Bombay High Court
Arif S/O. Shehzad Qureshi vs The State Of Maharashtra And Ors on 8 March, 2021
Bench: S.S. Shinde, Manish Pitale
1/5 Judgment WP-435-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.435 OF 2021
Arif S/o Shehzad Qureshi ]
R/o : Flat No.03, Shivai Society, ]
Akash Petrol Pump, Sawarkar Garden, ]
Dindori Road, MERI, Mhasrul, ]
Nashik. ]
(At present in Central Prison, Nashik ]
Road, Nashik) ] .. Petitioner
VERSUS
1. The State of Maharashtra ]
Through its Principal Secretary, ]
Home Department, Mantralaya, ]
Mumbai -32 ]
]
2. The Divisional Commissioner, ]
Nashik Division, Nashik, ]
Office at Commissioner Office, Nashik ]
Road, Nashik ]
]
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.Chaudhari for the Petitioner.
Mr.V.B.Konde-Deshmukh, APP for the
Respondents/State.
M.M.Salgaonkar
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2/5 Judgment WP-435-21.doc
CORAM : S.S.SHINDE &
MANISH PITALE, JJ.
RESERVED ON : 25th FEBRUARY, 2021
PRONOUNCED ON : 08th MARCH, 2021
JUDGMENT (PER MANISH PITALE, J.)
1. Rule. Rule made returnable forthwith. With the consent of
learned counsel appearing for the parties, heard finally.
2. By this writ petition, the petitioner has challenged the order
dated 4th January, 2021 passed by respondent No.4 whereby
application for grant of emergency Covid-19 parole was rejected on
the ground that he had not availed of furlough/parole leave even
once earlier.
3. The petitioner is undergoing sentence of life imprisonment
imposed upon him as per judgment and order dated 10 th November,
2020 passed by the Sessions Court at Nashik for the offences
punishable under Section 302 of the Indian Penal Code and the
appeal preferred by him against the said judgment and order is
pending.
4. In view of Covid-19 pandemic and the amendment in the
Prisons (Bombay Furlough and Parole) Rules, 1959, the petitioner
applied for grant of emergency Covid-19 parole. The application
was rejected by the aforesaid impugned order mainly on the ground
that the petitioner had not availed of furlough leave, even once in
past and that there is no crowd in the jail and the authorities had
sufficient infrastructure now to immediately take care of any inmate
M.M.Salgaonkar
3/5 Judgment WP-435-21.doc
or staff, who may suffers from Covid-19 virus.
5. Mr.Chaudhari, learned counsel appearing for the petitioner,
submitted that the ground stated in the impugned order was
unsustainable because the amendment brought in the Prisons
(Bombay Furlough and Parole) Rules, 1959 was specifically intended
to give relief of emergency Covid-19 parole to convicts like the
petitioner and that non availing of facility of furlough leave or
parole even once before, could not be a ground for rejecting the
application of the petitioner. It was submitted that the application of
the petitioner was not considered properly on merits at all by
respondent No.4.
6. On the other hand, Mr.Konde-Deshmukh, learned APP
appeared on behalf of the respondent/State and opposed the grant
of emergency Covid-19 parole. It was submitted that now the
situation in the Nashik Road Central Prison, Nashik had changed
substantially. It was submitted that the number of inmates in the
said prison are less than the capacity. It was submitted that there is
no crowd in the jail and that the authorities had sufficient
infrastructure now to immediately take care of any inmate or staff,
who may suffers from Covid-19 virus. On this basis, it was
submitted that the petitioner could be permitted to apply afresh for
grant of emergency Covid-19 parole.
7. The ground raised on behalf of the petitioner to challenge the
impugned order appears to be justified because this Court has
already taken a view in case of Kalyan s/o Bansidharrao Renge Vs.
The State of Maharashta & Anr. (Criminal Writ Petition No.ASDB-LD-
M.M.Salgaonkar
4/5 Judgment WP-435-21.doc
VC 265 OF 2020) and Uzair @ Hujer S/o Rafiq Shaikh Vs. The State
of Maharashtra & Ors. (Criminal Writ Petition No.2989 of 2020) that
non availing of parole or furlough leave, even once earlier, cannot be
a ground to reject the application for grant of emergency Covid-19
parole. To that extent, the case of the petitioner is clearly covered in
his favour.
8. But, at the same time, the fact situation on ground as on
today, cannot be ignored and, therefore, there is substance in the
contention raised on behalf of the learned APP. The impugned order
itself records that now the situation at the Nashik Road Central
Prison has changed substantially. The number of inmates in the jail
are less than the capacity of the jail, indicating that there is no over
crowding as of now. It is also reported that the inmates presently
are not infected by Covid-19 virus and that the regular rapid antigen
tests are being undertaken. In that view of the matter, we are of the
opinion that the ground situation in the light of the said report
cannot be ignored and that there is substance in the contention
raised by the learned APP that the request of the petitioner for grant
of emergency Covid-19 parole can be considered afresh.
9. In view of the above, the writ petition is partly allowed. The
impugned order is quashed and set aside. The petitioner is granted
liberty to apply afresh for grant of emergency Covid-19 parole. In
case, such an application is submitted by the petitioner, respondent
No.4 shall dispose of the same, within two weeks of submission of
such application, in the light of the circumstances prevailing as on
today and in terms of the Prisons (Bombay Furlough and Parole)
Rules, 1959.
M.M.Salgaonkar
5/5 Judgment WP-435-21.doc
10. The writ petition is disposed of in the above terms. Rule is
discharged accordingly.
(MANISH PITALE, J.) (S.S.SHINDE, J.)
M.M.Salgaonkar
