Sachin S/O Gajanan Shete vs The State Of Maharashtra
2021 Latest Caselaw 11554 Bom

                                                              wp-2243-2021.doc




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

                       WRIT PETITION NO.2243 OF 2021

Sachin Gajanan Shete                                   ...Petitioner
           vs.
The State of Maharashtra
(Through Superintendent,
Central Prison, Yerwada, Pune)                         ...Respondent

Mr. Rupesh Jaiswal, for the Petitioner.
Mrs. M.H. Mhatre, APP for the Respondent-State.

                                 CORAM : S.S. SHINDE &
                                         N.J. JAMADAR, JJ.

                   JUDGMENT RESERVED ON :  11th AUGUST, 2021
                   JUDGMENT PRONOUNCED ON : 23rd AUGUST, 2021



                                  ---------------

JUDGMENT : (Per N.J.Jamadar, J.)

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

consent of the counsels for the parties, heard fnally.



2.       This petition under Article 226 of the Constitution of India

calls in question the legality and correctness of the order dated

22nd July, 2020 passed by the Superintendent, Yerwada Central

Prison, Pune- respondent, whereby the application of the

petitioner for release on Covid-19 emergency parole came to be


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rejected on the count of overstay by 49 days when the petitioner

was released on furlough on 8th February, 2012 and by 274 days

when the petitioner was released on parole on 9 th February,

2013.



3.            Shorn of superfuities, the background facts can be

stated as under:

         The petitioner came to be convicted for the offence

punishable under section 302 read with 34 of the Indian Penal

Code, 1860 (the Penal Code) by judgment and order dated 11 th

June, 2001. The petitioner has been in custody since 22 nd

October, 2000. The petitioner asserts that he had overstayed by

274 days when he was released on parole on 11 th February,

2012. However, the petitioner has already been punished by

striking off his name from the remission register permanently.

Thus, in the wake of situation which arose on account of Covid-

19 pandemic, the said period of overstay could not have been

arrayed against the petitioner to deprive him of the beneft of

Rule 19(1)(c) of the Prisons (Bombay Furlough and Parole) Rules,

1959 (the Rules, 1959). Consequently, the impugned order

rejecting the request of the petitioner for for the overstay in the


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year 2012 and 2013 is illegal and unsustainable and deserves to

be quashed and set aside.



4.       We have heard Mr. Jaiswal, learned counsel for the

petitioner, and Mrs. Mhatre, learned APP for the State.



5.       With the assistance of the learned counsels, we have also

perused the material on record including a report submitted by

the respondent on 20th June, 2021 to which a chart indicating

details of incarceration is annexed.



6.          Mr. Jaiswal would urge that the respondent committed an

error in negativing the prayer of the petitioner to release him on

Covid        19        emergency   parole   by   taking   recourse   to   the

conditionality of return on time on previous two occasions,

prescribed in Rule 19(1)(c)(ii) of the Rules, 1959. Mr. Jaiswal

submitted with tenacity that the facts that the said overstay had

occurred prior to seven years and the petitioner has already

been punished adequately for the said overstay could not have

been lost sight of. Having regard to the total period of

incarceration, the beneft of the Rule could not have been denied



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to the petitioner, urged Mr. Jaiswal.



7.         In contrast, Mrs. Mhatre, supported the impugned order.

In the light of the fact that the petitioner had overstayed, on

each of the occasions when he was released in the past, on

furlough or parole, the respondent was within his rights in

negativing the request of the petitioner, submitted Mrs. Mhatre.



8.            We have considered the rival submissions. First and

foremost, the period of incarceration which the petitioner has

undergone. It appears that the petitioner has been sentenced to

suffer imprisonment for life for the offence punishable under

section 302 read with 34 of the Penal Code. As of 31 st May, 2021

the petitioner had undergone 19 years and 6 months actual

imprisonment. Undoubtedly, the petitioner had overstayed by

274 days when he was released on parole in the year 2013. The

record submitted by the respondent reveals that for the said

overstay, the petitioner came to be punished by striking off his

name permanently from the remission register. In effect, the

petitioner has been debarred from claiming remission. As

regards the second count of delayed reporting by 49 days, when



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the petitioner was released on furlough, it is imperative to note

that the petitioner surrendered on his own. Considerable time

has elapsed from the said lapses in reporting on time, on the

part of the petitioner.



9.       In the backdrop of the fact that the petitioner has, as of

today, undergone almost 19 years and 9 months actual

imprisonment, the aforesaid delayed reporting back to prison on

the part of the petitioner, in our view, pales in signifcance.

Moreover, the petitioner was punished by deducting 196 days of

remission for the overstay of 49 days and subsequently he has

been saddled with the penalty of permanent forfeiture of

remission for the overstay of 274 days.



10. In our view, the petitioner has been adequately punished

for the said overstay. It is imperative to note that had the period

of remission been counted, by now, the petitioner would have

been eligible for premature release after completion of 14 years

of imprisonment as the petitioner is categorized in a category

which permits the release of the prisoner after completion of 24

years of imprisonment, including remission. But, for denial of


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remission to the petitioner, he continues to be incarcerated.



11.        In the aforesaid view of the matter, we are inclined to allow

the petition. Hence, the following order.

                                  ORDER

a] The impugned order dated 22nd July, 2020 passed by the

Superintendent, Yerwada Central Prison, Pune stands quashed

and set aside.

b] The petitioner/convict Sachin Gajanan Shete is directed to

be released on emergency Covid 19 parole on usual terms and

conditions as the respondent may fnd suitable to be imposed in

the circumstances of the case.

c] The petitioner shall abide by all the conditions which may

be imposed by the respondent.

d] Necessary orders for the release of the petitioner be passed

by 31st August, 2021.

e] Rule made absolute in the aforesaid terms.

f] All concerned to act on on an authenticated copy of this

judgment and order.

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


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