Sandhya W/O Sanjay Lokhande vs The State Of Maharashtra
2021 Latest Caselaw 3056 Bom

            Digitally signed
Laxmikant   by Laxmikant G.
            Chandan
G.          Date:
Chandan     2021.02.16
            11:32:08 +0530                                                          cri.wp-553.21.odt

                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                   CRIMINAL WRIT PETITION NO.553 OF 2021


               Sandhya w/o Sanjay Lokhande                       ]
               (Petitioner's brother Sambhaji s/o Shivaji Rokade,]
               Convict No.. 18088 confined at Yerwada Jail, Pune]
               Age : 46 years, Occu : Housewife                  ]
               R/o Near Ujani Canal Krantinagar, Mohol           ]
               Dist Solapur.                                     ]..... Petitioner.

                       Versus

               State of Maharashtra                                  ]
               Through Superintendent                                ]
               Yerwada Central Prison, Pune                          ]..... Respondents.

Mr. Rupesh Jaiswal for the Petitioner.

Mjr. J P Yagnik, 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 :-

"(B) By Writ of Mandamus or any other appropriate writ, order or directions in the like nature to quash and set

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aside the orer of Respondent dated 12.11.2020 (Exhibit- A) and further direct the respondent to release the Petitioner's brother (Sambhaji S/o Shivaji Rokade, Convict No.18088 Yerwada Central Jail) on Emergency Parole Leave.

3 The present Writ Petition is filed by the sister of accused, who has

been convicted by the learned Sessions Judge, Solapur for the offences

punishable under Section 304(I) of the Indian Penal Code and sentenced to

suffer punishment of 10 years imprisonment. The Petitioner's brother is

presently confined in Central Jail, Yerwada, Pune. By this Petition the

Petitioner is seeking directions to the Respondent to release her brother on

emergency parole leave.

4 The learned counsel appearing for the Petitioner submits that the

Petitioner's brother had applied for emergency Covid-19 parole leave, but the

said application of the Petitioner's brother for emergency Covid-19 parole leave

has been rejected by the Respondent on the ground that the convict is released

only once on furlough leave and therefore he is not entitled for emergency

Covid-19 parole leave. The said order dated 12/11/2020 is under challenge in

the present Writ Petition by the Petitioner. It is submitted that the Petitioner is

seeking release of her brother on 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 brother of Petitioner is entitled for emergency

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Covid-19 Parole. It is submitted that the brother of Petitioner has been

convicted under Section 304(I) of the Indian penal Court and he has been

sentenced of 10 years imprisonment.

5 Mr. Rupesh Jaiswal, the learned counsel appearing for the

Petitioner relied upon the Division Bench Judgment of this Court in Kavita w/o

Dilip Baviskar v/s. The State of Maharashtra in Criminal Writ Petition No.571

of 2020 in support of his contention that the ground stated in the impugned

order was wholly unsustainable. He invites our attention to the impugned

order passed by the Respondent-authority and submits that the application has

been rejected by the said jail authority relying upon the Government

Notification dated 08/05/2020 that the convicts, who have been convicted for

the offences which are punishable for more than 7 years and released twice on

parole and such convicts reported back in time on such release, are entitled for

emergency parole. It was therefore submitted that the Writ Petition deserves to

be allowed.

6 On the other hand J P Yagnik, the learned APP appearing for the

Respondent/State vehemently opposed the prayer of the Petitioner. He submits

that now the situation in Yerwada Cetnral Prison has changed substantially. It

was submitted that the number of inmates in the said prison are less than the

capacity. It was further submitted that there is no crowd in the said jail and

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that the authorities have sufficient infrastructure now to immediately take care

of any inmate or staff, who may suffer from Covid-19 virus. He therefore

submits that the Respondent-authority has rightly rejected the application of

the Petitioner's brother for releasing him on emergency Covid-19 parole. On

this basis, it was submitted that the convict i.e. the brother of the Petitioner

could be permitted to apply afresh for grant of emergency Covid-19 parole

leave.

7 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, as also we have perused the record forwarded by the Respondent to

the office of the Public Prosecutor of this Court. The facts and figures stated

therein indicate that in pursuance of release of number of inmates due to

Covide-19 pandemic, now situation in the Yerwada Central Prison, Pune have

changed substantially. There can be no doubt about the fact that the Petitioner

is justified in relying upon the aforesaid judgment of this Court to claim that

the reason assigned in the impugned order is unsustainable. We are in

agreement with the said contention raised on behalf of the Petitioner and find

that the impugned order cannot be sustained.

8           But at the same time, the fact situation on ground as on today,


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cannot be ignored and, therefore, there is substance in the contention raised on

behalf of the learned APP that the request of the Petitioner for grant of

emergency Covid-19 parole leave to her brother needs to be considered afresh.

9 In that view of the matter, the Writ Petition is partly allowed. The

impugned order is quashed and set aside. The convict i.e. the brother of the

Petitioner is granted liberty to apply afresh for grant of emergency Covid-19

parole leave within one week from today. Upon filing such an application, the

Respondent-authority shall decide the same on its own merits, as expeditiously

as possible, however, within a period of two weeks from the date of filing of

such application in accordance with the Prisons (Bombay Furlough and Parole)

Rules, 1959 and keeping view the factors like the extent of spread of Covid-19

virus and conditions in jail.

10 Rule is made absolute to the above extent. The writ petition stands

disposed of accordingly.

[MANISH PITALE, J]                                       [S. S. SHINDE , J]




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