Bombay High Court
Charansingh S/O. Harinamsingh ... vs The State Of Maharashtra on 23 February, 2021
Bench: S.S. Shinde, Manish Pitale
Digitally signed
Laxmikant by Laxmikant G.
G. Chandan
Date: 2021.02.23
Chandan 11:58:24 +0530
cri.wp-279.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.279 OF 2021
Charansingh s/o Harinamsingh ]
Thakur (Bundele, ]
Confined at Central Jail, Nassik road as ]
Covinct No.11782 ]
Age : 55 years, Occu : Business, ]
R/o Dampuri, Lohgaon, Parbhani ]..... Petitioner.
Versus
State of Maharashtra ]
Through Superintendent ]
Central Prison, Nasik road. ].....Respondent.
Mr. Rupesh Jaiswal for the Petitioner.
Mrs. A S Pai, APP for the Respondent/State.
CORAM : S. S. SHINDE,
MANISH PITALE, JJ
Reserved on : 11th FEBRUARY 2021
Pronounced on: 23rd 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
aside the order of Respondent dated 12.01.2021 and
further direct the respondent to release the Petitioner's
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brother (Bhansingh s/o Harinamsingh Bundele, Confined
at Central Jail Nasik road as Convict No.11782 Yerwada
Central Jail) on Emergency Parole Leave.
3 The present Writ Petition is filed by the brother of accused, who
has been convicted by the learned Sessions Judge, Parbhani for the offence
punishable under Section 376(2)(g) of the Indian Penal Code and sentenced to
10 years imprisonment. The brother of the Petitioner is presently confined in
Central Jail Nasik Road. By this Petition the Petitioner is seeking directions to
the Respondent to release his brother on emergency parole leave.
4 The learned counsel for the Petitioner submits that on 22/09/2020
the brother of the Petitioner filed application for emergency parole leave on the
ground of outbreak of Covid 19 pandemic, however, the Respondent jail
authority by order dated 29/09/2020 rejected the said application on the
ground that the Petitioner's brother was never released on furlough and parole.
The said order has been challenged by the convict in Criminal Writ Petition
Stamp No.5076 of 2020, and this Court by its order dated 07/01/2021
quashed and set aside the said order, and directed the Respondent-Jail
Authority to consider the application of the convict afresh. Pursuant to the
directions given by this Court by order dated 07/01/2021, the respondent jail
authority considered the application of the convict afresh and rejected the
application by its order dated 12.01.2021. The said order dated 12/01/2021 of
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the Respondent-Authorities is impugned in this Writ Petition. It is submitted
that the prayer of the Petitioner's brother for releasing him on emergency
parole leave on the grounds mentioned in the impugned order cannot be
rejected by Respondent as three co-accused were already released on Covid-19
Parole Leave by the order of this Court. It is also submitted that the convict is
in jail since 4 years and 2 months including remission. 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 jail authority has rightly rejected the earlier
application of the Petitioner's brother for emergency parole on the ground that
he is never released on furlough and parole. She further submits that in view
of the directions given by this Court by its order dated 07/01/2021, the
Respondent Jail Authority considered the application of the convict afresh and
by the impugned order dated 12.1.2021 rightly rejected the same. She further
submitted that now the situation in Central Jail Nashik Road has changed
substantially and the number of inmates in the said prison are less than the
capacity. It is further submitted that there is no crowd in the said jail and that
the jail authorities have sufficient infrastructure now to immediately take care
of any inmate or staff, who may suffer from Covind-19 Virus. She, therefore,
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submitted that the present Petition may be dismissed.
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 It is an undisputed fact that the convict i.e. the Petitioner's brother
is an accused in Sessions Case No.121 of 1994 and the learned Ad-hoc Sessions
Judge, Parbhani convicted the Petitioner's brother for the offence punishable
under Section 376(2)(g) of the Indian Penal Code and sentenced him to suffer
imprisonment for 10 years. The Petitioner is undergoing his sentence in Nasik
Road Central Prison.
8 The Authorities have considered the application of the convict,
and on the ground that the Central Jail Nashik has sufficient infrastructure to
take care of inmate/staff who may suffer from Covide-19 virus and, the
Petitioner's brother i.e. Convict No.C-11782 Bhanusingh Harnamsingh Budele
has been convicted for the offences punishable under Section 376(2)(g), 366
of the Indian Penal Code and in view of the provision of Rule 4(12) and 4(13)
of the Prisons (Bombay Furlough and Parole) Rules, 1959, he is not
eligible/entitled for parole/furlough.
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9 Rule 4(12) and 4(13) which forms the basis of rejection of the
application filed by the brother of the Petitioner reads thus :-
"4 Eligibility for furlough :-
All Indian prisoners except from following categories
whose annual conduct reports are good shall be eligible
for furlough :-
(1) to (11) .........
(12) Prisoners who are considered dangerous or have been
involved in serious prison violence like assault, outbreak,
riot, mutiny or escape, or who have been found to be
instigating the serious violation of prison discipline,
smuggling or narcotic and psychotropic substances
including convicted under Narcotic Drugs and
Psychotropic Substances Act, 1985 (61 of 1985), rape or
rape with murder, attempt to rape with murder and
foreigner prisoners (Prisoners may be eligible for
furlough after completion of stipulated sentence in the
respective section)
(13) Who is sentenced for offences such as terrorist crimes,
mutiny against state, kidnapping for ransom (Prisoners
may be eligible for furlough after completion of stipulated
sentence in the respective section)
(14) to (21) ........."
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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
has 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. By order dated 07/01/2021 this Court while disposing of
the Criminal Writ Petition No.5076 of 2020 filed by the convict i.e. the brother
of the Petitioner, direction was given to the authorities to consider the
application of the convict afresh on its own merits. As stated herein above,
thereafter, the Respondent- Authority by the impugned order dated 12.01.2021
again rejected the application of the convict for the reasons which have been
stated herein above. We are of the considered view that the reasons recorded
by the Respondent-Authority while rejecting application of the brother of the
Petitioner are legally sustainable.
10 In view of the aforesaid Rules 4(12) and 4(13) of the Prisons
(Bombay Furlough and Parole) Rules, 1959 and in view of the aforesaid
reasons, the Petitioner's brother is not eligible/entitled for the release on
emergency Covid-19 Parole since he has not undergone the sentence awarded
under Section 376 (2)(g) of the Indian Penal Code and now the fact situation
has been changed substantially. The reasons recorded by the Respondent Jail
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Authority in the impugned order while rejecting the application of the
Petitioner's brother needs no interference. There is no merit in the Petition.
Accordingly the Petition stands rejected. Accordingly Rule stands discharged.
[MANISH PITALE, J] [S. S. SHINDE , J]
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