Pramod Shankar Jadhav vs The State Of Maharashtra And Anr
2021 Latest Caselaw 11779 Bom

                                                              wp-2362-2021.doc




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

                       WRIT PETITION NO.2362 OF 2021

Pramod Shankar Jadhav                               ...Petitioner
           vs.
The State of Maharashtra and Another                ...Respondents

Ms. Payoshi Roy a/w. Ms. Chandani Chawla i/b. Dr. Yug
Choudhari, for the Petitioner.
Mrs. M.H. Mhatre, APP for the Respondent-State.

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

JUDGMENT RESERVED ON : 17th AUGUST, 2021 JUDGMENT PRONOUNCED ON : 25th 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. The petitioner, who is a life convict, takes exception to the

order dated 18th May, 2021 passed by the Superintendent,

Kolhapur Central Prison, Kalamba whereby the prayer of the

petitioner to release him on emergency Covid 19 parole under

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

Rules, 1959 (the Rules, 1959) came to be rejected.

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3. The petition arises in the backdrop of the following facts.

a] The petitioner came to be convicted in a Special Case No. 3

of 2002 for the offences punishable under sections 364A, 395,

397, 387, 342 read with 34 of Indian Penal Code, 1860 (the Penal

Code) and section 3(1)(ii), 3(2), 3(4) of Maharashtra Control of

Organised Crime Act, 1999 (MCOCA), by the judgment and order

dated 20th October, 2005 and sentenced to suffer imprisonment

for life for the major offences and pay fne of Rs. 15,04,000/- and

in default suffer imprisonment for of 10 years.

b] The petitioner has undergone the substantive sentence.

Since the petitioner has not paid fne, the petitioner has been

undergoing sentence in default of payment of fne since 5 th

October, 2016.

c] On 25th June, 2013 the petitioner was released on parole

for 30 days. The petitioner jumped the parole. He was required to

be arrested and brought back to prison after 421 days. For the

said overstay, the petitioner is being prosecuted for the offence

punishable under section 224 of Indian Penal Code, 1860 (the

Penal Code) in R.C.C.No.7296 of 2014.

e] In the wake of Covid 19 pandemic, the petitioner fled an

application for emergency Covid 19 parole. The said request was

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turned down by the respondent No. 2 by the order dated 18 th

December, 2020. The principal reasons were the conviction of the

petitioner for the offences punishable under MCOCA and overstay by

421 days when the petitioner was released on parole in the year 2013.

f] The petitioner invoked the writ jurisdiction of this Court by

fling Writ Petition No. 767 of 2021. By the judgment and order dated

29th April, 2021 this Court directed the respondent No. 2 to consider

the prayer of the petitioner for release on emergency parole afresh. It

was, inter alia, opined that since the petitioner has already undergone

the entire substantive sentence for the offences punishable under

MCOCA his prayer could not have been negatived on the said count.

g] Pursuant to aforesaid judgment and order, the petitioner fled a

fresh application. By the impugned order dated 18th May, 2021, the

respondent No. 2 again rejected the prayer of the petitioner by

ascribing two-fold reasons. One, on account of safety and health

measures taken by the prison administration, the situation which

arose on account of Covid 19 pandemic, was under control. Two, the

petitioner had not returned to prison, when he was released on parole

in the year 2013 and was required to be arrested and brought back to

prison after 421 days. Being aggrieved, the petitioner has again

invoked writ jurisdiction.

4. We have heard Ms. Roy, learned counsel for the petitioner and

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Mrs. Mhatre, learned APP.

5. With the assistance of the learned counsel for the parties, we

have carefully perused the material on record including the reports

submitted by respondent No. 2, to which the chart containing the

details of the incarceration of the petitioner is annexed.

6. Ms. Roy strenuously submitted that the rejection of the prayer

of the petitioner for release on emergency parole, despite direction of

this Court, in the judgment and order dated 29 th April, 2021 in Writ

Petition No. 767 of 2021, to reconsider the request of the petitioner, is

wholly unsustainable. Ms. Roy would urge that the prayer of the

petitioner came to be turned down on the self same grounds, which

weighed with the said authority in passing the earlier order of

rejection dated 18th December, 2020, which was quashed and set

aside by this Court. Ms. Roy further submitted that the impugned

order suffers from grave infrmity as respondent No. 2 has not

adequately considered the fact that the petitioner has already

undergone the substantive sentence and continues to be incarcerated

for default in payment of fne to the tune of Rs. 15,04,000/-, on

account of poverty. The apprehension entertained by the respondent

No. 2 on the part of the petitioner jumping the parole based on the

overstay in the year 2013, was also stated to be unfounded as

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suffcient time has elapsed from the said lapse. In any event, to lend

assurance for the timely return of the petitioner, two persons have

now volunteered to stand surety for the petitioner, whose affdavits

have been fled on record, submitted Ms. Roy.

7. In opposition to this, Mrs. Mhatre, learnedd APP supported the

impugned order on both the counts. It was urged that having regard

to the period of overstay (421 days), the inference drawn by

respondent No. 2 about the possibility of petitioner not returning to

prison cannot be said to be unfounded. Secondly, the claim of the

authority that the situation is under control can be said to be a

exaggerated, submitted Mrs. Mhatre.

8. We have given our anxious consideration to the rival

submissions. At the outset, we deem it appropriate to extract the

observations of this Court in the judgment and order dated 29 th April,

2021 whereby and whereunder, respondent No. 2 was directed to

reconsider the prayer of the petitioner. The relevant part of paragraph

No. 10 reads as under:

10. ................Therefore, the Petitioner has already undergone sentence ordered for the offence punishable under MCOC Act. Hence on that ground the Petitioner could not deny the emergency Covid-19 Parole. It is an admitted fact that the Petitioner did not surrender within time when he was earlier released on furlough and he was arrested and brought back to the

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jail after 421 days. However, presently there is serious situation due to Covid-19 pandemic and virus is spreading very rapidly and thereby affecting life of inmates. Keeping in view aims and objects of notifcation dated 08/05/2020 issued by the Government of Maharashtra, we are of the opinion that the Petitioner's case deserves to be re-considered by the Respondent-Authority. Accordingly, the impugned order passed by the Respondent-Authority is quashed and set aside. The Petitioner is granted liberty to fle fresh application forthwith. In case such an application is fled by the Petitioner, the Respondent-Authority is directed to decide the same as expeditiously as possible, however, within two weeks from fling such application in accordance with law and on its own merits and keeping in view the factors like the extent of spread of Covid-19 virus and conditions in jail.

9. In the aforesaid order, this Court made it explicitly clear

that the petitioner cannot be deprived of the beneft of release on

parole on the count that he has been convicted for the offence

punishable under section MCOCA since the petitioner had

already undergone the substantive sentence for the same. In this

view of the matter, what remained for consideration was the

situation in the prison and the delayed reporting by 421 days. In

our view, these aspects cannot be appreciated without

considering the period of sentence which the petitioner has

already undergone.

10. The bare perusal of the chart containing the details of

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incarceration would indicate that the petitioner is shown to have

undergone almost 21 years and 8 months imprisonment. The

substantive sentence for the offences came to an end on 4 th

October, 2016. The petitioner is undergoing sentence in default

of payment of fne w.e.f.5th October, 2016. We cannot loose site

of the fact that the petitioner came to be convicted for the

offences punishable under section 3(1)(ii), 3(2), 3(4) of the

MCOCA which prescribe the minimum fne of Rs. 5 lakhs, and

thus the Special Judge could not have imposed fne less than

Rs. 5 lakhs on each count. Evidently, the petitioner comes from

poor strata of the society. Adverse social condition and poor

fnancial position are the obvious consequences of an

incarceration for 20 long years.

11. Indisputably, the petitioner overstayed by 421 days

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

has been penalized for the same by forfeiture of remission of

sentence. In addition a prosecution for the offence punishable

under section 421 of the Penal Code is pending. It would be

contextually relevant to note that when the petitioner was

released on parole in the year 2011, the petitioner had reported

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to prison on time. Thus, the delayed reporting by 421 days, in

the year 2013, in the backdrop of the period which had elapsed

from the said lapse, and the substantive sentence having been

already undergone by the petitioner cannot be arrayed against

the petitioner forever. It would be unjust and unreasonable to

deprive the petitioner of the beneft of the emergency parole for

the said lapse.

12. There is another factor, which bears upon the claim of the

petitioner. The chart of incarceration reveals that the petitioner

has completed 14 years of actual imprisonment and was

extended the beneft of premature release, upon completion of

substantive sentence. However, the petitioner continues to

incarcerated on account of default in payment of fne. As

indicated above, quantum of fne is huge by any standard. From

this stand point, the submission on behalf of the petitioner that

the petitioner continues to languish in prison on account of

poverty cannot be said to be unsustainable. As regards the

apprehension, on the part of the respondent No. 2 about the

petitioner jumping the parole, we are of the view that two

proposed sureties namely Rekha Rane and Anant Patil who have

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fled their affdavits before this Court, appear to have standing in

the society and are in a position to control the activities of the

petitioner. Moreover, Police Inspector, Murbad police station has

verifed the credentials of those persons and authenticity of the

documents submitted by them.

13. In the totality of the circumstances, in our view, the

petitioner deserves to be released on Covid 19 emergency parole.

Thus, we are inclined to allow the petition. Hence, the following

order.

                                        ORDER

i]       The petition stands allowed.

ii]      The petitioner be released on Covid 19 emergency parole in

accordance with Rule 19(1)(c)(ii) of the Rules, 1959 on such

terms and conditions which the respondent No. 2 may deem

appropriate to impose in the facts of the case in addition to the

following:-

a] Ms. Rekha Kate and Mr. Anant Patil who have fled

affdavits before the Court, shall furnish a surety bond in the

sum of Rs. 25,000/- each.

b]       The petitioner, on his release, on parole shall attend


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Murbad police station on every Monday in between 10 am to 12

noon to mark his presence.

c] The petitioner shall report back to prison upon the expiry

of the period of emergency parole.

d] The petitioner shall abide by all the other terms and

conditions as may be imposed by the respondent No. 2.

iii] Rule made absolute in aforesaid terms.

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




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