Bombay High Court
Basavraj S/O. Dhondappa Chougule vs The State Of Maharashtra And Anr on 20 January, 2021
Bench: S.S. Shinde, Manish Pitale
Digitally signed
Laxmikant by Laxmikant G.
Chandan
G. Date:
Chandan 2021.01.20
cri.wpst-5111.20.odt
11:44:11 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION STAMP NO.5111 OF 2020
Basavraj s/o Dhondappa Chougule ]
Age Major, Occ - Nil ]
R/o At present at Yerawada ]
Central Prison Pune ]
Convict No.C/18018 ]..... Petitioner.
Versus
1] The State of Maharashtra ]
(Copy to served upon GP of ]
Bombay High Court) ]
]
2] The Superintendent of Jail ]
Yerawada Central Prison ]
Dist. Pune ]..... Respondents.
Mr. Abhishek Kulkarni for the Petitioner.
Mr. J P Yagnik, APP for the Respondent/State.
CORAM : S. S. SHINDE,
MANISH PITALE, JJ
Reserved on : 13th JANUARY 2021
Pronounced on: 20th JANUARY 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 the Writ Petition the Petitioner seeks the following substantial
reliefs :-
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"(C) By issuing appropriate writ or order in the like nature,
the petitioner be released on emergency parole for 45
days in view of notification dated 08-05-2020 issued by
Govt of Maharashtra in the wake of pandemic Covid 19
and order Dtd. 12-11-2020 passed by Respondent No.2
be quashed and set aside.
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 has been convicted under Section 302 of the
Indian penal Court and he has been sentenced for life imprisonment.
4 The learned counsel appearing for the Petitioner invites our
attention to the impugned order dated 12-11-2020 passed by Respondent No. -
2 - the Superintendent of Yerawada Central Prison, Pune and submits that the
Petitioner's 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. However, the jail authority rejected
the application of the Petitioner on the ground that in the present case, the
Petitioner was released only once on parole in past, and therefore, in view of
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the notification dated 08/05/2020, the Petitioner is not entitled to be released
on emergency parole.
5 The learned counsel appearing for the Petitioner pressed into
service unreported judgment dated 27/10/2020 passed by the Division Bench
at Aurangabad of this Court in Criminal Writ Petition No.1340 of 2020 in the
case of Samadhan s/o Laximan Dhandge v/s. The State of Maharashtra and
Anr. (Coram Ravindra V Ghuge and B U Debadwar, JJ) and submitted that the
prayer of the Petitioner for releasing him on emergency parole cannot be
rejected by Respondent No.2. The learned counsel appearing for the Petitioner
therefore submits that the present 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. In support
of the order dated 12/11/2020 passed by Respondent No.2, he submits that
the Respondent No.2 has rightly rejected the application of the Petitioner for
releasing him on emergency Covid-19 parole on the ground that in the past the
Petitioner was released only once on parole and not twice and 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.
7 We have given our due consideration to the rival submissions of
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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 the unreported judgment in the case of Samadhan s/o Laximan
Dhandge (supra).
8 The Petitioner is a life convict and is undergoing sentence in
Yerawada Central Prison, Pune. The issue raised in the present Writ Petition is
no more res-integra. The issue as to whether the convict, whose maximum
sentence is above 7 years imprisonment, is entitled for the emergency parole
irrespective of whether he was released only once on parole in past, has been
considered by the Division Bench at Aurangabad of this Court in the
unreported judgment dated 30/06/2020 in Criminal Writ Petition No.571 of
2020 in the case of Kavita w/o Dilip Baviskar v/s The State of Maharashtra
(Coram : T V Nalawade & Shrikant D Kulkarni,JJ). In the said case this Court
has held that the said condition i.e. whether the convict was released on one
occasion or twice on parole in past and reported back in time, had been
introduced with an intention to see that the convict shall return to jail in case
he is released on emergency parole. It is further held in the said case that
though the Petitioner therein had released only once on parole in the past, he
was entitled to be released on emergency parole.
9 The Government Notification dated 08.05.2020 which forms the
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basis of rejection of the Petitioner's application reads thus :-
"2(c)(ii) For convicted prisoners whose maximum sentence is
above 7 years shall on their application be appropriately
considered for release on emergency parole by
Superintendent of Prison, if the convict has returned to prison
on time on last 2 releases (whether on parole or furlough) for
the period of 45 days or till such time that the State
Government withdraws the Notification issued under the
Epidemics Diseases Act, 1897, whichever is earlier. The initial
period of 45 days shall stand extended periodically in blocks
of 30 days each, till such time that the said Notification is in
force (in the event the said Notification is not issued within
the first 45 days). The convicted prisoners shall report to the
concerned police station within whose jurisdiction they are
residing, once in ever 30 days."
10 In the facts of the present case, as it is observed by Respondent
No.2 in the order dated 12/11/2020, it appears that the Petitioner was earlier
released only once on parole in past and, since he was not released twice on
parole in past, his application for emergency parole has been rejected. There is
no other reason stated in the impugned order for rejecting the prayer of the
Petitioner to release him on emergency parole.
11 In that view of the matter, the impugned order dated 12/11/2020
passed by the 2nd Respondent is required to be quashed and set aside and the
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matter is required to be remanded back to Respondent No.2 for
reconsideration of the Application of the Petitioner for releasing him on
emergency Covide-19 Parole. Hence we pass the following order :-
:ORDER:
1] The Writ Petition is partly allowed.
2] The order dated 12/11/2020 passed by the 2nd Respondent is
quashed and set aside and matter is remanded back to Respondent No.2 for
reconsideration of the Application of the Petitioner for releasing him on
emergency Covide-19 Parole.
3] The Respondent No.2 is directed to re-consider the case of the
Petitioner afresh for release him on emergency Covid-19 Parole as
expeditiously as possible, however, within a period of two weeks from the
receipt of this order and communicate the said decision to the Petitioner.
4] Rule is made absolute in the aforesaid terms..
5] The Writ Petition is disposed of accordingly.
[MANISH PITALE, J] [S. S. SHINDE , J]
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