Bombay High Court
Dilshad Hussain Siddiqui vs The State Of Maharashtra on 16 February, 2021
Bench: S.S. Shinde, Manish Pitale
Digitally signed
Laxmikant by Laxmikant
G. Chandan
G. Date:
Chandan 2021.02.16
11:29:49 +0530 cri.wp-321.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.321 OF 2021
Dilshad Hussain Siddiqui ]
Aged 31 yrs. R/o. 703, Bldg. No.6, ]
Qureshi Compound, Behrambaug, ]
Jogeshwari - 400102. ]
(now confined at Nasik Road Central ]
Prison, Nasik Road) ]..... Petitioner.
Versus
1] The State of Maharashtra ]
Through the office of the Public ]
Prosecutor, High Court, Mumbai ]
]
2] The Superintendent, ]
Nasik Road Central Prison, ]
Nasik Road. ]..... Respondents.
Mr. Manas Gavankar for the Petitioner.
Mrs.Aruna S Pai, APP for the Respondent/State.
CORAM : S. S. SHINDE,
MANISH PITALE, JJ
Reserved on : 11th FEBRUARY 2021
Pronounced on: 16th FEBRUARY 2021
JUDGMENT : (PER S S SHINDE, J)
1 Rule. Rule made returnable forthwith and heard finally with the
consent of the learned counsel for the parties.
2 By this Writ Petition the Petitioner seeks the following substantial
reliefs :-
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"(a) this Hon'ble Court be pleased to issue appropriate writ,
order or direction to quash and set aside the impugned
order dated 17-10-2020 passed by Respondent No.2.
(b) This Hon'ble Court be pleased to issue appropriate writ,
order or direction ordering and directing Respondent
No.2 to release the petitioner on emergency parole leave
on usual terms and conditions or on such terms and
conditions as this Hon'ble Court deems fit and proper."
3 The learned counsel appearing for the Petitioner submits that the
Petitioner is seeking emergency parole on the ground of pandemic Covid 19,
and in view of notification dated 08/05/2020 issued by the Government of
Maharashtra, the Petitioner is entitled for emergency Covid-19 Parole. It is
submitted that the Petitioner is an accused in Sessions Case No.800 of 2008
arising out of CR No.111 of 2008 registered with Jogeshwari Police Station for
the offence punishable under Section 394 r/w 397 of the Indian Penal Code
and he has been convicted by the learned Ad-Hoc Additional Sessions Judge,
Mumbai and sentenced him to suffer imprisonment for 7 years and fine of
Rs.10,000/- in default 6 months rigorous imprisonment.
4 The learned counsel for the Petitioner submits that on 14/08/2020
the Petitioner filed application for emergency parole leave on the ground of
outbreak of Covid 19 pandemic, however, the Respondent No.2 by order dated
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20/08/2020 rejected the said application on the ground that the Petitioner had
not paid the fine and his sentence was of 7 years and 6 months and as the
Petitioner had not come on parole/furlough on two earlier occasions, he was
not eligible for grant of emergency parole. It is submitted that thereafter the
Petitioner by his fresh application dated 28/09/2020 applied for emergency
parole leave on the ground of Covid-19, however, by the impugned order dated
17-10-2020 the Respondent No.2 again rejected the said application on the
ground that prison authorities have been taken measures to curb the spread of
Covid-19 in the prison and the prisoners convicted for the offences punishable
under Section 392 to 402 of the Indian Penal Code are not eligible for
parole/furlough leave. It is submitted that the prayer of the Petitioner for
releasing him on emergency parole leave on the aforesaid ground cannot be
rejected by Respondent No.2. The learned counsel appearing for the Petitioner
therefore submits that the present Petition deserves to be allowed.
5 On the other hand Mrs. Aruna S Pai, the learned APP appearing
for the Respondent/State vehemently opposed the prayer of the Petitioner. She
submitted that Respondent No.2 has rightly rejected the earlier application of
the Petitioner for emergency parole leave on the ground that the petitioner had
not paid the fine and the petitioner has been sentenced for 7 years and 6
months and he had not released on parole/furlough on two earlier occasions.
She further submits that by the impugned order dated 17/10/2020 the
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Respondent No.2 has rightly rejected the 2 nd application filed by the Petitioner
for emergency parole leave as in view of the guidelines laid down by
Government Notification dated 08/05/2020 the Petitioner is not entitled to be
released on emergency parole.
6 We have given our due consideration to the rival submissions of
the learned counsel appearing for the parties. With their able assistance we
have perused the pleadings, grounds taken in the Petition and annexures
thereto.
7 The Petitioner is an accused in Sessions Case No.800 of 2008 and
the learned Ad-hoc Sessions Judge, Mumbai convicted the Petitioner for the
offence punishable under Section 394 r/w 397 of the Indian Penal Code and
sentenced him to suffer imprisonment for 7 years and fine of Rs.10,000/- in
default 6 months of rigorous imprisonment. The Petitioner is undergoing his
sentence in Nasik Road Central Prison.
8 As stated herein above, while rejecting the application of the
Petitioner, the Respondent No.2 has observed that the Petitioner was convicted
for an offence punishable under Section 394 r/w 397 of the Indian Penal Code.
Rule 4 (2) of the Prisons (Bombay Furlough and Parole) Rules, 1959 which
forms the basis of rejection of the Petitioner's application reads thus :-
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"4 Eligibility for furlough :-
All Indian prisoners except from following categories
whose annual conduct reports are good shall be eligible
for furlough :-
(1) .........
(2) Prisoners convicted of offences under sections 392 to 402
(both inclusive) of the Indian Penal Code (Prisoners may
be eligible for furlough after completion of stipulated
sentence in the respective Section);
(3) to (21) .........
9 It is has been brought to our notice by the learned APP appearing
for the Respondent/State that in pursuance of release of number of inmates
due to Covid-19 pandemic, now the situation in Nashik Road Central Prison
had changed substantially. Considering the fact situation as on today, we find
substance in the contention raised by the learned APP appearing for the
Respondent/State.
10 In view of the aforesaid Rule 4(2) of the Prisons (Bombay
Furlough and Parole) Rules, 1959 and in view of the aforesaid reasons, the
Petitioner is not entitled for the release on emergency Covid-19 Parole leave
since he has not undergone the sentence awarded under Section 394 r/w 397
of the Indian Penal Code. The reasons recorded by the 2 nd Respondent in the
impugned order while rejecting the application of the Petitioner needs no
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interference. The Respondent No.2 has rightly rejected the application of the
Petitioner for emergency. There is no merit in the Petition. Accordingly the
Petition stands rejected.
[MANISH PITALE, J] [S. S. SHINDE , J]
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