Bombay High Court
Bhanisingh S/O Harinamsingh ... vs The State Of Maharashtra on 7 January, 2021
Bench: S.S. Shinde, Makarand Subhash Karnik
48.cri.wpst.5076-20.odt
Bhogale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION ST. NO. 5076 OF 2020
Bhanisingh S/o Harinamsingh Bundele,
Age:55 Years, Occu: Convict,
R/o: Dulhan Ladies Emporium, Yashwant Nagar,
Khanapur Phata, Basmat Road, Parbhani.
At present Confned in Central Prison,
Nasik Road as convict No.11782. .. Petitioner
Versus
State of Maharashtra
Through Superintendent
Central Prison, Nasik Road. .. Respondent
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Mr. Rupesh A. Jaiswal for the Petitioner.
Mrs. S.D. Shinde, APP for the Respondent-State.
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CORAM : S.S.SHINDE &
M.S.KARNIK, JJ.
RESERVED ON : JANUARY 4, 2021
PRONOUNCED ON : JANUARY 7, 2021
JUDGMENT : (PER M.S. KARNIK, J.)
Rule. Rule is made returnable forthwith. Heard fnally with
the consent of learned counsel appearing for the parties.
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2. The Petitioner by this Petition fled under Article 226 of the
Constitution of India for grant of emergency Covid-19 parole in
terms of the Government Notifcation dated 08.05.2020. The
Petitioner was convicted on 22.03.1999 for the ofence
punishable under Section 376(2)(g) of the Indian Penal Code
('IPC' for short) and sentenced to sufer imprisonment for 10
years. The Petitioner has undergone the period of 5 years and 2
months approximately of actual imprisonment.
3. The application made by the Petitioner was rejected on the
ground that the Petitioner was never released on furlough or
parole and therefore he does not fulfll the condition of last two
releases and surrendering on time in terms of the Government
Notifcation dated 08.05.2020.
4. The impugned order is unsustainable in view of the
decision rendered by the Division Bench of this Court in the case
of Kavita w/o. Dilip Baviskar vs. The State of
Maharashtra1. Paragraphs 4, 5 and 6 are the relevant
paragraphs which read thus :
"4. In the notifcation dated 8th May 2020, the State
Government has given direction to the Jail Authority to see that the
prisoners, who are behind the bars, are released on emergency
1 Criminal Writ Petition No.571/2020 (Aurangabad Bench)
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parole in view of the situation created by pandemic of Covid-19
virus. In the said notifcation, there is condition that the prisoner,
who is otherwise eligible to get furlough or parole leave, can get
the beneft of this notifcation, provided that in the past he was
released from jail on furlough or prole leave on two occasions and
on all the occasions, he had surrendered in time.
5. Due to the aforesaid condition, peculiar and strange
circumstance is created as against prisoners, like present
petitioner, even if he has been actually behind the bar for more
than 11 years. The petitioner was granted furlough leave only once
and on that occasion he turned up in time. He did not avail
furlough leave on other occasion and not claiming the furlough
leave on other occasion cannot make him dis-entitled to claim the
beneft of the aforesaid notifcation. The purpose behind putting
such condition can be only to ensure that the prisoner will
surrender in time after expiry of emergency parole period. There
cannot be any other intention behind such a condition.
6. In view of the object behind the aforesaid notifcation and
the aforesaid circumstances, this Court holds that the respondent
ought to have granted the beneft of the aforesaid notifcation to
the petitioner. The order made by the respondent against the
petitioner cannot sustain in law. So, the petition is allowed. The
order made by the respondent, dated 22nd June 2020, is quashed
and set aside. The respondent is hereby directed to give the
beneft of the notifcation dated 8th May 2020 of the State
Government to the petitioner, with usual terms and conditions. It
should be done within seven days. Rule made absolute in those
terms."
5. In the light of the judicial pronouncement in the case of
Kavita w/o. Dilip Baviskar (supra), the application made by
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the Petitioner could not have been rejected on the ground
mentioned in the impugned order.
6. Learned APP vehemently opposed the application and
submitted that presently there is no over crowding in the prison
as several convicts are already released on emergency Covid-19
parole and the occupancy of the inmates in the jail is much
below the sanctioned strength. Learned APP would submit that
all precautionary measures are put in place to ensure the safety
of inmates and even in the unlikely situation of any inmate being
afected, adequate medical facilities are in place to ensure best
possible medical treatment to the inmates.
7. In the light of the judicial pronouncement of this Court in
the case of Kavita w/o. Dilip Baviskar (supra), we hold that
the impugned order is unsustainable. However, in view of the
submissions made by learned APP we are of the opinion that the
application for grant of emergency Covid-19 parole needs to be
considered afresh by the competent authority i.e.
Superintendent, Central Prison, Nasik Road. Hence the following
order :
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ORDER
(i) The Writ Petition is allowed.
(ii) The impugned order dated 29/09/2020 at Exhibit 'A'
is quashed and set aside.
(iii) The application made by the Petitioner dated
22.09.2020 be considered afresh on its own merits by the
Respondent.
(iv) We make it clear that the application shall not be
rejected on the ground that the Petitioner does not fulfll
the condition of last two releases and surrendering on time
in terms of the Government Notifcation dated 08.05.2020.
(v) The application be decided as expeditiously as
possible and in any event within a period of two weeks
from today.
8. Rule is made absolute in the above terms.
9. The Writ Petition is disposed of.
48.cri.wpst.5076-20.odt
10. This judgment will be digitally signed by the Personal
Assistant of this Court. All concerned will act on production by
fax or email of a digitally signed copy of this judgment.
(M.S.KARNIK, J.) (S.S.SHINDE, J.)
Digitally
signed by
Diksha
Diksha Rane
Rane Date:
2021.01.07
14:06:22
+0530
