Manoj Prabhakar Lohar vs The State Of Maharashtra
2021 Latest Caselaw 2590 Bom

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           Vishwanath                                  1/8                       CRWP-73-2021(J).doc
Vishwanath S. Sherla
S. Sherla  Date:
           2021.02.09
           19:48:22
           +0530          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE JURISDICTION

                                CRIMINAL WRIT PETITION NO. 73 OF 2021

            Manoj S/o. Prabhakar Lohar
            R/o. 1701 Crinton Building,
            Vasant Niwas, Thane (W),
            District: Thane, Maharashtra.
            (At Present lodged at Yervada
            Central Prison, Pune)                                   ...PETITIONER

                     Versus

            The State of Maharashtra
            Through Secretary, Home
            Ministry, Mumbai, Maharashtra.                          ...RESPONDENT
                                                 ...
            Mr. S.B. Talekar i/b Mr. Samir A. Vaidya for Petitioner.
            Mrs. S.D. Shinde, APP for State.
                                                 ...
                                        CORAM : S. S. SHINDE &
                                                     MANISH PITALE, JJ.

RESERVED ON : 3rd FEBRUARY , 2021.

PRONOUNCED ON: 9th FEBRUARY, 2021.

JUDGMENT [PER S.S. SHINDE, J.]:

1. The Petitioner by way of this writ petition under article 226 of

the Constitution of India prays for his release on emergency parole in terms

of Government notification dated 08.05.2020 and in terms of High Power

Committee guidelines dated 11.05.2020 and 18.05.2020 and also in terms of

order passed by this Hon'ble Court in the matter of PUCL V/s. Union of

India and others and also in a P.I.L. filed by the activist Medha Patkar and in

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view of the liberty granted to the Petitioner by this Hon'ble Court (Coram:

R.D. Dhanuka and V.G. Bisht, JJ.) in Criminal Writ Petition No. 53 of 2020.

2. It is the case of the petitioner that C.R. No. I-145 of 2009 was

registered against the Petitioner for the offences punishable under Section

347, 364-A, 384 read with 34 of IPC at Jalgaon. The Sessions Court, Jalgaon

convicted the present petitioner and sentenced to life imprisonment. On

03.04.2019 the appeal of the petitioner was admitted by the Bombay High

Court, bench at Aurangabad, however, application to release him on bail was

rejected. He approached the Supreme Court for interim bail on medical

ground. He was granted interim bail by the Supreme Court. The Petitioner

was operated on 14.02.2020 and AICD implanted in his heart. On 03.03.2020

cardiac surgeon, J.J. Hospital issued certificate depicting actual health

condition of the petitioner.

3. It is the case of the Petitioner that on 11.03.2020 first corona

virus case was detected in Mumbai. On 27.03.2020 the Petitioner submitted

his application for parole leave with the jail authority. On 7.05.2020 Jupiter

Hospital, Thane, issued a certificate disclosing the Petitioner a high risk

patient. On 07.05.2020 almost 184 inmates and 24 police personnel in jail

were tested positive for carona virus. On 26.05.2020 this Court (Coram: Nitin

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Jamdar & N.R. Borkar, JJ.) directed the jail authorities to decide the

petitioner's application seeking emergency parole. On 27.05.2020 the

Petitioner submitted emergency parole application with jail authority. On

30.05.2020 the jail authorities/IG Prisons rejected the petitioner's application

seeking emergency parole. On 30.06.2020 the Petitioner filed Criminal Writ

Petition No. 52 of 2020 challenging the rejection of emergency parole. On

28.08.2020 this Hon'ble Court (Coram:- R.D. Dhanuka & V.G. Bisht, JJ.)

upon perusal of the medical report of the Petitioner who was tested positive

for Covid-19 was satisfied that he was being treated and accordingly granted

liberty to approach this Hon'ble Court afresh. Pursuant to the liberty given by

this Court (Coram:- R.D. Dhanuka & V.G. Bisht, JJ.) on 28.08.2020, this

petition is filed by the petitioner.

4. Mr. Talekar instructed by Mr. Samir Vaidya appearing for the

Petitioner would submit that the medical certificate of the petitioner would

clearly show that the petitioner is a high risk patient. He was tested positive

for Covid-19 and therefore, he deserves to be released from the jail on

emergency parole. It is submitted that the order passed by the jail authorities

rejecting the parole leave application vide order dated 30.05.2020 in terms of

Rule 4 (13) of the Prisons (Bombay Furlough and Parole) Rules, 1959 even

otherwise is prima facie bad in law in view of the law laid down by the

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Bombay High Court at Aurangabad in the case of Baburao Marotrao Dakhore

V/s. State of Maharashtra & Others in Criminal Writ Petition No. 1397 of

2017. Admittedly, if the interpretation of the jail authority is considered and

accepted the same in itself would completely deny the right to any such

prisoner inmate to seek parole leave. This Hon'ble Court, so also the Hon'ble

Apex Court has interpreted the Rule 4 (13) of the Prisons (Bombay Furlough

and Parole) Rules, 1959 and emphasize a harmonious construction of such

Rule, and therefore even on this count the order passed by the jail authority is

bad in law. It is submitted that the rejection of parole leave misinterpreting

the emergency parole leave by the jail authority in itself denies the very basis

for seeking such leave and the criteria of previous parole and/or furlough

leave and/or surrender thereupon cannot be any consequence for seeking

emergency parole leave during the pandemic in view of the emergency parole

leave as notified by the Government of Maharashtra in the notification dated

08.05.2020. It is further submitted by the learned counsel for the petitioner

that the order passed by the jail authority is contrary to the law laid down by

the Hon'ble Full Bench of this Hon'ble Court in the case of Kantilal

Nandalal Jaiswal Vs. Divisional Commissioner, Nagpur Division, Nagpur in

Criminal Writ Petition No. 1046 of 2018 dated 13.09.2019, wherein the

Hon'be Full Bench has recognized the right of the prisoner to parole and has

further held that proviso to that amended Rule 19 (2) to introduce in terms of

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notification dated 16.04.2019 is ultra-virus Article 14 and 21 of the

Constitution of India and therefore, the impugned order passed by the jail

authority is per se illegal and perverse. The Hon'ble Apex Court in the case

of Ashfax Vs. State of Rajasthan 2017 (15) SCC 55, (Para 18, 19) has

recognized the right to parole as a reform and for continuation of family life

of such prisoner. It is submitted that upon perusal of the amended rule 19 (1)

(C) the same ought to be applied to the Petitioner's case considering the

undisputed and admitted fact that the Pandemic/Epidemic Act is invoked by

the State of Maharashtra and therefore even otherwise the Petitioner is

entitled to parole leave. It is submitted that upon perusal of the provisions of

amended rule 19 more specifically Rule B, wherein it is categorically

mentioned emergency parole meaning thereby the emergency as stipulated

also included natural calamities and the present covid-19 is also a calamity

and covered within the amended Rule 19 (1) (C) and therefore, the order

passed by the jail authority is contrary to the Rule itself and therefore, the

said order is liable to be set aside on the face of it.

5. It is further submitted that the jail authority has failed to make

distinction between regular parole and covid-19 parole. Learned counsel

invites our attention to the pleadings and ground taken in the petition and

submits that the petition may be allowed.

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6. On the other hand, learned APP appearing for State submits that

the petitioner is convicted under serious offence i.e. 364-A of IPC. It is

submitted that in view of Rule 4(13) of the Prisons (Bombay Furlough and

Parole) Rules, 1959, the petitioner is not entitled for parole. It is submitted

that presently in jail there is no single inmate or employee tested positive for

Covid-19 and everyday there is thermal scanning and rapid antigen test are

being conducted. All preventive steps are being taken to control the spread of

Covid-19 virus. Even otherwise in the State of Maharashtra life comes to the

normalcy and there is no eminent thereat from the spread of Covid-19 virus.

The Petitioner is also availed sufficient medical leave pursuant to the order

passed by Hon'ble Supreme Court.

7. We have given due consideration to the rival submissions of the

learned counsel appearing for the parties. With their able assistance perused

the pleadings and grounds taken in the petition, annexures thereto, so also the

report submitted by the jail authority. It is admitted position that the

petitioner is convicted for the offence punishable under Section 364-A of

IPC, which reads thus:-

364-A. Kidnapping for ransom, etc.- Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to

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reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or [any foreign State or international inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.]

8. The respondent has heavily relied on the Rule 4 (13) of Prison

Act, 1984. Rule 4 (13) of the Prisons (Bombay Furlough and Parole) Rules,

1959, which reads thus:-

4. Eligibility for Furlough.- .....

.....

.....

(13) Who is sentenced for offences such as terrorist crimes, mutiny against stake, kidnapping for ransom (Prisoners may be eligible for furlough after completion of stipulated sentence in the respective section);

9. In our opinion the cumulative effect of the conviction of

petitioner for serious offence punishable under section 364-A of IPC and

Rule 4(13) of the Prisons (Bombay Furlough and Parole) Rules, 1959 is that

the petitioner is not entitled for parole. The Petitioner himself disclosed in the

petition that he was released on medical ground by the Hon'ble Supreme

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Court for period of three months to treat his ailment and accordingly, he has

been cured of the said ailment. Though he was tested positive for Covid-19 in

the jail, this Court (R.D. Dhanuka & V.G. Bisht, JJ.) did not think it fit to

grant him emergency parole and his petition was rejected with liberty to

apply afresh. In fact on 28th August 2020 the petition was dismissed and

immediately on 17th September 2020 this fresh petition has been filed by the

Petitioner. In our opinion there is no change of circumstances, on the contrary

spread of Covid-19 virus in the entire State of Maharashtra is well within

control. We are satisfied from the report received from the jail authority that

all the precautionary measures are being taken in the jail to prevent the

spread of Covid-19 virus and regularly thermal scanning and rapid antigen

tests are being conducted. Since in the State of Maharashtra life is coming to

normalcy, it would not be appropriate to release the Petitioner who is

convicted of very serious offence punishable under Section 364-A of IPC. In

that view of the matter, for the reasons aforestated, we are not inclined to

entertain this petition. Hence, the writ petition stands rejected.

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




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