2 days late
2021 Haribhau Munjal 31.7.2013 months 22
(C-8460) days
crwp746.21.odt
2 779 of Gangadhar @ 302, 498 of 7 years 2 days late
2021 Baburao I.P.C.
Nagorao 4.1.2014
Ambhore
(C-8704)
3 647 of Nazira 302 of I.P.C. 6 years, 9 1 day late
2021 Anwarkhan 8.8.2014 months 11
Pathan (9.1.2001) days
(C-8010)
4 679 of Arjun Kacharu 302 of I.P.C. 12 years, 2 61 days late
2021 Unavane 25.08.2010 months
(C-5117)
5 709 of Irun Ilichand 302 of I.P.C. 13 years, 4 96 days late
2021 Chavan (C-80) 21.11.2008 months and
10 days
6 747 of Bhimrao Shankar 302 of I.P.C. 14 years, 1 4 days late
2021 Kamble 30.7.2007 month, 13
(C-4928) days
7 748 of Raosaheb 302 of I.P.C. 8 years, 5 1512 days, 4
2021 Narayan Shelke 24.10.1997 months, 4 days, 656
(C-8446) (29.1.2007) days days.
CATEGORY NO. II
ELIGIBILITY FOR PAROLE IN TERMS OF PROVISIONS OF RULE 4 OF THE
RULES
Sr.No. Cri. W.P. Name of Conviction Actual Reason for
No. Prisoner and under section imprisonment rejection of
convict No. and date of undergone emergency
conviction parole
1 718 of Deepak 376 (2) (g) of 11 years, 1 Bar of Rule
2021 Dattatraya I.P.C. and month 20 4(12) of the
Jawale 3(2) of days Rules
(C-8153) M.C.O.C. Act
22.08.2016
2 719 of Abhay Bhaskar 376 (2) (g) of 11 years, 1 Bar of Rule
2021 Pore I.P.C. and month 20 4(12) of the
(C-8154) 3(2) of days Rules
M.C.O.C. Act
22.08.2016
3 711 of Machindra Gulab 376 (d) of 5 years, 8 Bar of Rule
2021 Gaikwad I.P.C. months and 4(12) of the
(C-8358) 17.07.2018 9 days. Rules
crwp746.21.odt
4 713 of Vishnu Haridas 376(d) of 5 years, 7 Bar of Rule
2021 Dake I.P.C. months, 3 4(12) of the
(C-8875) 05.05.2018 days Rules
5 717 of Sunil Ramesh 376(2) (I) 5 years, 8 Bar of Rule
2021 Jadhav I.P.C. months and 4(12) of the
(C-8274) 08.11.2017 6 days Rules
6 720 of Dadasaheb 376(d) of 5 years, 7 Bar of Rule
2021 Bhausaheb I.P.C. months, 3 4(12) of the
Janrao (C-8874) 05.05.2018 days Rules
7 722 of Pavan Pramod 376 (2) (n) of 3 years, 9 Bar of Rule
2021 Kulkarni I.P.C. 7.2.2020 months, 13 4(12) of the
(C-9176) days Rules
8 723 of Ramdas 376 (2) (I) of 5 years, 11 Bar of Rule
2021 Gyandev Reddy I.P.C. 7.4.2017 months 4(12) of the
(C-8789) Rules
CATEGORY NO. III
THREE YEARS NOT COMPLETED FOR GRANT OF PAROLE
Sr.No. Cri. W.P. Name of Conviction Actual Reason for
No. Prisoner and under section imprisonment rejection of
convict No. and date of undergone emergency
conviction parole
1 601 of Archana Laxman 302 of I.P.C. 02 months Bar of Rule
2021 Mhaske 20.03.2021 3(C)(1) of
(C-9365) the Rules
4. Learned counsel for the petitioners in respective writ petitions
submit that the Government of Maharashtra in exercise of the powers
conferred by clauses (5) and (28) of Section 59 of the Prisons Act, in
its application to the State of Maharashtra, has made the
Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment)
Rules, 2020 to amend the said Rules of 1959. In terms of the said
amendment to sub rule (1) of Rule 19 of the said Rules, after clause
crwp746.21.odt
(B), clause (C) has been inserted. The said clause has been inserted
on declaration of epidemic under the Epidemic Diseases Act, 1897,
by the State Government and in terms of sub-clause (ii) of the added
clause (C), 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, on
certain conditions. In terms of proviso to sub-clause (ii) of clause (C),
the said directions shall not apply to convicted prisoner convicted for
serious economic offences or bank scams or offences under Special
Acts (other than IPC) like MCOC, PMLA, MPID, NDPS, UAPA etc.
which provides for additional restrictions on grant of bail in addition to
those under the Code of Criminal Procedure, 1973 and also
presently to foreign national and prisoners having their place of
residence out of the State of Maharashtra.
5. Learned counsel submits that so far as the petitions in
category II are concerned, except writ petition Nos. 718 of 2021 and
719 of 2021, the writ petitions Nos. 711, 713, 717, 720, 722 and 723
of 2021 in category No. II pertain to conviction and passing of
sentence for the offences punishable under Section 376(d) or
Section 376(2)(i) or Section 376 (2)(n) of I.P.C. However, their
applications for release on emergency parole came to be rejected by
considering the bar of Rule 4(12) of the said Rules.
crwp746.21.odt
6. Learned counsel appearing for the petitioners submit that so
far as the category I is concerned, it is about late return and their
applications seeking emergency parole came to be rejected mainly
on the ground of their late return to the prison on earlier release on
parole or furlough.
7. Learned counsel appearing for the petitioners submit that
clauses (A) and (B) of sub-rule (1) of Rule 19 of the said Rules,
prescribe the provision about Emergency parole whereas sub-rule (2)
of Rule 19 of the said Rules prescribes the provision about regular
parole. So far as regular parole is concerned, all the prisoners
eligible for furlough shall be eligible for regular parole for certain
reasons as detailed in sub-rule (2) of Rule 19 of the said Rules. It is
submitted that the eligibility criteria for regular parole is in terms of
the provisions of Rule 4 of the said Rules. Learned counsel for the
petitioners submit that so far as the provisions of emergency parole
are concerned, clauses (A) and (B) of sub-rule (1) of Rule 19 of the
said Rules prescribe that all convicted prisoners except foreigner and
death sentenced prisoners may be eligible for emergency parole for
45 days for the reasons as detailed in clauses (A) and (B). Learned
counsel submit that there is mark difference between the eligibility
criteria for the regular parole and the emergency parole. The
amendment to Rule 19, as referred above, is by way of insertion of
crwp746.21.odt
clause (C) to Rule 19 sub-rule (1) and as such, all convicted
prisoners are entitled to be released on parole except for the reasons
as stated in sub-clause (ii) of the added clause (C), so also its
proviso. Learned counsel for the petitioners submit that in the
proviso it is stated that the aforesaid directions shall not apply to
convicted prisoner convicted for serious economic offences or bank
scams or offences under Special Acts (other than IPC) like MCOC,
PMLA, MPID, NDPS, UAPA etc. However, that does not cover the
prisoners convicted for the offence under Section 376 of I.P.C.
simplicitor without any conviction under any Special Act. It is
submitted that, however, the Superintendent of District Prison has
rejected the applications seeking COVID-19 epidemic emergency
parole of the convicted persons as per sub-clause (ii) by referring the
provisions of Rule 4(12) of the said Rules, which is contrary to the
provisions of Rule 19 (1) (A) and (B) and the added clause (C) of the
said Rules.
8. Learned counsel for the petitioners submit that the Full Bench
of this Court at its Principal Seat, in Pintu s/o Uttam Sonale vs. The
State of Maharashtra [2021 ALL MR (Cri.) 822] has held that the
provisions of emergency parole as brought about by incorporation of sub-
rule (C) read with its proviso would cover the prisoners convicted
under the provisions of Protection of Children from Sexual Offences
crwp746.21.odt
Act, 2012. In the instant bunch of matters, as per category II, the
petitioners in writ petition Nos. 711, 713, 717, 720, 722 and 723 of
2021 are convicted for the offences punishable under Section 376 (d)
or Section 376(2) (i) or Section 376 (2) (n) of IPC simplicitor and not
alongwith any other offence under Special Act including the
Protection of Children from Sexual Offences Act, 2012.
9. Learned counsel for the petitioners submit that as per Rule 23A
of the Maharashtra Prisons (Remission System) Rules, 1962, for the
prisoner coming late from parole and furlough the proportion of
cutting in remission has been determined. If the prisoner surrenders
himself to the prison authorities on the next day after expiry of the
period of sanctioned parole, only strict warning is prescribed. For the
period of late surrender from 2 to 15 days up to 6 months or more,
the proportion of cut in remission is prescribed. So far as the period
of 6 months or more of late surrender, the prisoner remission shall be
cut permanently. Similar provisions are also there for the prisoners
coming late from furlough. Furthermore, as per Circular No.2015
Kaksha-9 (5) dated 8.7.2015 if the remission has been cut
permanently on account of late surrender, for a period of 6 months or
more, an entry be taken in the remission register considering further
good conduct in the jail. It is submitted that in view of the same, as
per category I, the applications of the prisoners should not have been
crwp746.21.odt
rejected for late surrender by two days, or maximum 96 days in one
case, which is less than the period of six months.
10. Mr. Rupesh Jaiswal, learned counsel for the petitioners placed
reliance on the judgment of the Supreme Court in the case of Asfaq
vs. The State of Rajasthan, reported in 2018 ALL SCR (Cri.) 227
wherein the Supreme court held that the theory of criminology
underlines 'reformation' as one of the main objectives which provides
justification for letting of the life convicts for short period on parole not
only to afford opportunities to such convicts to solve their personal
and family problems but also to maintain their links with the society.
The Hon'ble Supreme Court has observed that mere nature of
offence committed by the accused should not be a factor to deny
parole out-rightly. Learned counsel Mr. Jaiswal, in order to
substantiate his submissions placed reliance on the following cases:
i) Pintu s/o Uttam Sonale vs. The State of Maharashtra,
reported in 2021 ALL MR (Cri.) 822;
ii) Asfaq vs. State of Rajasthan and others, reported in 2018
ALL SCR (Cri.) 227;
iii) Order dated 28.8.2020 in criminal writ petition No.ASDB-LD-
VC 265 of 2020 (Kalyan s/o Bansidharrao Renge v. The
State of Maharashtra and Anr.) passed by the Division
Bench of this court at Principal Seat Bombay.
crwp746.21.odt
iv) Order dated 07.12.2020 in criminal writ petition (St.) No.
3080 of 2020 (Ravindrasing @ Munna s/o Dilipsing
Parihar v. The State of Maharashtra and Another) passed
by the Division Bench of this court at Principal Seat Bombay.
v) Order dated 07.12.2020 in criminal writ petition (St.) No.
3077 of 2020 (Mahesh Vasantrao Motaphale v. The State
of Maharashtra and Another) passed by the Division Bench
of this court at Principal Seat Bombay.
vi) Order dated 13.10.2020 in criminal writ petition No. 1135 of
2020 (Shubham s/o Devidas Gajbhare v. The State of
Maharashtra) passed by the Division Bench of this Court.
vii) Kantilal Nandlal Jaiswal vs. Divisional Commissioner,
Nagpur and Anr. reported in 2019 ALL MR (Cri.) 4003 (F.B.).
viii) Judgment dated 09.07.2021 in writ petition No. 2386 of 2021
(Futermal Kapoorji Borana v. The State of Maharashtra
and others) delivered by the Division Bench of this court at
Principal Seat Bombay.
ix) Judgment dated 17.12.2020 in writ petition (St.) No. 4216 of
2020 (Santosh Mahadev Shinde v. The State of
Maharashtra and others) delivered by the Division Bench of
this court at Principal Seat Bombay.
x) Maharashtra Public Service Commissioner vs.
Pankajkumar C. Dabhire and others, reported in 2019(3)
ALL MR 206;
xi) Raghunath Rai Bareja and Anr. vs. Punjab National Bank
crwp746.21.odt
and Ors. reported in 2007 ALL SCR 1641;
xii) Judgment dated 01.12.2020 in criminal writ petition (St.) No.
3210 of 2020 (Yakub s/o Hussain Panwale v. The State of
Maharashtra) delivered by the Division Bench of this court at
Principal Seat Bombay.
xiii) Judgment dated 17.12.2020 in criminal writ petition (St.) No.
3481 of 2020 (Ramesh s/o Poona Sapkale v. The State of
Maharashtra) delivered by the Division Bench of this court
at Principal Seat Bombay.
xiv) Order dated 28.07.2020 in criminal writ petition ASDB-LD-VC
No. 87 of 2020 (Sobha Sitaram Tayade v. State of
Maharashtra) passed by the Division Bench of this court at
Principal Seat Bombay.
xv) Santosh Sahebrao Nagargoje vs. The State of
Maharashtra and others, reported in 2020 ALL MR (Cri.)
3101.
xvi) Judgment dated 21.12.2020 in criminal writ petition (St.) No. 3178
of 2020 (Mahesh Lalchand Bohra v. The State of Maharashtra
and another) delivered by the Division Bench of this court at
Principal Seat Bombay.
xvii) Order dated 7.12.2020 in Criminal Application No. 2073 of
2020 (The State of Maharashtra vs. Guddu @ Kansha
Wahab Shaikh) passed by the Division Bench of this Court.
crwp746.21.odt
11. Learned counsel Ms. Sharda Chate, in order to substantiate
her submissions placed reliance on the following cases:
i) Judgment dated 3.5.2021 in Criminal Writ petition No. 513 of
2021 (Sherkhan Mirbas Khan Pathan vs. State of
Maharashtra) delivered by the Division Bench of this Court.
ii) Order dated 4.8.2020 in Criminal Writ petition No. 759 of 2020
(Aquino s/o Avith Martis vs. State of Maharashtra) passed
by the Division Bench of this Court.
iii) Order dated 7.8.2020 in Criminal Writ petition No. 791 of 2020
(Akbar s/o Sayed Shaikh vs. State of Maharashtra) passed
by the Division Bench of this Court.
12. Learned APP submits that the Supreme Court has taken
cognizance of the spread of the Novel Corona Virus (COVID-19) in
Suo Motu Writ Petition (Civil) No. 1 of 2020. By order dated
16.03.2020 in the said Suo Motu Writ Petition, the Supreme Court
has observed about the overcrowding in prisons making it difficult for
the prisoners to maintain social distancing. Thus, the Supreme Court
has felt that there is imminent need to take steps on an urgent basis
to prevent the contagion of Covid-19 virus in our prisons. Thus, the
Supreme Court has issued show-cause notices to all the
States/Union Territories as to why directions should not be issued for
crwp746.21.odt
dealing with the present health crisis arising out of Corona virus
(Covid-19) in the country and further to suggest measures which
should be adopted for the medical assistance to the prisoners in all
jails and the juveniles lodged in the Remand Homes.
13. Learned APP submits that on 23.03.2020, the Supreme Court
took up the said Suo Motu Writ Petition for further hearing and
looking into the possible threat of transmission and fatal
consequences of Covid-19 in our prisons, directed each State/Union
Territory to constitute a High Powered Committee (HPC) to determine
which class of prisoners can be released on parole or an interim bail
for such period as may be thought appropriate. The Supreme Court
has left it open for the HPC to determine the category of prisoners
who should be released as aforesaid, depending upon the nature of
offence, the number of years to which he or she has been sentenced
or the severity of the offence with which he/she is charged with and is
facing trial or any other relevant factor, which the Committee may
consider appropriate.
14. By order dated 07.04.2020, the Supreme Court in the said Suo
Motu Writ Petition has given certain directions to the Union of India to
ensure that all the prisoners having been released by the
States/Union Territories be provided transportation to reach their
crwp746.21.odt
homes or given the option to stay in temporary shelter homes for the
period of lockdown.
15. By order dated 13.04.2020 in the said Suo Motu Writ Petition,
the Supreme Court has made it clear that the purpose of earlier
orders directing the States/Union Territories to release the prisoners
from their respective prisons was to ensure the States/Union
Territories to assess the situation in their prisons determine the
category of prisoners to be released. The Supreme Court has also
given certain specific directions in this order.
16. Thereafter time to time, the Supreme Court by orders dated
13.05.2020, 06.07.2020 and 01.06.2021 gave certain directions.
17. Learned APP submits that meanwhile, in terms of the order
dated 23.03.2020 passed by the Supreme Court in Suo Motu Writ
Petition (Civil) No. 1 of 2020 as referred above, the HPC has been
constituted on 24.03.2020 in the State of Maharashtra. The HPC on
25.03.2020, 10.05.2020 and 11.05.2020 has given certain directions
for release of prisoners by considering nature of offence, severity of
offence, number of years to which the convict has been sentenced
and other relevant factors.
crwp746.21.odt
18. Learned APP submits that in the backdrop of all these orders
and the decisions taken by the HPC, the State of Maharashtra by
Notification dated 16.04.2018, amended the said Rules vide
Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment)
Rules, 2018. Further, by Notification dated 08.05.2020, The said
Rules came to be amended in its application to the State of
Maharashtra and Rule 19(1) (C) came to be inserted.
19. Learned APP submits that the Public Interest Litigation No. 44
of 2020 came to be filed by the National Alliance for People's
Movements seeking quashing of the decision of the HPC dated
25.03.2020 to the extent of Clauses (iii), (iv) and (vii) of paragraph 8,
decision/minutes of the HPC meeting dated 11.05.2020 excluding
certain categories of offences provided in paragraph 5(i) and 5(ii) for
the purpose of grant of interim bail and corrigendum dated
18.05.2020 of the minutes of meeting of the HPC dated 11.05.2020
to the extent of clarification that the class and/or category of cases
determined by the HPC for temporary release be not read as a
direction made by it for mandatory release of the prisoners falling in
that category or class and a further clarification that case of every
prisoner be considered on case to case basis for deciding the
temporary release of such prisoner. In the said PIL a further relief has
been sought seeking direction to the respondents to release the
crwp746.21.odt
prisoners convicted with life imprisonment without insisting that they
should have been released in the past at least twice, either on
furlough or parole. The Division Bench of this Court at its Principal
Seat, headed by the Hon'ble the Chief Justice (Coram : Dipankar
Datta, CJ. & Madhav J. Jamdar, J.) in para 39 of the Judgment has
observed that the HPC has balanced the rights of the prisoners to
maintain maximum possible distancing to contain the spread of
Covid-19 as well as the rights of the society. The Hon'ble the Chief
Justice, adding to the said judgment his own views, observed that
there is no reason to hold that the HPC acted in a manner warranting
interference. The Hon'ble the Chief Justice further held that the
recommendations made by the HPC are not arbitrary and do not
offend the equality clause in Article 14.
20. Learned APP submits that being aggrieved by the order
passed in PIL No. 44 of 2020, the petitioners therein approached to
the Supreme Court by filing Special Leave Petition (Cri) No. 4116 of
2020. By order dated 22.09.2020, the Supreme Court has dismissed
the SLP by granting liberty for raising grievance by an individual
undertrial/convicted prisoner only if such person has been
discriminated as against the prisoner in the same category for which
the benefit has been provided by the categorisation made by the
HPC.
crwp746.21.odt
21. Learned APP thus submits that in term of the amendment in its
application to the State of Maharashtra to Rule 4, considering the
amendment to Rule 19(1)(C) in its application to the State of
Maharashtra, the intention and purpose behind the said amendment
in terms of the directions given by the Supreme Court in Suo Motu
Writ Petition No. 1 of 2020 and the decisions taken by the HPC time
to time as referred above, the eligibility criteria as per the amendment
to Rule 4 in the year 2018 would also be equally applicable to the
added provision of clause (C) in its application to the State of
Maharashtra in sub-Rule 19(1).
22. Learned APP submits that in the case of Milind Ashok Patil &
Ors. v. State of Maharashtra & Ors. [Criminal Writ Petition No. 65 of
2020 decided by this Court (Coram : S. S. Shinde & Madhav J.
Jamdar, JJ.)], though the issue was different, by order dated
16.07.2020 this Court has considered the said amendment to clause
(C) of Rule 19(1) of the said Rules.
23. Learned APP has further placed his reliance on the following
cases to substantiate his contention:
i. Futermal Kapoorji Borana v. The State of
Maharashtra and Ors. [Criminal Writ Petition No. 444
of 2021 decided by this Court at its Principal Seat at
crwp746.21.odt
Bombay on 08.03.2021]
ii. Dilshad Hussain Siddiqui v. The State of
Maharashtra and Anr. [Criminal Writ Petition No. 231
of 2021 decided by this Court at its Principal Seat at
Bombay on 16.02.2021]
iii. Pintu s/o Uttam Sonale (C-10855) v. The State of
Maharashtra [Criminal Writ Petition (Stamp) No. 3206
of 2020 decided by the Full Bench of this Court at its
Principal Seat on 06.11.2020]
iv. Shubham s/o Devidas Gajbhare v. The State of
Maharashtra [Criminal Writ Petition No. 1135 of 2020
decided by this Court on 13.10.2020]
v. Vijay Vilasrao Sutare, C-8986 v. The State of
Maharashtra and Anr. [Criminal Writ Petition No. 972
of 2020 decided by this Court on 14.09.2020]
vi. Milind s/o Govind Pandit (C-8758) v. The State of
Maharashtra [Criminal Writ Petition No. 1244 of 2020
decided by this Court on 21.10.2020]
vii. Aziz Khan Mohd. Khan Pathan (C-7985) v. The
State of Maharashtra and Others [Criminal Writ
Petition No. 1439 of 2020 along with connected Writ
Petitions decided by this Court on 23.11.2020]
crwp746.21.odt
viii. The State of Maharashtra v. Anil s/o Maruti Jadhav
[Criminal Application No. 1577 of 2020 along with
connected Application decided by this Court on
05.11.2020]
24. We have heard learned counsel for the petitioners in
respective petitions and the learned APP for the respondent-State.
With their able assistance, we have perused the memo of petitions,
annexures thereto, various orders passed by the Hon'ble Supreme
Court as well as this Court, so also the minutes of meetings of HPC
and the decisions taken by it time to time.
25. In Suo Motu Writ Petition (Civil) No. 1 of 2020, by order dated
16.03.2020 the Supreme Court has taken a note of the
instructions/directions issued by the Government of India about
maintaining social distancing to prevent the spread of Covid-19 virus
and further observed that the prisons are overcrowded, making it
difficult for the prisoners to maintain social distancing. The Supreme
Court has also taken a note of the various studies on this point and
observed that the prison inmates are highly prone to contagious
viruses. The Supreme Court has opined that there is an imminent
need to take steps on an urgent basis to prevent the contagion of
Covid-19 virus in our prisons. For all these reasons, the Supreme
crwp746.21.odt
Court has issued show-cause notices to the Chief
Secretaries/Administrators, Home Secretaries, Directors General of
all the Prisons and Department of Social Welfare of all the States and
the Union Territories to show cause why directions should not be
issued for dealing with the present health crisis arising out of Corona
virus (Covid-19) in the country and further to suggest immediate
measures which should be adopted for the medical assistance to the
prisoners in all jails and the juveniles lodged in the Remand Homes
and for protection of their health and welfare.
26. In the said Suo Motu Writ Petition, by order dated 23.03.2020,
after considering the response by the various States to the said
show-cause notice, the Supreme Court has issued the following
directions :
"We direct that each State/Union Territory shall constitute
a High Powered Committee comprising of (i) Chairman of
the State Legal Services Committee, (ii) the Principal
Secretary (Home/Prison) by whatever designation is
known as, (ii) Director General of Prison(s), to determine
which class of prisoners can be released on parole or an
interim bail for such period as may be thought
appropriate. For instance, the State/Union Territory could
consider the release of prisoners who have been
convicted or are undertrial for offences for which
prescribed punishment is up to 7 years or less, with or
without fine and the prisoner has been convicted for a
crwp746.21.odt
lesser number of years than the maximum.
It is made clear that we leave it open for the High
Powered Committee to determine the category of
prisoners who should be released as aforesaid,
depending upon the nature of offence, the number of
years to which he or she has been sentenced or the
severity of the offence with which he/she is charged with
and is facing trial or any other relevant factor, which the
Committee may consider appropriate."
27. By order dated 13.04.2020, the Supreme Court in the said Suo
Motu Writ petition (Civil) No. 1 of 2020, in continuation to the
directions given in the order dated 23.03.2020, made the following
observations:
"We make it clear that we have not directed the
States/Union Territories to compulsorily release the
prisoners from their respective prisons. The purpose of
our aforesaid order was to ensure the States/Union
Territories to assess the situation in their prisons having
regard to the outbreak of the present pandemic in the
country and release certain prisoners and for that
purpose to determine the category of prisoners to be
released."
28. The HPC, Maharasthra, in its meeting dated 25.03.2020, in
determining "the class" or "the category" of the prisoners, considered
the factors (a) nature of offence, (b) severity of offence, (c) number
crwp746.21.odt
years to which the convict has been sentenced and (d) any other
relevant factor. The HPC has taken decision about the convicted
prisoners in sub-para (ii) and (iii) of para 8 of the minutes of meeting
dated 25.03.2020 which read as under :
"(ii) The convicted prisoners whose maximum punishment
is 7 years or less, shall, on their application be favourably
considered for release on emergency parole, for a period
of 45 days or till such time that the State Government
withdraws the Notification under The Epidemics 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 issued (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 every 30 days.
(iii) The convicted prisoners whose maximum sentence is
above 7 years shall on their application be appropriately
considered for release on emergency parole, if the convict
has returned to prison on time on last 2 releases (whether
on parole or furlough), for a period of 45 days or till such
time that the State Government withdraws the Notification
under The Epidemics 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 issued (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 every 30
days."
crwp746.21.odt
29. The HPC, as per the minutes of meeting dated 11.05.2020
pursuant to the report dated 10.05.2020, has taken the decision vide
para 5 as follows :
"5. The decision of this High Power Committee dated
25th March, 2020 shall now be applicable also to the
category of prisoners mentioned hereinbelow. We
accordingly issue the following directions:
(i) All undertrial prisoners booked/charged for such
offences for which maximum sentence is above 7 years
shall, be favourably considered for release on interim bail
(except those falling the enumerated below) on personal
bond of such amount as may be determined for a period
of 45 days or till such time as the State Government
withdraws the Notification under The Epidemics 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 issued (in
the event the said Notification is not issued within the first
45 days). The undertrial prisoners shall report to the
concerned police station, within whose jurisdiction they
are residing, every 30 days. The exception made shall
apply to the following category of offences :
(1) Indian Penal Code
a) IPC - Chapter VI-Offences against State - IPC
121 to 130
b) IPC - 303
c) IPC - 364(A), 366, 366(A), 366(B), 367 to 374
crwp746.21.odt
d) IPC - 376(a) to (e)
e) IPC - 396
f) IPC - 489(a) to (e)
g) Bank Frauds and Major Financial Scams
(2) SPECIAL ACTS
a) MOCO, TADA, POTA, UAPA, PMLA, Explosive
Substances Act, Anti Hijacking Act
b) NDPS (Other than personal consumption)
c) MPID
d) POCSO
e) Foreigners in Prison.
It is clarified that the rest of the clauses (iv) to (x) of
the decision dated 25th March, 2020 of this Committee
shall apply and shall form part of the present decision."
30. By Corrigendum dated 18.05.25020 to minutes of meeting of
HPC dated 11.05.2020, the HPC directed corrections and substituted
the category of cases falling under IPC so also Bank Frauds and
Major Financial Scams in relation to the exclusion of offences.
31. In the backdrop of all these orders passed by the Supreme
Court in Suo Motu Writ Petition (Civil) No. 1 of 2020 and the
decisions taken by the HPC time to time as reproduced hereinabove,
in sub-Rule (1) of Rule 19 of the said Rules, after clause (B), the
following Clause (C) has been added:
crwp746.21.odt
"(C) On declaration of epidemic under the Epidemic
Diseases Act, 1897, by State Government :
(i) For convicted Prisoners whose maximum
punishment is 7 years or less, on their application shall be
favorably considered for release on emergency parole by
the Superintendent of Prison for a 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 every 30 days.
(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 release (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
every 30 days:
crwp746.21.odt
Provided that the aforesaid directions shall not
apply to convicted prisoners convicted for serious
economic offences or bank scams or offences under
Special Acts (other than IPC) like MCOC, PMLA, MPID,
NDPS, UAPA etc. (which provide for additional restrictions
on grant of bail in addition to those under the Code of
Criminal Procedure, 1973 (2 of 1974) and also presently
to foreign nationals and prisoners having their place of
residence out of the State of Maharashtra."
32. In the case of Pintu s/o Uttam Sonale (supra) relied upon by
learned counsel for the petitioners so also the learned APP, the Full
Bench of this Court at its Principal Seat has considered the purpose
of incorporating Rule 19(1) sub-rule (C) and observed that it is
completely different from what is provided for in sub-rule (A) and sub-
rule (B). Sub-rule (C) is incorporated in view of the declaration of the
epidemic by the State Government under the Epidemic Diseases Act,
1897 and the purpose being to grant benefit of this rule to a limited
category of prisoners so as to avoid ill-effects of pandemic and
consequent health hazards. The Full Bench has also observed that
the amended rule in no manner takes away the discretion of the
authority effecting these provisions so as to confer any vested right in
the prisoners who stand convicted of serious offences. In para 21
and 22 of the judgment, the Full Bench has made observations to
that effect which are as follows:
crwp746.21.odt
" 21. We may also note that even in case of eligibility for
furlough as provided in Rule 4, the category of prisoners
in Rule 4(12) and (21) are held not eligible for furlough.
Rule 4(12) and 4(21) read as under:-
"4. (12) Prisoners who are considered
dangerous or have been involved in serious
prison violence like assault, outbreak, riot,
mutiny or escape, or who have been found to
be instigating the serious violation of prison
discipline, smuggling of narcotic and
psychotropic substances including convicted
under Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985), rape or
rape with murder, attempt to rape with murder
and foreigner prisoners (Prisoners may be
eligible for furlough after completion of
stipulated sentence in the respective section);
(21) Those involved in sexual offences against
minor and human trafficking"
22. We are not inclined to accept the contentions as urged
on behalf of the petitioner that merely because the
POCSO Act is not found in the special Acts as referred in
the proviso, the prisoners convicted under the POCSO Act
can avail benefit of emergency parole. The next
contention as urged on behalf of the petitioner is that the
notification itself is contrary to Rule 19. We are afraid that
this contention cannot be accepted. The purpose of
incorporating Rule 19(1) sub-rule (C) is completely
different from what is provided for in sub-rule (A) and sub-
rule (B), which is a special provision, incorporated in view
of the declaration of epidemic by the State Government
under the Epidemic Diseases Act,1897. The purpose
being to grant benefit of this rule to a limited category of
prisoners so as to avoid ill-effects of pandemic and
crwp746.21.odt
consequent health hazards, however, with clear exception
that sub-rule C(ii) would not be applicable when the
category of prisoners is of prisoners convicted for serious
economic offences or bank scams or offences under the
Special Acts. Thus there is no substance in the contention
as urged on behalf of the petitioner that the notification is
in any manner contrary to the basic provision of Rule
19(A), (B). The amended rule in no manner takes away
the discretion of the authority effecting these provisions so
as to confer any vested right in the prisoners who stand
convicted of serious offences."
33. In the case of Asfaq v. State of Rajasthan & Ors. (supra),
relied upon by learned counsel Mr. Rupesh Jaiswal appearing for the
petitioners, in para 19, the Supreme Court has made the following
observations:
"19) Another vital aspect that needs to be discussed is as
to whether there can be any presumption that a person
who is convicted of serious or heinous crime is to be, ipso
facto, treated as a hardened criminal. Hardened criminal
would be a person for whom it has become a habit or way
of life and such a person would necessarily tend to
commit crimes again and again. Obviously, if a person has
committed a serious offence for which he is convicted, but
at the same time it is also found that it is the only crime he
has committed, he cannot be categorised as a hardened
criminal. In his case consideration should be as to
whether he is showing the signs to reform himself and
become a good citizen or there are circumstances which
crwp746.21.odt
would indicate that he has a tendency to commit the crime
again or that he would be a threat to the society. Mere
nature of the offence committed by him should not be a
factor to deny the parole outrightly. Wherever a person
convicted has suffered incarceration for a long time, he
can be granted temporary parole, irrespective of the
nature of offence for which he was sentenced. We may
hasten to put a rider here, viz. in those cases where a
person has been convicted for committing a serious office,
the competent authority, while examining such cases, can
be well advised to have stricter standards in mind while
judging their cases on the parameters of good conduct,
habitual offender or while judging whether he could be
considered highly dangerous or prejudicial to the public
peace and tranquility etc."
34. In para 23 of the aforesaid judgment in Asfaq the Supreme
Court has also referred the Rules of the year 1995 of the Central
Government, in this behalf, as skeleton in nature.
35. In the case of Kalyan s/o Bansidharrao Renge (supra), relied
upon by learned counsel for the petitioners, the said Notification
dated 08.05.2020 pertaining to the release of the prisoners on
emergency parole is considered to the limited extent without referring
Rule 4 which is substantially amended in its application to the State
of Maharashtra in the year 2018.
crwp746.21.odt
36. In the case of Ravindrasing @ Munna s/o Dilipsing Parihar
(supra), the Division Bench of this Court also considered the said
Notification dated 08.05.2020 to the extent of the clause of last two
releases and surrender on time.
37. In the case of Mahesh Vsantrao Motaphale (supra) relied
upon by learned counsel for the petitioners, the same issue, as in the
earlier case of Ravindrasing, is considered and decided.
38. In the case of Shubham s/o Devidas Gajbhare (supra), relied
upon by learned counsel for the petitioners, the Division Bench of this
Court has held that the convict under Section 366(A) and 376 of IPC
is not entitled to get benefit of parole and furlough in terms of Rule
4(12) of the said Rules.
39. In Kantilal Nandlal Jaiswal (supra), the Full Bench of this
Court at Nagpur has dealt with the issue in a different context and
held that parole is not a mere administrative decision dictated by
administrative policy of State, but it is limited legal right available to
convict or prisoner subject to satisfaction of requirement specified in
the Rules of 1959 for grant of parole, with the avowed objectives to
be achieved as specified in Rule 1(A) of the said Rules.
crwp746.21.odt
40. It is to be mentioned here that Rule 4 in its application to the
State of Maharashtra is substituted by recent Notification dated
16.04.2018. Rule 4 of the said Rules is reproduced herein below:
"4. Eligibility for furlough -
All Indian prisoners except from following categories
whose annual conduct reports are good shall be eligible for
furlough:
(1) Habitual prisoners;
(2) Prisoners convicted of offences under sections 392 to
402 (both inclusive) of the Indian Penal Code (Prisoners may
be eligible for furlough after completion of stipulated sentence
in the respective section);
(3) Prisoners convicted of offences under the Bombay
Prohibition Act, 1949 (Prisoners may be eligible for furlough
after completion of stipulated sentence in the respective
section);
(4) Prisoners whose release is not recommended in Police
Commissionerate area by the Assistant Commissioner of Police
and elsewhere, by the Deputy Superintendent of Police on the
grounds of public peace and tranquility;
(5) Prisoners who, in the opinion of the Superintendent of
prison show tendency towards crime;
(6) Prisoners whose work and conduct are, in the opinion of
the Superintendent of the Prison, not satisfactory enough;
(7) Prisoners confined in Ratnagiri Special Prison (other
crwp746.21.odt
than prisoners transferred to that prison for Prison services);
(8) Prisoners convicted of offences of violence against
person or property committed for political motives, unless the
prior consent of the State Government to such release is
obtained (Prisoners may be eligible for furlough after
completion of stipulated sentence in the respective section);
(9) A Prisoner or class of prisoners in whose case the State
Government has directed that the prisoners shall not be
released or that the case should be referred to it for orders;
(10) Prisoners who have at any time escaped or attempted
to escape from lawful custody or have defaulted in any way in
surrendering themselves at the appropriate time after release
on parole or furlough;
(11) Prisoners whose presence is considered dangerous or
otherwise prejudicial to public peace and order by the District
Magistrate and Superintendent of Police;
(12) Prisoners who are considered dangerous or have been
involved in serious prison violence like assault, outbreak, riot,
mutiny or escape, or who have been found to be instigating the
serious violation of prison discipline, smuggling of narcotic and
psychotropic substances including convicted under Narcotic
Drugs and Psychotropic Substances Act, 1985 (61 of 1985),
rape or rape with murder, attempt to rape with murder and
foreigner prisoners (Prisoners may be eligible for furlough after
completion of stipulated sentence in the respective section);
(13) Who is sentenced for offences such as terrorist crimes,
mutiny against state, kidnapping for ransom (Prisoners may be
eligible for furlough after completion of stipulated sentence in
the respective section);
crwp746.21.odt
(14) Who is sentenced with death;
(15) Prisoners convicted for failure to give surety for
maintaining peace or good behavior;
(16) Prisoners suffering from mental illness, if not certified by
the Medical Officer to have recovered;
(17) Prisoners convicted of offences against any law relating
to matters to which the executive power of the Union
Government extends, unless approved by the Union
Government;
(18) Prisoners whose release on leave is likely to have
repercussions elsewhere in the country;
(19) Prisoners whose release on leave is likely to have
repercussions during the period of code of conduct of Local
bodies, Legislature and Parliament elections;
(20) Who in the opinion of police/prison authorities are likely
to jump furlough;
(21) Those involved in sexual offences against minor and
human trafficking."
41. Rule 19 sub-rule (1) of the said Rules contemplates
emergency parole and sub-rule (2) speaks about regular parole. So
far as sub-rule (2) about regular parole is concerned, all the prisoners
eligible for furlough shall be eligible for regular parole for the reasons
as mentioned in sub-rule (2). In the backdrop of the directions given
by the Supreme Court in Suo Motu Writ Petition (Civil) No. 1 of 2020
crwp746.21.odt
and so also considering the categorisation made by the HPC for
release of the convicted prisoners and also in terms of the newly
added sub-rule 19(1)(C), it cannot be said that the eligibility criteria
as contemplated under Rule 4 would be inapplicable to Rule 19(1)
(C).
42. So far as clause (ii) of Rule 19(1)(C) is concerned, the same
has been added on declaration of epidemic under the Epidemic
Diseases Act, 1897, by the State Government following the directions
of the Supreme Court as mentioned in the foregoing paragraphs in
detail in Suo Motu Writ Petition (Civil) No. 1 of 2020 and also by the
HPC. We are thus of the considered opinion that the provisions of
Rule 4 as reproduced hereinabove are equally applicable to clause
(ii) of the newly added Rule 19(1)(C).
43. So far as the petitions falling under category I are concerned,
the issue involved in those petitions is about late surrender of the
convicted prisoners on earlier release on parole or furlough. In the
added sub-rule (C) of Rule 19(1), a condition is laid down that the
prisoner whose maximum sentence is above 7 years shall be
appropriately considered for release on emergency parole if the
convict has returned to prison on time on last 2 releases (whether on
parole or furlough).
crwp746.21.odt
44. However, Rule 23A of the Maharashtra Prisons (Remission
System) Rules, 1962 is brought to our notice which deals with
regulation for prisoners coming late from parole and furlough. The
proportion of cut in remission for the prisoners coming late from
parole and furlough is prescribed and shown in the chart. The said
chart which is the integral part of Rule 23A is reproduced below to
the extent of the prisoners coming late from parole:
23A. Regulations for prisoners coming late from parole and
furlough.
The Prisoner coming late from parole and furlough the
proportion of cutting in remission shall be as follows:-
For the prisoners coming late from Parole
Sr. Category Proportion of cut in
No. remission
(1) (2) (3)
1. If the prisoner surrenders himself Strict warning
to the prison authorities on the
next day after expiry of the
period of sanctioned parole
2. Late for first time by 2 to 15 days
after expiry of the pertiod of
sanctioned parole
(A) Surrender himself to jail 1:1 day
(B) Brought by police authorities 1:2 days
to jail
3. Late for the first time by more
than 15 days and upto one
month after expiry of the period
of sanctioned parole
(A) Surrender himself to jail 1:3 days
crwp746.21.odt
(B) Brought by police authorities 1:4 days
to jail
4. Late by more than one month
and upto two months after expiry
of the period of sanctioned
parole
(A) Surrender himself to jail 1:4 days
(B) Brought by police authorities 1:5 days
to jail
5. Late by more than two months 1:5 days
and upto three months after
expiry of the period of sanctioned
parole either surrendered himself
or brought by police authorities
6. Late while on second parole for 1:5 days. However, if the
the period mentioned in clauses reason for being late is
(1) to (5) above jursitifiable then cut in
remission in
proportionate with the
clauses (1) to (5) above.
7. Unauthorised stay outside the jail Remission will not be
for the period more than three given for three years.
months and upto six months or
brought by police.
8. If prisoner stays outside the jail Prisoner remission shall
unauthorisedly for the period of be cut permanently.
six months or more
9. If prisoner produce forged The order sanctioning
documents or gives false reason parole shall be cancelled
for getting the parole or got immediately and such
sanctioned the parole by period shall be treated as
producing forged documents. unauthrised and for this
period remission will be
cut in proportionate with
the clauses (1) to (5)
above.
45. In the instant bunch of petitions, so far as category I is
concerned, we have seven petitions preferred against the rejection of
emergency parole for coming late while released on parole on earlier
occasion. In terms of the above chart, so far as the category at serial
crwp746.21.odt
number (1) is concerned, as per the category (1) if the prisoner
surrenders himself to the prison authorities on the next day after
expiry of the period of sanctioned parole, strict warning is
contemplated. In terms of category (2), if the prisoner is late for first
time by 2 to 15 days after expiry of the period of sanctioned parole
and (A) surrenders himself to jail, then, 1:1 day and (B) brought by
police authorities to jail, then, 1:2 days is the prescribed proportion of
cut in remission. Even in terms of Rule 24(2) of the Maharashtra
Prisons (Remission System) Rules, 1962, the Superintendent may,
with the previous sanction of the Regional Deputy Inspector General,
readmit to the remission system any prisoner, who has been
permanently removed therefrom under rule 23 if his conduct in prison
justifies this subsequently. In categories (1) and (2) of Rule 23A of the
Maharashtra Prisons (Remission System) Rules, 1962, as discussed
above, the proportion of cut in remission is not contemplated or
contemplated to the minimum extent. Even in the newly added Rule
19(1)(C) and even in Rule 4 of the said Rules, the exact period of
late return is not mentioned. However, in the light of category (1) of
Rule 23A of the Maharashtra Prisons (Remission System) Rules,
1962, which contemplates strict warning if the prisoner surrenders
himself to the prison authorities on the next day after expiry of the
period of sanctioned parole, we are inclined to consider the petition
at sr. no. 3 of category I i.e. Criminal Writ Petition No. 647 of 2021
crwp746.21.odt
filed by Nazira Anwarkhan Pathan (C-8010) who has returned late by
one day and that is the sole reason for rejection of emergency parole
to her. All the other petitioners in category I are not entitled for parole
in terms of the newly added provisions of Rule 19(1)(C) and Rule
4(10) of the said Rules.
46. In category II of the petitions, the eligibility for parole in terms
of the provisions of Rule 4 of the said Rules is considered while
rejecting emergency parole. In all the petitions in category II, the
reason for rejection of emergency parole is in view of the bar of Rule
4(12) of the said Rules. Rule 4(12) is reproduced herein below:
"4. Eligibility for furlough -
All Indian prisoners except from following categories
whose annual conduct reports are good shall be eligible for
furlough :-
(1) to (11) .....
(12) Prisoners who are considered dangerous or have been
involved in serious prison violence like assault, outbreak, riot,
mutiny or escape, or who have been found to be instigating the
serious violation of prison discipline, smuggling of narcotic and
psychotropic substances including convicted under Narcotic
Drugs and Psychotropic Substances Act, 1985 (61 of 1985),
rape or rape with murder, attempt to rape with murder and
foreigner prisoners (Prisoners may be eligible for furlough after
completion of stipulated sentence in the respective section);"
crwp746.21.odt
47. In view of the discussion in the foregoing paragraphs, we are
of the considered opinion that the petitioners in category II are not
entitled to be released on parole as they have been convicted under
Section 376(2)(g) or 376(d) or 376(2)(i) or 376(2)(n) of IPC and the
petitioner in Criminal Writ Petition No. 719 of 2021 (at serial no.2 of
category II) is also convicted under Section 3(2) of the MCOC Act.
48. So far as category III is concerned, there is no dispute about
the legal position that the prisoner may be considered for first release
on parole after completion of three years of imprisonment counted
from the date of admission. Thus, no case is made out to interfere in
the order impugned in Criminal Writ Petition No. 601 of 2021. Hence
we proceed to pass the following order:
ORDER
I. The petition at sr. no. 3 of category I i.e. Criminal Writ Petition
No. 647 of 2021 filed by Nazira Anwarkhan Pathan (C-8010) is
hereby allowed in terms of prayer clause "A".
II. Rest of the Criminal Writ Petitions from category I are hereby
dismissed.
crwp746.21.odt
III. However, in petition at serial no.4 of Category I, i.e. Criminal
Writ Petition No. 679 of 2021 [Arjun Kacharu Unavane (C-5117) v.
The State of Maharashtra and Another], if furlough application of the
convict is pending without any order passed thereon, the same shall
be decided at the earliest.
IV. All the Criminal Writ Petitions from category II and category III
are hereby dismissed.
V. All the Criminal Writ Petitions are accordingly disposed off.
(S. G. DIGE, J.) (V. K. JADHAV, J.)
vre/
