Bombay High Court
Subhash Mhasuji Nikalje vs The State Of Maharashtra And ... on 30 January, 2021
Bench: R.V. Ghuge, B. U. Debadwar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.50 OF 2021
Subhash s/o Mhasuji Nikalje
Age: 60 years, Occu: Nil
Convict No.7315
R/o At Present in Central Prison, Aurangabad
Dist. Aurangabad Petitioner
versus
1 The State of Maharashtra,
through Secretary, Home Department,
Mantralaya, Mumbai
2 The Dy. Inspector General of
Central Prison, Aurangabad
3 The Superintendent of
Central Prison, Aurangabad Respondents.
Smt. B.B. Gunjal, advocate for the petitioner
Mr. S.G. Sangle, Assistant Public Prosecutor for respondent
Nos.1 to 3.
...
CORAM: RAVINDRA V. GHUGE & B. U. DEBADWAR, JJ
Date: 30.1.2021
PER COURT :-
1 The applicant is a convict and is sentenced to suffer life
imprisonment under section 302 and 498-A of the Indian Penal
Code. He is said to be 60 years of age and has already spent
about 10 years by way of suffering the sentence.
2 His application for emergency parole has been rejected
under Rule 19(1)(C) of the Maharashtra Prisons (Parole and
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Furlough) Rules, 1959, vide the impugned order dated
29.9.2020, passed by the In-charge Jail Superintendent, on the
sole ground that, he has not availed of parole or furlough leave
on a minimum of two occasions, previously.
3 The learned Prosecutor has opposed the petition and has
contended that there is no valid reason to grant emergency
parole to the petitioner. He, however, submits on instructions
from a representative of the Central Prison, Aurangabad that,
the total occupancy of the said prison is 1109 and presently,
there are 1223 inmates.
4 This Court has already laid down the law that the failure on
the part of a convict in availing of furlough or parole leave on a
minimum of two occasions, would not dis-entitle him from
seeking emergency parole under Rule 19(1)(C).
5 We have considered the recommendations of the High
Power Committee, chaired by Honourable Shri Justice Amjad
Sayed and the State Notification dated 8.5.2020. The
recommendations and the emergency Parole Rules are aimed at
de-congesting the prisons, so as to prevent the outbreak of
Covid-19. Aurangabad Central Prison already appears to have
inmates in excess of its occupancy.
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6 The learned Prosecutor submits, on instructions that, there
is no other legal impediment to grant parole to the petitioner,
save and except the reason mentioned by the Jail
Superintendent in the impugned order which in our view is
unsustainable.
7 Considering the above, this criminal Writ Petition is
allowed.
The impugned order dated 29.9.2020 stands quashed and
set aside and the present petitioner shall be granted parole for a
period of 45 days, by following the due procedure.
8 At this juncture, the learned advocate for the petitioner
submits that he has nobody near and dear to take care of him
and it appears that his sons and daughters etc. are not willing to
stand surety for him. Since he is handicapped on account of
these reasons, he prays to be released on emergency parole on
furnishing a PR bond in the sum of Rs.5,000/- keeping in view
the law laid down by the learned Full Bench of this Court in
paragraph Nos.20, 21, 22 and 23 in Dipak Sudhakar
Wakalekar versus State of Maharashtra & Ors 2011(2)
Bom.C.R. (Cri.)586.
9 The learned Prosecutor submits, on instructions that, this
Court should not get into the exercise of assessing the reasons
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cited by the convict across the bar. Even the learned Full Bench
had left it to the authorities to make such assessment and
exercise discretion as set out in paragraph 22 in Dipak
Sudhakar's (Supra).
10 Considering the above, we permit the petitioner to file an
application before the Superintendent of Prison, Aurangabad
Central Jail setting out the reasons in support of his request for
furnishing a PR bond in the sum of Rs.5,000/-. The authorities
would consider the same by exercising discretion in the light of
the Judgment of the learned Full Bench in Dipak Sudhakar's
(Supra). Any decision on such application shall be arrived at on
or before 6.2.2021, provided the petitioner will furnish his
application on or before 2.2.2021.
(B. U. DEBADWAR, J) ( RAVINDRA V. GHUGE, J )
vbd
