Kamal Mayaram Kanojiya vs The State Of Maharashtra And Anr
2021 Latest Caselaw 7583 Bom

Sherla V.


                                                                            wp.1839.2021 - J.doc


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE SIDE

                           CRIMINAL WRIT PETITION NO.1839 OF 2021

            Kamal Mayaram Kanojiya
            Age 45 years,
            Occ.: Nil
                                                                               ... Petitioner
            r/o. At present C/342, Circle No.2/13
            Taloja Central Prison, Navi Mumbai
            Maharashtra
                              Vs.
            1) State of Maharashtra
            2) The Superintendent of Jail                                ... Respondents
            Taloja Central Prison



            Mr.Aniket Vagal for the Petitioner

            Mr.Deepak Thakare, Public Prosecutor with Mr.S.R. Shinde, APP,
            for Respondent - State


                                                CORAM: S.S. SHINDE &
                                                       MANISH PITALE, JJ.

                       JUDGMENT RESERVED ON: MAY 6, 2021
                     JUDGMENT DELIVERED ON: JUNE 8, 2021


            JUDGMENT (PER S.S. SHINDE, J.):

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

consent of the counsel appearing for the parties.

2. The Petitioner has filed the present petition for the following

substantial reliefs:

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a) Order of Respondent No. 2 passed on 18.3.2021, may kindly be quashed and set aside.

b) The Petitioner may kindly be released on Emergency Parole for the Period of 45 days on any terms and conditions as this Hon'ble Court may deem fit and proper."

3. The Petitioner herein (Convict No.C-342), is convicted for the

offence punishable under section 302 read with section 34 as also

sections 392 and 394 of Indian Penal Code for life imprisonment

and fine in Sessions Case No.6 of 2007 on 2511.2008 by the

Sessions Court at Mumbai.

4. Learned Counsel appearing for the Petitioner submits that

the petitioner has undergone more than 16 years of imprisonment

and he is lodged in Taloja Central prison, Navi Mumbai. It is

submitted that the application of the petitioner to release him on

emergency (Covid-19) parole was rejected by Superintendent of

Jail, Taloja Central Prison, Navi Mumbai on 30 th May, 2020, on the

ground that the petitioner was never released on parole/furlough.

Therefore, the petitioner challenged the said order by filing

Criminal Writ Petition No.193 of 2021 which was partly allowed

and the petitioner was directed to apply afresh to the

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Superintendent of Jail, Taloja Central Prison, Navi Mumbai.

Accordingly, the petitioner applied to the Superintendent of Jail,

Taloja Central Prison, Navi Mumbai afresh. However, the said

application was also rejected on the grounds that the petitioner is

not a resident of Maharashtra; that in 2015, while in Nashik Road

Central Prison, the petitioner had participated in hunger strike for

illegal demands and that the sureties provided by the petitioner

were not satisfactory as they are having criminal antecedents.

5. The learned Counsel for the petitioner submits that all the

grounds raised by the Jail authority are untenable. He submitted

that as regards the first ground stated in the impugned order, same

is unsustainable as the Government vide its Notification dated

13.11.2020 amended the order dated 8.5.2020 and permitted

release of those convicts also, who are from outside Maharashtra.

As regards the second ground, the petitioner was already

punished by transferring him to Taloja Central Prison from Nashik

Road Central Prison. As far as the third ground regarding

unsatisfactory sureties is concerned, the learned Counsel

submitted that the petitioner has arranged for sureties through his

relatives in Maharashtra, however, the same are rejected on the

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ground that they are friends of the relatives of the petitioner and

that they are having criminal antecedents. The learned Counsel

submitted that as the petitioner is from Uttar Pradesh, it is difficult

for him to arrange sureties from Maharashtra but still, he had

arranged for sureties through his relatives from Maharashtra,

which were wrongly rejected. He, therefore, prays that the

petitioner be granted emergency (Covid-19) parole.

6. Learned APP appearing for Respondent-State submits that

the prayer of the petitioner to release him on emergency (Covid-

19) parole has rightly been turned down by the jail authority on the

grounds mentioned above. Further, she submitted it is clear from

the report called from Superintendent, Taloja Central Prison, Navi

Mumbai that there is a serious apprehension about absconding of

the petitioner, if he is granted parole. It is also mentioned in the

report that the guarantors are incompetent as they are accused of

serious offences. Further, if the petitioner is released, there is a

threat / danger to the life of the informant and witnesses. The

learned APP has submitted that the inmates in Jail are less in

number as compared to the capacity of the prison. Utmost care is

being taken in the prison by the officers and employees working in

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the prison by regularly examining the convicts by thermal scanning

and RT-PCR tests. At present, there are no convicts who are

tested positive/Covid-19 affected in the said prison. Therefore, the

learned APP has submitted that the petitioner should not be

released on emergency (Covid-19) parole and Writ Petition be

rejected.

7. We have given a careful consideration to the submissions of

learned Counsel appearing for the Petitioner and learned APP

appearing for the Respondent - State. With the able assistance of

learned counsel appearing for the Petitioner and learned APP, we

have perused pleadings and grounds in the petition, annexures

thereto, impugned order/letter of understanding and also report

received from the Superintendent of Taloja Central Prison, Navi

Mumbai. Upon a careful perusal of the said report received from

the prison authority, it appears that proper care is being taken of

the convicts in the prison so as to avoid possibility of contracting

Covid-19 virus. The report submitted by the Superintendent of

Jail, Taloja Central Prison, Navi Mumbai is based upon enquiry

and, therefore, it is not desirable to interfere with the said fact

finding report. The apprehension expressed by the respondent -

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authority is well founded on the basis of the enquiry report

submitted by the Superintendent of Jail, Taloja Central Prison, Navi

Mumbai. From the perusal of the report received from the Jail

authority, it appears that the proposed sureties suggested by the

petitioner are not reliable and trustworthy and having criminal

antecedents. The reasons assigned in the impugned

order/communication are based upon fact finding inquiry and do

not warrant interference in the exercise of writ jurisdiction.

8. In that view of the matter, we are unable to persuade

ourselves to entertain the prayer of the petitioner to release him on

emergency (Covid-19) parole. Hence, the petition stands rejected.

9. Rule is discharged. The writ petition stands disposed of

accordingly.

10. In future, if the petitioner is able to furnish competent and

eligible sureties, liberty is granted to the petitioner to apply afresh

for parole/furlough or Covid parole.

     (MANISH PITALE, J.)                                           (S.S. SHINDE, J.)