Mukthar @ Raj Jakir Khan vs The State Of Maharashtra And Ors
2021 Latest Caselaw 2487 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION
                 CRIMINAL WRIT PETITION NO.70 OF 2021


      Mukthar @ Raj Jakir Khan,               ]
      Age : 35, Occupation : Labourer,        ]
      R/at : Khadkali, Bhadrakali             ]
      (Presently in Nashik Central Prison,    ]
      Nashik)                                 ]
                                              ]        .. Petitioner
                           VERSUS

1. The State of Maharashtra,                  ]
   Through its Principal Secretary,           ]
   Home Department, Mantralaya,               ]
   Mumbai - 32.                               ]
                                              ]
2. The Divisional Commissioner,               ]
   Nashik Division, Nashik,                   ]
   Office at Commissioner Officer,            ]
   Nashik Road, Nashik                        ]
                                              ]
3. The Deputy Inspector General of Police     ]
   (Prison),                                  ]
   Central Division, Central Prison,          ]
   Harsul, Aurangabad.                        ]
                                              ]
4. The Superintendent of Prison,              ]
   Central Prison, Nashik Road,               ]
   Nashik.                                    ]      .. Respondents


Mr.Aniket U. Nikam i/b Mr.Nihal M. Mansuri for the Petitioner.

Smt.A.S.Pai, APP for the Respondent/ State.




M.M.Salgaonkar




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                                  CORAM        : S.S.SHINDE &
                                                 MANISH PITALE, JJ.

                  RESERVED ON                    : 01ST FEBRUARY, 2021
                  PRONOUNCED ON                  : 08th FEBRUARY, 2021


JUDGMENT (PER MANISH PITALE, J.)

1. Rule. Rule made returnable forthwith. With the consent of learned counsel appearing for the parties, heard finally.

2. By this writ petition, the petitioner has challenged the communication/order dated 19th September, 2020 issued by respondent No.4, whereby the application filed by the petitioner for grant of emergency Covid-19 parole has been rejected.

3. The petitioner is a convict undergoing sentence of imprisonment for life at Central Prison, Nashik Road, Nashik. The appeal preferred by the petitioner against his conviction and sentence is pending before this Court. The petitioner had earlier availed of parole leave and the record shows that, he reported late by one day, on completion of his parole.

4. In view of the Covid-19 pandemic, High Power Committee constituted by the Respondent/State thought it fit to amend the Prisons (Bombay Furlough and Parole) Rules, 1959 so as to identify the categories of convicts, who could avail emergency Covid-19 parole. In pursuance of the said amendment, the petitioner submitted the aforesaid application for grant of emergency Covid-19 parole. As noted above, by the impugned order dated 19 th September, 2020, the said application was rejected.

M.M.Salgaonkar





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5. Mr.Nikam, learned counsel appearing for the petitioner, submitted that the impugned order deserves to be set aside because the two reasons stated in the order of rejection were unsustainable. It is submitted that the first reason stated in the impugned order was that, on an earlier occasion, the petitioner had reported late by one day after availing parole leave and the second reason was that the petitioner had been granted parole only once. Learned counsel for the petitioner submitted that insofar as the first reason is concerned, the same was unsustainable for the reason that for each day of reporting late from parole leave, one day is reduced from the facility of remission available to the convict. Insofar as the second reason is concerned, it was submitted that this Court had held in Kalyan s/o Bansidharrao Renge Vs. The State of Maharashta & Anr. (Criminal Writ Petition No.ASDB-LD-VC 265 OF 2020) and Uzair @ Hujer S/o Rafiq Shaikh Vs. The State of Maharashtra & Ors. ( Criminal Writ Petition No.2989 of 2020) that even emergency Covid-19 parole could not be refused to a convict only because he had availed of parole leave only once on an earlier occasion. On this basis, it was submitted that the impugned order deserved to be set aside and the application for grant of parole leave deserved to be allowed.

6. On the other hand, Mrs.A.S.Pai, learned APP appearing on behalf of the respondents, submitted that the situation pertaining to Covid-19 pandemic had now changed. It was submitted that in the Central Prison, Nashik Road, Nashik, the number of inmates were less than the capacity of the jail and further, neither any of the inmates nor staff of the jail was suffering from Covid-19. On this basis, it was submitted that since the circumstances had materially changed, it would not be appropriate to grant the application filed

M.M.Salgaonkar

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by the petitioner and, at the most, the petitioner could be permitted to make an application afresh, which could be decided in the light of the changed circumstances.

7. Having heard the learned counsel appearing for the rival parties, we are of the opinion that the reasons stated in the impugned order while rejecting the application for emergency Covid-19 parole cannot be sustained. The learned counsel appearing for the petitioner is justified in submitting that reporting late by one day on an earlier occasion when parole was granted, had already resulted in adjustment of the same towards the facility of remission available to the petitioner. As regards the second reason stated in the impugned order, judgment of this Court in the case of Kalyan (supra), clearly lays down that the application for grant of emergency Covid-19 parole cannot be rejected merely because the applicant had availed of parole leave only once on an earlier occasion.

8. But, there is substance in the contention raised by the learned APP on behalf of the State to the effect that the circumstances pertaining to the pandemic have now changed. It is brought to the notice of this Court that the number of inmates in the Nashik Road Jail is less than the capacity and that none of the inmates or the staff are suffering from Covid-19. In these circumstances, it would be appropriate that a fresh decision is taken in the matter and the petitioner is granted an opportunity to apply afresh for grant of emergency Covid-19 parole.

M.M.Salgaonkar





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9. In view of the above, the writ petition is partly allowed. The impugned order is set aside. The petitioner is granted liberty to apply afresh for grant of emergency Covid-19 parole. In case, such an application is submitted by the petitioner, respondent No.4 shall dispose of the same, within two weeks of submission of such application, in the light of the present circumstances of the Central Prison, Nashik Road, Nashik in the context of the Covid-19 pandemic.

10. Rule is made absolute in the above terms.

      (MANISH PITALE, J.)                       (S.S.SHINDE, J.)




M.M.Salgaonkar