Dinesh S/O Ashokrao Athawale vs Superintendent Of Jail Central ...
2021 Latest Caselaw 8938 Bom

 Judgment                                 1                                  wp390.21.odt



                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                            NAGPUR BENCH, NAGPUR.


                        CRIMINAL WRIT PETITION NO. 390/2021


          Dinesh S/o Ashokrao Athawale,
          Near Samaj Mandir, Mahajanpura,
          Amravati 444 605
          (C-5669 - Presently At Central Prison,
          Amravati)

                                                                    .... PETITIONER

                                    // VERSUS //

          Superintendent of Jail,
          Central Prison, Amravati,
          District Amravati

                                                                   .... RESPONDENT


  *******************************************************************
      Ms. R.G. Zarbade, Adv h/f Shri S.D. Chande, Adv for the petitioner
                   Ms. N.R. Tripathi, APP for the respondent
  *******************************************************************

                           CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

JULY 09, 2021

JUDGMENT : (PER:- AMIT B. BORKAR, J.)

1] Heard.

 2]               RULE. Rule made returnable forthwith.



 3]               By this writ petition under Articles 226 & 227 of the

Constitution of India, the petitioner takes exception to the order dated

Judgment 2 wp390.21.odt

27/02/2021 passed by the respondent thereby rejecting the application of

the petitioner for emergency parole leave for 45 days.

4] The petitioner is convicted in Sessions Trial No. 302/2014 for

the offences punishable under Sections 302, 147, 148, 149 and 307 of the

Indian Penal Code and is undergoing imprisonment for life. On 20/02/2021,

the petitioner filed an application seeking his release on emergency parole

leave for 45 days which is rejected by the impugned order dated 27/02/2021

on the ground that the petitioner is not eligible for release on emergency

parole as the petitioner has been released only once previously. The

petitioner has therefore challenged the said order by way of this writ

petition.

5] This Court on 28/05/2021 issued notice to the respondent. The

respondent has filed reply stating that the Prison Authorities have taken

necessary precautions in the prison. It is also stated that the petitioner was

released on furlough leave in the year 2020 but has not availed parole leave

any time before filing of the present petition. It is stated that for being

eligible for release on emergency parole, a prisoner needs to surrender on

time on last two occasions earlier, and therefore the petitioner is not eligible

for being released on emergency parole.

6] We have carefully considered the impugned order. In our

opinion, the point involved in the present writ petition is no longer res-

integra in view of the judgment of this Court in Criminal Writ Petition-ASDB-

Judgment 3 wp390.21.odt

LD-VC NO. 65/2020 (Milind Ashok Patil & ors. vs. State of Maharashtra &

ors.). This Court while disposing of the said writ petition considered Clause

8(ii) of the High Power Committee's decision and after detailed analysis of

the relevant provisions, in para nos. 13 and 15 observed thus :-

"13. Thus, it is clear that the said amended provision is made for short period and is brought into existence for main object of reducing the overcrowding in the jail. However, while releasing the convicts on emergency parole in view of the declaration of epidemic under the Epidemic Diseases Act, 1897, it is also required to ensure that the said benefit cannot be extended to the prisoners likely to commit offence in case of temporary release i.e. habitual offenders or likelihood of absconding of such accused and in such case the emergency parole can be rejected. For ensuring this, it is provided that the convicts whose maximum sentence is above 7 years shall on their application be appropriately considered for release on emergency parole by the Superintendent of Prison, if the convict has returned to prison on time on last 2 releases (whether on parole or furlough). Therefore, the object while granting the emergency parole is to see that overcrowding in prison is reduced. However, at the same time, it is to ensure that the habitual offender or prisoners who are likely to abscond are deprived of emergency parole and therefore, the aforesaid amended rule was brought into effect. However, if such convicts are never released either on furlough or parole previously or not released on 2 occasions either on furlough or parole and therefore, there was no occasion for them to return back within time on 2 occasions and therefore, not entitled for said benefit of emergency parole, such literal interpretation may lead to absurdity and in that event, there is no occasion to invoke condition imposed under the said amended Parole Rule.

Judgment 4 wp390.21.odt

15. Thus, it is clear that the condition mentioned in the amended clause (C)(ii) of convict returning back on time on last 2 releases will be applicable only if the convict is released on 2 occasions either on furlough leave or parole leave or their applications are rejected on the ground that they are habitual offenders or likely to abscond. In this behalf, it is significant to note that the difference between Clause (C)(i) and (ii). The clause (c) (i) of the amendment which is applicable to convicted prisoners whose maximum punishment is 7 years or less provides that "application shall be favourably considered"; whereas clause (C) (ii) which is applicable to the prisoners whose maximum sentence is above 7 years provides that "application shall be appropriately considered". To ensure that such convicts should not abscond, the said amended provision stipulates that once in every 30 days, the convicted prisoners shall report to the concerned police station within whose jurisdiction they are residing. If the convicts are not released on 2 occasions either on furlough or parole and/or their previous applications are not rejected either on the ground that they are habitual offenders or likely to abscond then the Authorities can still consider their applications for release on emergency parole. However, we make it clear that if the convicts are released on 2 occasions or on 1 occasion, either on parole or furlough previously and they are late in surrendering then they are not entitled for the benefit of the emergency parole. It is further clarified that the Authorities can impose suitable stringent conditions on the convicts who were never released on parole or furlough or released on 1 occasion and returned back within time, if they are otherwise entitled for the benefit of emergency parole."

  Judgment                                    5                                wp390.21.odt



 7]               In view of the aforesaid judgment, we are satisfied that the

petitioner is eligible for release on emergency parole even if the petitioner

has not been released twice on earlier occasions.

 8]               Hence, the following order:-



                  (a)             The impugned order dated 27/02/2021 passed by

                  the respondent is quashed and set aside.



                  (b)             The petitioner is entitled to the benefit of

notification dated 08/05/2020 for release on emergency

Covid-19 parole and accordingly he be released on emergency

Covid-19 parole leave on such terms and conditions as the

respondent deems fit and proper in terms of the said

notification.

Rule is made absolute in the above terms.

                   (JUDGE)                                   (JUDGE)




 ANSARI