Bombay High Court
Umesh Yashwant Patil vs Superintendent Of Jail Central ... on 14 June, 2021
Bench: V.M. Deshpande, Amit B. Borkar
Judgment 1 wp392.21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 392/2021
Umesh Yashwant Patil,
Aged about 32 years,
R/o. At. Umbarde Near Shankar
Mandir, Post & Tah. Kalyan,
Dist. Thane
(Presently, C/5295, Central Prison,
Amravati, Dist. Amravati)
.... PETITIONER
// VERSUS //
Superintendent of Jail,
Central Prison, Amravati
Dist. Amravati
.... RESPONDENT
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Shri S.D. Chande, Advocate for the petitioner
Ms. N.R. Tripathi, APP for the respondent
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CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.
JUNE 14, 2021
JUDGMENT : (PER:- AMIT B. BORKAR, J.)
1] Heard.
2] RULE. Rule made returnable forthwith.
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Judgment 2 wp392.21
3] The present petition has been filed by a convict suffering life
imprisonment, presently lodged in Amravati Central Prison for the offences
punishable under Sections 302, 201, 147 and 149 of the Indian Penal Code.
4] On 16/10/2020, the petitioner applied for release on
emergency parole leave for 45 days. The application has been rejected by the
impugned order passed in November, 2020 (in the petition and impugned
order date is not mentioned) on the ground that Amravati Prison is not
suffering from problem of overcrowding and various measures are taken by
the Prison Authorities to protect the prisoners from infection of Covid-19. It
is also rejected on the ground that the petitioner has not been released twice
as contemplated by Rule 19(1)(C) of the Prisons (Bombay Furlough and
Parole) Rules, 1959 (for short "the said Rules").
5] Learned advocate for the petitioner submits that the petitioner
had not availed furlough or parole even once till date and as such there is no
question of his surrendering on time twice before. He submits that Rule
19(1)(C) of the said Rules is with regard to release of the prisoners on
emergency parole, categorizing them with reference to period of sentence - 7
years or less and above 7 years. For 7 years and above, Rule 19(1)(C)(n) of
the said Rules apparently refers to release and return on time, twice. He
submits that reference to return on time twice earlier in Rule 19(1)(C)(ii) of
the said Rules has been with a view to have assurance of conduct/tendency
of the petitioner to abide by the conditions and rules. He submits that for
absence of release and return on time twice before making the application for
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Judgment 3 wp392.21
emergency parole, release of the petitioner should not be hindered, looking
at the intendment underlying the provisions.
6] We have carefully considered Rule 19(1)(C) of the said Rules
which says that on declaration of epidemic under the Epidemic Diseases Act,
1897, the application of the convict suffering from punishment inter-alia,
above 7 years be appropriately considered for release on emergency parole
by the Superintendent of Prisons, if the convict has returned to the prison on
time twice, after his release. Thus, it would be seen that the underlying
intention of the provision is to meet up with and adopt to purpose of
notification under the Act of 1897, the exercise being in the nature of human
rights to safeguard the health in epidemic.
7] The judgment of the Division Bench of this Court in the case of
Kavita Dilip Baviskar vs. State of Maharashtra in Criminal Writ Petition
No. 571/2020 dated 30/06/2020 noted that in the amending notification,
there is direction to the Jail Authorities to see that the prisoners who are
behind bars be released on emergency parole in view of the situation created
by Covid-19 virus and under the same, there is condition that a prisoner who
is otherwise eligible to get furlough or parole would get the benefit of the
amended provision. While under Rule 19(1)(C)(ii) of the said Rules, it has
been referred to the convicts in the past who had been released on furlough
or parole and returned on time on two occasions would be considered, such
condition the Division Bench has held to be strange and it has been observed
that not availing of furlough or parole earlier would not dis-entitle the
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benefit of amended rule to such persons if other eligibility conditions are
fulfilled.
8] In view of the judgment of Division Bench of this Court in the
case of Kavita Dilip Baviskar (supra), we are of the view that the rejection of
emergency parole on the ground of the petitioner not having been
surrendered earlier twice is not sustainable.
9] Insofar as the other ground referred in the impugned order to
the effect that Amravati Central Prison's Officials have made appropriate
arrangements for protection of prisoners from infection of Covid-19 is
concerned, in view of the clear language of Rule 19(1)(C)(ii) of the said
Rules, the petitioner needs to be released on emergency parole for period of
45 days.
10] Hence, the following order:-
(a) The impugned order passed in November, 2020 by
the respondent is quashed and set aside.
(b) The petitioner is directed to be released on
emergency Covid parole for 45 days on usual terms and
conditions as may be stipulated by the respondent.
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Judgment 5 wp392.21
(c) The petitioner shall abide by all the conditions
imposed by the respondent while releasing on parole for
ensuring his reporting back at the prison in time.
Rule is made absolute in the above terms.
(JUDGE) (JUDGE)
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