Sartajkhan Mumtajkhan Pathan vs The State Of Maharashtra And Anr
2021 Latest Caselaw 3075 Bom

Sherla V.


                                                                         wp.186.2021(R).doc
           Digitally
           signed by
           Vishwanath      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Vishwanath S. Sherla
S. Sherla  Date:                     CRIMINAL APPELLATE SIDE
           2021.02.16
           19:51:32
           +0530
                               CRIMINAL WRIT PETITION NO.186 OF 2021

                    Sartazkhan Mumtajkhan Pathan                          ... Petitioner
                               Vs.
                    State of Maharashtra & another                    ... Respondents



                   Mr.Aniket Vagal for the Petitioner

                   Mr.Deepak Thakare, Public Prosecutor, for Respondent - State


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

                         JUDGMENT RESERVED ON: FEBRUARY 11, 2021
                        JUDGMENT DELIVERED ON: FEBRUARY 16, 2021

                   JUDGMENT (PER S.S. SHINDE, J.):

1. Rule. Rule made returnable forthwith with the consent of the

learned Counsel appearing for the parties and heard finally.

2. The Petitioner had applied for grant of emergency Covid-19

parole for 45 days in view of the Covid-19 pandemic and the

amendment in the Prisons (Bombay Furlough and Parole) Rules,

1959. However, his application was rejected vide order dated 28 th

September, 2020 passed by Respondent No.2 - Superintendent of

Jail, Nashik Road Central Prison, District Nashik. The ground for

wp.186.2021(R).doc

such rejection, as stated by the petitioner, is that, in the past,

during his stay in the jail, the petitioner was released on parole

only once. The petitioner is a convict undergoing sentence of life

imprisonment. The petitioner has been in jail since last 16 years.

3. Mr.Vagal, learned Counsel appearing for the petitioner,

relied upon the judgments of this Court in Kalyan s/o.

Bansidharrao Renge vs. The State of Maharashtra & another

(Criminal Writ Petition No.ASDB-LDVC-265 of 2020) and Uzair

@ Hujer s/o. Rafiq Shaikh vs. The State of Maharashtra &

Others (Criminal Writ Petition No.2989 of 2020) to contend that

the ground stated in the impugned order was wholly

unsustainable. It was, therefore, submitted that the Writ Petition

deserves to be allowed.

4. On the other hand, the learned Public Prosecutor appearing

for the State, opposed the petition for grant of emergency Covid-

19 parole. It was submitted that now the situation in the Nashik

Road Central Prison, District Nashik, has changed substantially. It

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

less than the capacity. It was submitted that there is no crowd in

the jail and that the authorities have sufficient infrastructure now to

wp.186.2021(R).doc

immediately take care of any inmate or staff, who may suffer from

Covid-19 virus. On this basis, it was submitted that the petitioner

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

19 parole.

5. We have perused the record forwarded by the respondents

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 Covid-19 pandemic, now the situation in

the Nashik Road Central Prison, District Nashik, has changed

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

petitioner is justified in relying upon the aforesaid judgments 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.

6. But at the same time, the fact situation on ground as on

today, 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 needs to be

considered afresh.

wp.186.2021(R).doc

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

The impugned order is quashed and set aside. The petitioner is

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

parole within one week from today. Upon filing such an

application, the respondent No.2 shall decide the same on its own

merits, as expeditiously as possible, however, within two weeks

from the date of such filing of the application in accordance with

the Prisons (Bombay Furlough and Parole) Rules, 1959 and

keeping in view the factors like the extent of spread of Covid-19

virus and conditions in jail.

8. Rule is made absolute to the above extent. The Writ

Petition stands disposed of accordingly.

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