Bombay High Court
Rajkumar S/O Tukaram Chavhan vs The State Of Maharashtra on 7 January, 2021
Bench: S.S. Shinde, Makarand Subhash Karnik
41.cri.wpst.6856-20.odt
Bhogale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION ST. NO. 6856 OF 2020
Rajkumar S/o Tukaram Chavhan (C-No.17632)
Age:32 Years, Occu: Nil (Convict),
R/o: At present the confnee is in
Yerwaea Central Jail, Pune.
Permanent Aeeress-Bagal Chawl, Kolshet Roae,
Near T.M.C. School, Azae Nagar,
Thane West. .. Petitioner
Versus
State of Maharashtra
Through Superinteneent
Yerwaea Central Prison, Pune. .. Responeent
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Mr. Rupesh A. Jaiswal for the Petitioner.
Mr. S.R. Shinee, APP for the Responeent-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 maee returnable forthwith. Heare fnally with
the consent of learnee counsel appearing for the parties.
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2. This is a Petition flee uneer Article 226 of the Constitution
of Ineia for grant of emergency Covie-19 parole in terms of the
Government Notifcation eatee 08.05.2020. The Petitioner was
convictee on 25.07.2017 for the ofence punishable uneer
Section 302 of the Ineian Penal Coee ('IPC' for short) ane
sentencee to sufer imprisonment for life. The Petitioner has
uneergone more than 6 years ane 1 month of imprisonment.
3. The Petitioner was releasee on furlough leave on
08.06.2020 ane he surreneeree on 07.07.2020 within the time
stipulatee. The Petitioner eie not commit any breach of any
coneition while on furlough.
4. By the impugnee oreer the Petitioner's application for
release on emergency Covie-19 parole is rejectee on the groune
that he eoes not fulfll the coneitions stipulatee by the
Notifcation eatee 08.05.2020 of the State Government. It is
observee that the Petitioner eoes not fulfll the coneition of last
two releases on parole or furlough ane surreneering on time ane
hence the application came to be rejectee.
5. The impugnee oreer is unsustainable in view of the
eecision reneeree by the Division Bench of this Court in the case
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of Kavita w/o. Dilip Baviskar vs. The State of
Maharashtra1. Paragraphs 4, 5 ane 6 are the relevant
paragraphs which reae thus :
"4. In the notifcation eatee 8th May 2020, the State
Government has given eirection to the Jail Authority to see that the
prisoners, who are behine the bars, are releasee on emergency
parole in view of the situation createe by paneemic of Covie-19
virus. In the saie notifcation, there is coneition that the prisoner,
who is otherwise eligible to get furlough or parole leave, can get
the beneft of this notifcation, provieee that in the past he was
releasee from jail on furlough or prole leave on two occasions ane
on all the occasions, he hae surreneeree in time.
5. Due to the aforesaie coneition, peculiar ane strange
circumstance is createe as against prisoners, like present
petitioner, even if he has been actually behine the bar for more
than 11 years. The petitioner was grantee furlough leave only once
ane on that occasion he turnee up in time. He eie not avail
furlough leave on other occasion ane not claiming the furlough
leave on other occasion cannot make him eis-entitlee to claim the
beneft of the aforesaie notifcation. The purpose behine putting
such coneition can be only to ensure that the prisoner will
surreneer in time after expiry of emergency parole perioe. There
cannot be any other intention behine such a coneition.
6. In view of the object behine the aforesaie notifcation ane
the aforesaie circumstances, this Court holes that the responeent
ought to have grantee the beneft of the aforesaie notifcation to
the petitioner. The oreer maee by the responeent against the
petitioner cannot sustain in law. So, the petition is allowee. The
oreer maee by the responeent, eatee 22ne June 2020, is quashee
ane set asiee. The responeent is hereby eirectee to give the
1 Criminal Writ Petition No.571/2020 (Aurangabad Bench)
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beneft of the notifcation eatee 8th May 2020 of the State
Government to the petitioner, with usual terms ane coneitions. It
shoule be eone within seven eays. Rule maee absolute in those
terms."
6. In the light of the jueicial pronouncement in the case of
Kavita w/o. Dilip Baviskar (supra), the application maee by
the Petitioner coule not have been rejectee on the groune
mentionee in the impugnee oreer.
7. Learnee APP vehemently opposee the application ane
submittee that presently there is no over croweing in the prison
as several convicts are alreaey releasee on emergency Covie-19
parole ane the occupancy of the inmates in the jail is much
below the sanctionee strength. Learnee APP woule submit that
all precautionary measures are put in place to ensure the safety
of inmates ane even in the unlikely situation of any inmate being
afectee, aeequate meeical facilities are in place to ensure best
possible meeical treatment to the inmates.
8. In the light of the jueicial pronouncement of this Court in
the case of Kavita w/o. Dilip Baviskar (supra), we hole that
the impugnee oreer is unsustainable. However, in view of the
submissions maee by learnee APP we are of the opinion that the
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application for grant of emergency Covie-19 parole neees to be
consieeree afresh by the competent authority i.e.
Superinteneent, Yerwaea Central Prison, Pune. Hence the
following oreer :
ORDER
(i) The Writ Petition is allowee.
(ii) The impugnee oreer eatee 13/11/2020 at Exhibit 'A'
is quashee ane set asiee.
(iii) The application maee by the Petitioner being
Application No.183 of 2020 eatee 14.10.2020 be
consieeree afresh on its own merits by the Responeent.
(iv) We make it clear that the application shall not be
rejectee on the groune that the Petitioner eoes not fulfll
the coneition of last two releases ane surreneering on time
in terms of the Government Notifcation eatee 08.05.2020.
(v) The application be eecieee as expeeitiously as
possible ane in any event within a perioe of two weeks
from toeay.
41.cri.wpst.6856-20.odt
9. Rule is maee absolute in the above terms.
10. The Writ Petition is eisposee of.
11. This juegment will be eigitally signee by the Personal
Assistant of this Court. All concernee will act on proeuction by
fax or email of a eigitally signee copy of this juegment.
(M.S.KARNIK, J.) (S.S.SHINDE, J.)
Digitally
signed by
Diksha
Diksha Rane
Rane Date:
2021.01.07
12:18:22
+0530
