Sharafat Ali Liyakat Ali vs The State Of Maharashtra
2021 Latest Caselaw 3431 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION
                 CRIMINAL WRIT PETITION NO.183 OF 2021


      Sharafat Ali Liyakat Ali                    ]
      R/o Room No.14, Madani Masjid,              ]
      Bainganwadi, Shivajinagar,                  ]
      Govandi, Mumbai - 400043                    ]
      (At presently lodged in Nashik Road         ]
      Central Prison)                             ]
                                                  ]   .. Petitioner
                           VERSUS

1. The State of Maharashtra                       ]
                                                  ]
2. The Superintendent of Jail,                    ]
   Nashik Road Prison                             ]
                                                  ]      .. Respondents

Mr.Ashish Shastri i/b Mr.Aniket Vagal for the
Petitioner.

Mrs.S.D.Shinde, APP for the Respondent/State.

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

                 RESERVED ON               : 15th FEBRUARY, 2021
                 PRONOUNCED ON             : 23rd 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.

2. By this writ petition, the petitioner has challenged the order dated 18th September, 2020 passed by respondent No.2 whereby

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application for grant of emergency Covid-19 parole for a period of 45 days was rejected.

3. Although it is nowhere stated in the writ petition as to for which offence the petitioner has been convicted and hence, undergoing imprisonment, from the report forwarded by the learned APP, it is gathered that the petitioner stood convicted by judgment and order of the Sessions Court dated 14 th October, 2015, for offence punishable under Section 302 read with Section 34 of the Indian Penal Code. He stood sentenced to suffer imprisonment for life.

4. In view of Covid-19 pandemic and the amendment in the Prisons (Bombay Furlough and Parole) Rules, 1959, the petitioner applied for grant of emergency Covid-19 parole. The application was rejected by the aforesaid impugned order only on the ground that the petitioner had not availed of furlough leave, even once in past.

5. Mr.Shastri, learned counsel appearing for the petitioner, submitted that the only ground stated in the impugned order was unsustainable because the amendment brought in the Prisons (Bombay Furlough and Parole) Rules, 1959 was specifically intended to give relief of emergency Covid-19 parole to convicts like the petitioner and that non availing of facility of furlough leave or parole even once before, could not be a ground for rejecting the application of the petitioner. It was submitted that the application of the petitioner was not considered properly on merits at all by respondent No.2.

6. On the other hand, Mrs.Shinde, learned APP appeared on

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behalf of the respondent/State and opposed the grant of emergency Covid-19 parole. It was submitted that now the situation in the Nashik Road Central Prison, Nashik had 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 had sufficient infrastructure now to immediately take care of any inmate or staff, who may suffers 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.

7. The ground raised on behalf of the petitioner to challenge the impugned order appears to be justified because this Court has already taken a view in case of Kalyan s/o Bansidharrao Renge Vs. The State of Maharashta & Anr. (Criminal Writ Petition No.ASDB-LD- VC 265 OF 2020) and Uzair @ Hujer S/o Rafiq Shaikh Vs. The State of Maharashtra & Ors. (Criminal Writ Petition No.2989 of 2020) that non availing of parole or furlough leave, even once earlier, cannot be a ground to reject the application for grant of emergency Covid-19 parole. To that extent, the case of the petitioner is clearly covered in his favour.

8. Yet, the facts and figures stated in the report forwarded by the learned APP show that now the situation at the Nashik Road Central Prison has changed substantially. The number of inmates in the jail are less than the capacity of the jail, indicating that there is no over crowding as of now. It is also reported that the inmates presently are not infected by Covid-19 virus and that the regular rapid antigen tests are being undertaken. We are of the opinion that the ground

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situation in the light of the said report cannot be ignored and that there is substance in the contention raised by the learned APP that the request of the petitioner for grant of emergency Covid-19 parole can be considered afresh.

9. In view of the above, 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. In case, such an application is submitted by the petitioner, respondent No.2 shall dispose of the same, within two weeks of submission of such application, in the light of the circumstances prevailing as on today and in terms of the Prisons (Bombay Furlough and Parole) Rules, 1959.

10. The writ petition is disposed of in the above terms. Rule is discharged accordingly.

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




M.M.Salgaonkar