Futermal Kapoorji Borana vs The State Of Maharashtra And Anr
2021 Latest Caselaw 8965 Bom

                                                      CRIWP2386-2021.DOC
                                                                          Santosh

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION
                     WRIT PETITION NO.2386 OF 2021

     Futermal Kapoorji Borana
     Age 42 years, Occu. Prisoner Convict
     No.C-5163, At present lodged in Central
     Prison, Nashik, permanent address :
     Hanuman ji ki gali, At post Bankali,
     Tehsil : Sumerpur, Dist. Pali
     (Rajashthan)                                              ...Petitioner

                     Versus
1. The State of Maharashtra
   Through its Principal Secretary, Home
   Department, Mantralaya, Mumbai - 32.
2. The Divsisional Commissioner,
   Nashik Division, Nashik,
   Offce at Commissioner Offcer Nashik
   Road, Nashi.
3. The Deputy Inspector General of Police
   (Prison), Central Division, Central
   Prison, Harsul, Aurangabad
4. The Superintendent of Prison, Central
   Prison, Nashik Road, Nashik                            ...Respondents


Mr. M. M. Choudhari, for the Petitioner.
Mr. S. R. Shinde, APP for the State/Respondent no.1.


                                        CORAM: S. S. SHINDE &
                                               N. J. JAMADAR, JJ.

RESERVED ON: 6th JULY, 2021.

PRONOUNCED ON: 9th JULY, 2021.

JUDGMENT:- PER : N. J. JAMADAR, J.

1. Rule. Rule made returnable forthwith and, with the

consent of the Counsels for the parties, heard fnally.

CRIWP2386-2021.DOC

2. By this petition under Article 226 of the Constitution of

India, the petitioner - convict assails the order dated 17 th May,

2021, passed by the Superintendent, Nashik Road Central

Prison - respondent no.4, whereby the application of the

petitioner for release on emergency parole, in the wake of Covid-

19 Pandemic, in accordance with the Rule 19(1)(c)(ii) of The

Prisons (Bombay Furlough and Parole) Rules, 1959 ("the Rules,

1959"), came to be rejected.

3. The petition presents second round of litigation. Initially,

application of the petitioner for emergency parole was rejected

by respondent no.4 by order dated 1st December, 2020. Two

grounds were ascribed. First, the petitioner, having been

convicted for the offences punishable under Sections 395 and

396 of the Indian Penal Code, 1860 ("the Penal Code"), was not

entitled to be released on emergency parole in view of the

interdict contained in Rule 4(2) of the Rules, 1959. Second, the

petitioner had not returned to prison, on time, when he was

released on parole leave, on the previous occasions.

4. The petitioner assailed the aforesaid order in Criminal Writ

Petition No.444 of 2021. This Court by order dated 8 th March,

2021, found no substance in the petition and it was dismissed.

CRIWP2386-2021.DOC

5. An application, being Interim Application No.1338 of 2021,

was preferred by the petitioner seeking recall of the said

judgment and order dated 8th March, 2021. Since the prayer in

the application was in the nature of review, this Court declined

to entertain the application. It was, however, clarifed that the

dismissal of the said application and above numbered writ

petition would not come in the way of the petitioner - applicant

moving a fresh application before the concerned authority for

grant of emergency parole. Armed with the said liberty the

petitioner again preferred an application for emergency parole,

on 3rd May, 2021.

6. By the impugned order, the application came to be rejected

on the following grounds.

"4. As per Government of Maharashtra Notifcation dt.08.05.2020 u/s.19(1)(c)(c) & (2) only that prisoners can get 45 days emergency parole leave, those who have more than 7 years imprisonment and those who have gone on leave twice (furlough or parole) and surrender on duet date. You were released on parole leave in the year 2005 and you surrendered 07 days late, in the year 2007 and you surrendered 203 days late, in the year 2009, you surrendered on due date, in the year 2012, you surrendered 01 day late, in the year 2013, you surrendered 04 days late, in the year 2015, you surrendered on due date, in the year 2017, you surrendered on due date.

5. You are undergoing Life sentence in sections 396, 395, 449 I.P.C. As per Maharashtra Prison Manual 1979 & as per Government of Maharashtra Notifcation dt.16.04.2018 u/s.4(2) the prisoners those who are convicted under Sections 392 IPC to 402 IPC are not liable for leave. Hence, your request for to release on emergency parole leave is rejected."

CRIWP2386-2021.DOC

7. Being aggrieved, the petitioner has again invoked the writ

jurisdiction of this Court.

8. We have heard Mr. Choudhari, the learned Counsel for the

petitioner and Mr. Shinde, the learned APP for the

State/Respondents, at some length.

9. Mr. Choudhari, the learned Counsel for the petitioner

would urge that respondent no.4 fell in error in rejecting the

application for emergency parole on the very same ground on

which the earlier request was negatived by order dated 2 nd

December, 2020, (which was the subject matter of the challenge

in Writ Petition No.444 of 2021), despite the direction by this

Court in the order dated 29th March, 2021, in Interim

Application No.1338 of 2021, to consider the said prayer on its

own merits. Mr. Choudhari made an earnest endeavour to

demonstrate that both the grounds, on which the request for

release on emergency parole is turned down, are legally

unsustainable. The fact that the petitioner had reported

late by a few days, when he was released on parole, on the

previous occasions, could not have been arrayed

against the petitioner as the period of remission was

correspondingly reduced. Even otherwise, that cannot be

a justifable ground to refuse emergency parole,

CRIWP2386-2021.DOC

having regard to the period of actual imprisonment undergone

by the petitioner, urged Mr. Choudhari.

10. The very fact that the petitioner was released on parole, in

the past, on multiple occasions, renders the decision to deny

parole, on the ground that the petitioner has been convicted for

the offences punishable under Sections 395 and 396 of the

Penal Code, vulnerable, canvassed Mr. Choudhari. In order to

lend support to this submission, Mr. Choudhari placed reliance

on a judgment of this Court in the case of Santosh Mahadeo

Shinde vs. The State of Maharashtra [Criminal Writ Petition (ST)

NO.4216 of 2020], wherein this Court found that the denial of

the beneft of the amended Rule 19(1)(c) of the Rules, 1959, to a

prisoner, who was convicted for the offence punishable under

Section 394 of the Penal Code, on the strength of Rule 4(2) of

the Rules, 1959, would be unfair and unreasonable. Reliance

was also placed on another judgment of this Court in the case

of Babasaheb Kondiba Bhosle vs. The State of Maharashtra

[Criminal Writ Petition/LDVC/164 of 2020].

11. In opposition to this, Mr. Shinde, the learned APP invited

the attention of the Court to the judgment in Writ Petition

No.444 of 2021, dated 8th March, 2021, especially the

observations in paragraphs 8 and 9 thereof. It was urged that

CRIWP2386-2021.DOC

both the grounds, on which the earlier application for release on

emergency parole was rejected, were found justifable by this

Court. In the circumstances, according to Mr. Shinde, the

instant petition does not deserve to be entertained, despite

afresh rejection of an identical prayer.

12. In view of the exigency of the situation which arose on

account of Covid-19 Pandemic and decongest the prisons as the

threat of spread of contagion amongst the prisoners was

imminent, the Prions Rules, 1959, were amended by the State of

Maharashtra. Rule 19 providing for release of the prisoners on

emergency parole came to be amended by adding Clause (C),

which reads as under;

"(C) On declaration of epidemic under the Epidemic Diseases Act, 1897, by State Government:

(i) For convicted Prisoners whose maximum punishment is 7 years or less, on their application shall be favourably considered for release on emergency parole by the Superintendent of Prison for a period of 45 days or till such time that the State Government withdraws the Notifcation 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 Notifcation is in force (in the event the said Notifcation is not issued within the frst 45 days.) The convicted prisoners shall report to the concerned police station within whose jurisdiction they are residing once in every 30 days.

(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

CRIWP2386-2021.DOC

on parole or furlough), for the period of 45 days or till such time that the State Government withdraws the Notifcation 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 Notifcation is in force (in the event the said Notifcation is not issued within the frst 45 days). The convicted prisoners shall report to the concerned police station within whose jurisdiction they are residing, once in every 30 days.

Provided that the aforesaid directions shall not apply to convicted prisoners convicted for serious economic offences or bank scams or offences under Special Acts (other than IPC) like MCOC, PMLA, MPID, NDPS, UAPA etc. (which provide for additional restrictions on grant of bail in addition to those under the Code of Criminal Procedure, 1973 (2 of 1974) and also presently to foreign nationals and prisoners having their place of residence out of the State of Maharashtra."

13. For the purpose of release on emergency parole, the

convicted prisoners have been divided in two classes. One, the

convicts, who have been sentenced to suffer imprisonment upto

7 years or less. Two, the convicts, who have been sentenced to

suffer imprisonment above 7 years. In the latter case, there is

an additional condition that the convict should have returned to

prison on time on two previous releases, either on furlough or

parole. The proviso to Clause (C) disentitles certain classes of

prisoners from the beneft thereof, having regarding to the

seriousness and gravity of the offences, especially under the

Special Acts.

CRIWP2386-2021.DOC

14. In the instant case, the report submitted by respondent

no.4 indicates that as of 30th June, 2021, the petitioner has

undergone 19 years 1 month actual imprisonment. It further

indicates that, in the past, the petitioner was released on seven

occasions. On the last two occasions, the petitioner returned to

person on time. Indeed, the petitioner had returned late on four

occasions before the year 2015. However, on the last two

occasions i.e. in the year 2015 and 2017, the petitioner did

return on time. In terms of Sub-clause (ii) of Clause (C) of

amended Rule 19(1) of the Rules, 1959, the propensity of the

convict not returning to the prison on time is required to be

judged on the basis of the conduct of the convict on immediately

preceding two releases. The authorities, in our view, were not

justifed in taking into account the delay in returning to prison

on occasions previous to the last two releases. The conduct

proximate to the time of release to judge the possible future

conduct of the convict has a rationals. Thus, the rejection of

the request on the basis of late returning to prison, beyond the

immediate past two releases, which was nothing but a historical

fact, is legally unsustainable.

15. The second ground of rejection also appears to be

infrm. The fact that the petitioner has undergone actual

CRIWP2386-2021.DOC

imprisonment of 19 years and 1 month cannot be lost sight of.

Indisputably, the petitioner was released on seven occasions

during the period of said incarceration. Moreover, the object

behind incorporation of the special provision to release the

convicted prisoners on emergency parole, in the wake of Covid-

19 Pandemic, also needs to be kept in view. Rule 19(1)(C) is

required to be construed in such fashion that it advances the

object of decongesting the prisons and arresting the rapid

spread of contagion. The proviso to Clause (C) enumerates the

cases in which the beneft thereof cannot be granted. In this

view of the matter a very strict construction, even while

considering the application for release on emergency parole,

may run counter to the object sought to be achieved by

introduction of Clause (C). A pragmatic approach would be to

construct the said clause liberally and give it a purposive

interpretation.

16. On the aforesaid touchstone, in the face of indisputable

facts that the petitioner has already undergone more than 19

years of the actual imprisonment and had been released, in the

past, on seven occasions, the denial of the beneft of emergency

parole, in our view, would be unjust and unreasonable. Hence,

we are inclined to allow the petition.

CRIWP2386-2021.DOC

17. Thus, the following order:

: ORDER :

       (i)     The petition stands allowed.

       (ii)    The impugned order dated 17th May, 2021, passed by

respondent no.4, stands quashed and set aside.

(iii) The petitioner, Futermal Kapoorji Borana, be

released on emergency parole on usual terms and

conditions, as respondent no.4 may deem ft and

proper to impose under the circumstances of the

case.

(iv) The petitioner shall strictly abide by the conditions

which may be imposed by respondent no.4.

(v) Necessary order to release the petitioner on

emergency parole be passed by respondent no.4 on

or before 17th July, 2021.

(vi) Registry shall communicate this order to respondent

no.4, by fax and e-mail as well.

18. Rule made absolute in aforesaid terms.

       [N. J. JAMADAR, J.]                          [S. S. SHINDE, J.]