Bombay High Court
Nigonda Hanmant Birajdar vs The State Of Maharashtra And Ors on 16 February, 2021
Bench: S.S. Shinde, Manish Pitale
1/6 Judgment WP-385-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 385 OF 2021
Nigonda Hanmant Birajdar ]
Aged 32 years, Occu : Nil, ]
R/o At-Jangalgi, Post-Shirnandgi, ]
Taluka-Mangalwedha, ]
District Solapur. ] .. Petitioner
VERSUS
1. The State of Maharashtra, ]
]
2. The Director General of Prisons, ]
MS, Mumbai ]
]
3 The Superintendent of Prisons, ]
Kolhapur Central Prison, ]
Kalamba, Kolhapur. ] .. Respondents
Ms.Madhavi Ayyapan i/b Talekar & Associates for
the Petitioner.
Mr.J.P.Yagnik, APP for the Respondent/State.
CORAM : S.S.SHINDE &
MANISH PITALE, JJ.
RESERVED ON : 4th FEBRUARY, 2021
PRONOUNCED ON : 16th 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.
M.M.Salgaonkar
2/6 Judgment WP-385-21.doc
2. The petitioner had filed the present writ petition, initially for a
direction to respondent No.3, the Superintendent of Prisons,
Kolhapur Central Prison to decide his application for grant of
emergency parole in view of certain judgments and orders passed by
this Court. A prayer was also made for a direction to the
respondents to release the petitioner on emergency parole. During
the pendency of the writ petition, by an order dated 22 nd October,
2020, respondent No.3 rejected the application for grant of
emergency Covid-19 parole. Accordingly, the petition was amended
to raise grounds to challenge the said order.
3. The petitioner was convicted by the judgment and order dated
23rd November, 2017 passed by the Sessions Court at Pandharpur
under Sections 143, 147, 148, 323, 302, 504, 506 read with Section
149 of the Indian Penal Code and Sections 3 and 25 of the Indian
Arms Act. The petitioner was arrested during the course of
investigation and he is in custody in pursuance of his conviction.
4. The petitioner was granted furlough leave for a period of 22
days, after which he returned back to custody within time.
5. In pursuance of the amendment in the Prisons (Bombay
Furlough and Parole) Rules, 1959, the petitioner submitted an
application for grant of emergency parole on the ground of Covid-19
pandemic and the overcrowding in the Kolhapur Central Prison. As
noted above, during the pendency of the present writ petition, on
22nd October, 2020, respondent No.3 passed the impugned order
rejecting the application filed by the petitioner.
M.M.Salgaonkar
3/6 Judgment WP-385-21.doc
6. Ms.Ayyapan, learned counsel appearing for the petitioner,
submitted that the impugned order was wholly unsustainable
because the only reason stated therein was that since the petitioner
had not availed of the furlough/parole leave twice before, he was
ineligible for grant of emergency parole due to Covid-19 pandemic.
Attention of this Court was invited to the judgments and orders
passed by the Division Bench of this Court wherein it was
categorically held that merely because the convict had not availed of
furlough/parole leave twice earlier, he cannot be deprived of
emergency parole due to Covid-19 pandemic. It was further
submitted on behalf of the petitioner that the Kolhapur Central
Prison was overcrowded wherein number of staff and inmates were
infected by Covid-19 virus, due to which it is imperative that the
impugned order be set aside and the prayer for grant of emergency
parole to the petitioner needs to be allowed.
7. On the other hand, Mr.J.P.Yagnik, learned APP submitted that
although the grounds stated in the impugned order could not be
sustained in view of specific pronouncement of this Court holding
that emergency parole could not be denied to a convict merely on
the ground that he had not availed of furlough/parole atleast twice
earlier, yet it was submitted that now the situation in various
prisons, including the Kolhapur Central Prison had changed
substantially, in view of the improvement of the situation pertaining
to Covid-19 pandemic, as also the fact that the number of inmates in
the prison had reduced. It was further submitted that in the report
received from respondent No.3, which reiterated the facts and
figures stated in the impugned order, it was clearly stated that none
M.M.Salgaonkar
4/6 Judgment WP-385-21.doc
of the inmates in the Kolhapur Central Prison are suffering from
Covid-19 virus and that sufficient measures had been adopted to
ensure that neither the staff nor the inmates suffer from the
infection and even if they did so, prompt remedial measures were
taken. On this basis, it was submitted that even if the impugned
order was unsustainable on the ground on which it has issued,
prayer for grant of emergency parole of the petitioner needs to be
considered afresh, in the light of the present circumstances
pertaining to Covid-19 pandemic.
8. We have heard the learned counsel appearing for the rival
parties. Since the learned APP has conceded that there are already
judgments of this Court interpreting the amendment in the Prisons
(Bombay Furlogh and Parole) Rules, 1959 whereby the provision for
grant of emergency Covid-19 was incorporated, we do not propose
to discuss in detail the grounds of challenge raised on behalf of the
petitioner, on the basis of the said judgments. Therefore, it becomes
clear that ground stated in the impugned order dated 22 nd October,
2020 while rejecting the application of the petitioner, is
unsustainable. The application for grant of emergency parole on the
ground of Covid-19 pandemic could not have been rejected merely
because the petitioner had availed of furlough leave only once
before. Therefore, to that extent the impugned order is found to be
unsustainable.
9. At the same time the impugned order dated 22nd October,
2020 as well as the report submitted by respondent No.3 to the
office of the Public Prosecutor, show that the number of inmates in
Kolhapur Central Prison stood reduced. It is specifically stated that
M.M.Salgaonkar
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none of the inmates in the prison were suffering from Covid-19 virus
infection at that point in time. It is also stated that appropriate
remedial measures were taken where required and that the
emergency situation had been diluted to a large extent.
10. Today, we are in February, 2021 and the effect of the Covid-19
pandemic, as of now, appears to have diminished in its intensity and
the present situation pertaining to the pandemic and the ground
realities pertaining to the same in the Kolhapur Central Prison
become an important factor for considering the prayer of the
petitioner.
11. In view of the above, we are of the opinion that even if the
impugned order is unsustainable, the present writ petition can be
only partly allowed, so that the prayer for grant of emergency parole
due to Covid-19 pandemic, raised on behalf of the petitioner can be
considered on the basis of the situation prevailing today.
12. Accordingly, the writ petition is partly allowed. The impugned
order dated 22nd October, 2020 is quashed and set aside.
13. The petitioner is granted liberty to move an application for
grant of emergency parole on the ground of Covid-19 pandemic
before respondent No.3, within a period of two weeks from today.
Respondent No.3 is directed to immediately decide such application,
if moved by the petitioner, at the earliest and in any case, within a
period of two weeks of such application being submitted by the
petitioner.
M.M.Salgaonkar
6/6 Judgment WP-385-21.doc
14. Rule is made absolute in above terms. The writ petition
stands disposed of.
(MANISH PITALE, J.) (S.S.SHINDE, J.)
M.M.Salgaonkar
