Bombay High Court
Rohit Balaji Waghmare (C-9230) vs The State Of Maharashtra And ... on 9 March, 2021
Bench: V.K. Jadhav, M. G. Sewlikar
crwp228.21+
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
905 CRIMINAL WRIT PETITION NO.228 OF 2021
Govind s/o Ramrao Jadhav C-8726
Age major, Occ. Nil,
R/o. At presnet Harsul Prison
Tq. and District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through its Home Department
Mantralaya, Mumbai
2. The Superintendent
of the Central Jail Harsool
District Aurangabad ...Respondents
.....
Advocate for Petitioner : Mr. Chate Sharada P.
APP for Respondents: Mr. A.S. Shinde
.....
AND
959 CRIMINAL WRIT PETITION NO.333 OF 2021
Rohit s/o Balaji Waghmare C-9230
Age major, Occ. Nil,
R/o. Aurangabad Central prison,
Tq. and District Aurangabad ...Petitioner
versus
1. The State of Maharashtra
Through Secretary, Home Department
Mantralaya, Mumbai
2. The Superintendent
of the Central Jail Harsool
District Aurangabad ...Respondents
.....
Advocate for Petitioner : Mr. Ravindra Nirmal
APP for Respondents: Mr. A.V. Deshmukh
::: Uploaded on - 11/03/2021 ::: Downloaded on - 11/03/2021 21:38:14 :::
crwp228.21+
-2-
CORAM : V. K. JADHAV AND
M. G. SEWLIKAR, JJ.
DATED : 9th MARCH, 2021
ORAL JUDGMENT (PER V.K. JADHAV. J.):-
1. Rule. Rule returnable forthwith. By consent, heard finally at
admission stage.
2. In both these writ petitions, common and identical question is
involved and therefore, these petitions are taken together for hearing
and disposed of by this common judgment and order.
3. In terms of the notification dated 8.5.2020 issued by the State
Government on the backdrop of outbreak of COVID-19 pandemic
situation, the petitioners herein have filed leave applications for
emergency parole to the respondent authorities, however, the
respondent authorities rejected the leave applications by impugned
order solely on the ground that in terms of the said notification the
petitioners ought to have availed either furlough or parole leave in the
past and that the petitioners ought to have returned to jail in time on
such last two occasions.
4. Learned counsel for the petitioners submit that this issue is no
longer res-integra in view of the judicial pronouncement of this court
(Coram: T. V. Nalawade and Shrikant D. Kulkarni, JJ.) in criminal
writ petition No. 571 of 2020 decided on 30.6.2020, (Kavita w/o
::: Uploaded on - 11/03/2021 ::: Downloaded on - 11/03/2021 21:38:14 :::
crwp228.21+
-3-
Dilip Baviskar vs. State of Maharashtra), and thereafter in various
cases, this court has interpreted the conditions laid down in the
aforesaid Government notification and held that the said condition is
to ensure that the prisoner should return the jail on his own in time
after emergency parole period is over.
5. Learned A.P.Ps. appearing in the respective matters have
supported the order passed by the respondent authority by referring
the conditions as laid down in the notification dated 8.5.2020.
6. We have carefully gone through the judgment and order
passed by this Court in the case of Kavita w/o Dilip Baviskar vs.
State of Maharashtra (supra). This court in para 4 and 5 of the said
judgment has made the following observations:-
"4. In the notification dated 8th May 2020, the State
Government has given direction to the Jail Authority to see
that the prisoners, who are behind the bars, are released on
emergency parole in view of the situation created by
pandemic of Covid-19 virus. In the said notification, there is
condition that the prisoner, who is otherwise eligible to get
furlough or parole leave, can get the benefit of this
notification, provided that in the past he was released from jail
on furlough or parole leave on two occasions and on all the
occasions, he had surrendered in time.
5. Due to the aforesaid condition, peculiar and strange
circumstance is created as against prisoner, like present
petitioner, even if he has been actually behind the bar for
::: Uploaded on - 11/03/2021 ::: Downloaded on - 11/03/2021 21:38:14 :::
crwp228.21+
-4-
more than 11 years. The petitioner was granted furlough
leave only once and on that occasion he turned up in time. He
did not avail furlough leave on other occasion and not
claiming the furlough leave on other occasion cannot make
him dis-entitled to claim the benefit of the aforesaid
notification. The purpose behind putting such condition can be
only to ensure that the prisoner will surrender in time after
expiry of emergency parole period. There cannot be any
other intention behind such a condition."
7. We agree with the view expressed on earlier occasion by the
Division Bench that said condition is prescribed to ensure the timely
return of the prisoner, who has been granted emergency parole leave
on account of outbreak of Covid-19. It would be ridiculous to read
the said condition as condition barring the prisoner to apply for
emergency parole leave for the reason that on earlier occasion they
were not released on parole or furlough leave. Apart from this, we
agree with the submissions made by learned counsel for the
petitioners that the respondent authorities cannot make
discrimination as against the petitioners for the reason that the
petitioners can very well stay in jail safely by maintaining social
distance, as at present less number of inmates are there in the jail
since others have been granted emergency parole leave by giving
benefit of the aforesaid notification.
8. In view of above, we are inclined to allow these writ petitions.
Hence, we proceed to pass the following order:-
::: Uploaded on - 11/03/2021 ::: Downloaded on - 11/03/2021 21:38:14 :::
crwp228.21+
-5-
ORDER
I. Both the writ petitions are hereby allowed.
II. Impugned orders rejecting emergency parole are hereby
quashed and set aside.
III. Applications filed by the petitioners for emergency parole
under Government Notification dated 8th May, 2020, are
hereby allowed.
IV. The petitioners be released on emergency parole on usual
terms and conditions within seven days from today.
V. Rule made absolute in the above terms.
VI. Authenticated copy of the order is allowed to both the sides.
(M. G. SEWLIKAR, J.) (V. K. JADHAV, J.)
rlj/
