Bombay High Court
Gafar Eliyas Sayyed (C-5300) vs The State Of Maharashtra And ... on 9 March, 2021
Bench: V.K. Jadhav, M. G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
902 CRIMINAL WRIT PETITION NO.284 OF 2021
Ashokkumar Dashrat Salam C-5109,
Age : 32 years, Occu. Nil, R/o At present
Paithan Open Prison, District Aurangabad. ...Petitioner.
Versus
1. The State of Maharashtra,
Through its Home Department
Mantralaya, Mumbai.
2. The Superintendent,
of the Open Prison at Paithan,
District Aurangabad. ...Respondents
.....
Advocate for Petitioner : Ms. Sharada P. Chate
APP for Respondents: Mr. M. M. Nerlikar
.....
AND
906 CRIMINAL WRIT PETITION NO.240 OF 2021
Ashok S/o Umaji Kadam, Convict No.5297,
Age : 38 years, Occu. Convict, R/o At present
confined in Open Prison, Paithan. ...Petitioner.
Versus
The State of Maharashtra,
Through Superintendent,
Open Jail Paithan. ...Respondent
.....
Advocate for Petitioner : Mr. Jaiswal Rupesh A
APP for Respondent: Mr. S.J. Salgare
.....
AND
907 CRIMINAL WRIT PETITION NO.241 OF 2021
Baban S/o Padvi Pawra, Convict No.5291,
Age : 40 years, Occu. Convict, R/o At present
confined in Open Prison, Paithan. ...Petitioner.
Versus
The State of Maharashtra,
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Through Superintendent,
Open Jail Paithan. ...Respondent
.....
Advocate for Petitioner : Mr. Jaiswal Rupesh A
APP for Respondent: Mrs. V.N. Patil-Jadhav
.....
AND
908 CRIMINAL WRIT PETITION NO.258 OF 2021
Maruti S/o Bhanudas Lokhande, C-5339,
Age : Major, Occ.. Nil, R/o At present
Harsul Prison, Tq. District Aurangabad. ...Petitioner.
Versus
1. The State of Maharashtra,
Through its Home Department
Mantralaya, Mumbai.
2. The Superintendent,
of the Open Prison at
District Aurangabad. ...Respondents
.....
Advocate for Petitioners : Ms. Sharada P. Chate
APP for Respondents: Mr. A.S. Shinde
.....
AND
910 CRIMINAL WRIT PETITION NO.260 OF 2021
Pawa S/o Ashok Malche, C-5311,
Age : Major, Occu. Nil, R/o At present
Harsul Prison, Tq. District Aurangabad. ...Petitioner.
Versus
1. The State of Maharashtra,
Through its Home Department
Mantralaya, Mumbai.
2. The Superintendent,
of the Open Prison at
District Aurangabad. ...Respondents
.....
Advocate for Petitioner : Ms. Sharada P. Chate
APP for Respondents: Mr. A.V. Deshmukh
.....
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AND
911 CRIMINAL WRIT PETITION NO.262 OF 2021
Ashok s/o Chinda Birahade, C-5308,
Age : Major, Occu. Nil, R/o At present
Paithan Open Prison, District Aurangabad. ...Petitioner.
Versus
1. The State of Maharashtra,
Through its Home Department
Mantralaya, Mumbai.
2. The Superintendent,
of the Open Prison at Paithan,
District Aurangabad. ...Respondents
.....
Advocate for Petitioner : Ms. Sharda P. Chate
APP for Respondents: Mr. A.V. Deshmukh
.....
AND
912 CRIMINAL WRIT PETITION NO.264 OF 2021
Abdul Rahim Abdul Latif Khan, C-5301,
Age : Major, Occu. Nil, R/o At present
Harsul Prison, Tq. District Aurangabad. ...Petitioner.
Versus
1. The State of Maharashtra,
Through its Home Department
Mantralaya, Mumbai.
2. The Superintendent,
of the Open Prison at
District Aurangabad. ...Respondents
.....
Advocate for Petitioner : Ms. Sharda P. Chate
APP for Respondents: Mr. M.M. Nerlikar
.....
AND
913 CRIMINAL WRIT PETITION NO.267 OF 2021
Nitin S/o Ambadas Nerlikar, C-5331
Age : Major, Occu. Nil, R/o At present
Harsul Prison, Tq. District Aurangabad. ...Petitioner.
Versus
1. The State of Maharashtra,
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Through its Home Department
Mantralaya, Mumbai.
2. The Superintendent,
of the Open Prison,
District Aurangabad. ...Respondents
.....
Advocate for Petitioner : Ms. Sharda P. Chate
APP for Respondents: Mr. A.S. Shinde
.....
AND
914 CRIMINAL WRIT PETITION NO.270 OF 2021
Sainath S/o Annasaheb Waghchaure, C-5330
Age : Major, Occu. Nil, R/o At present
Harsul Prison, Tq. District Aurangabad. ...Petitioner.
Versus
1. The State of Maharashtra,
Through its Home Department
Mantralaya, Mumbai.
2. The Superintendent,
of the Open Prison at
District Aurangabad. ...Respondents
.....
Advocate for Petitioner : Ms. Sharda P. Chate
APP for Respondents: Mr. A.S. Shinde
.....
AND
915 CRIMINAL WRIT PETITION NO.271 OF 2021
Gafar S/o Eliyas Sayyed, C-5300,
Age : Major, Occu. Nil, R/o At present
Harsul Prison, District Aurangabad. ...Petitioner.
Versus
1. The State of Maharashtra,
Through its Home Department
Mantralaya, Mumbai.
2. The Superintendent,
of the Open Prison,
District Aurangabad. ...Respondents
.....
Advocate for Petitioner : Ms. Sharda P. Chate
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APP for Respondents: Mrs. V.N. Patil Jadhav
.....
AND
917 CRIMINAL WRIT PETITION NO.280 OF 2021
Anand S/o Gonsalo Fosh, C-5322,
Age : Major, Occu. Nil, R/o At present
Harsul Prison, Tq. District Aurangabad. ...Petitioner.
Versus
1. The State of Maharashtra,
Through its Home Department
Mantralaya, Mumbai.
2. The Superintendent,
of the Open Prison,
District Aurangabad. ...Respondents
.....
Advocate for Petitioners : Ms. Sharda P. Chate
APP for Respondents: Mrs. V.N. Patil Jadhav
.....
AND
918 CRIMINAL WRIT PETITION NO.281 OF 2021
Rohidas S/o Yuraj Bhil, C-5328,
Age : Major, Occu. Nil, R/o At present
Harsul Prison, Tq. District Aurangabad. ...Petitioner
Versus
1. The State of Maharashtra,
Through its Home Department
Mantralaya, Mumbai.
2. The Superintendent,
of the Open Prison at
District Aurangabad. ...Respondents
.....
Advocate for Petitioner : Ms. Sharada P. Chate
APP for Respondents : Mr. M. M. Nerlikar
.....
AND
919 CRIMINAL WRIT PETITION NO.282 OF 2021
Shaikh Shafi Shaikh Mustafa, C-5286
Age : Major, Occu. Nil, R/o At present
Paithan Open Prison, District Aurangabad. ...Petitioner.
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Versus
1. The State of Maharashtra,
Through its Home Department
Mantralaya, Mumbai.
2. The Superintendent,
of the Open Prison at Paithan,
District Aurangabad. ...Respondents
.....
Advocate for Petitioner : Ms. Sharda P. Chate
APP for Respondents: Mr. A.V. Deshmukh
.....
AND
957 CRIMINAL WRIT PETITION NO.323 OF 2021
Pandharinath S/o Dattu Bodke, C-182
Age : 40 years, Occu. Nil, R/o At present
Harsul Prison, District Aurangabad. ...Petitioner.
Versus
1. The State of Maharashtra,
Through its Home Department
Mantralaya, Mumbai.
2. The Superintendent,
of the Open Prison at
District Aurangabad. ...Respondents
.....
Advocate for Petitioners : Ms. Sharda P. Chate
APP for Respondents: Mr. A.S. Shinde
.....
AND
958 CRIMINAL WRIT PETITION NO.324 OF 2021
Bhagwan S/o Dattu Shinde, C-5159,
Age : 30 years, Occu. Nil, R/o At present
Harsul Prison, Tq. District Aurangabad. ...Petitioner.
Versus
1. The State of Maharashtra,
Through its Home Department
Mantralaya, Mumbai.
2. The Superintendent,
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of the Open Prison,
District Aurangabad. ...Respondents
.....
Advocate for Petitioner : Ms. Sharda P. Chate
APP for Respondents: Mr. S.J. Salgare
.....
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 all these writ petitions, common and identical question is
involved and therefore, all 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. It is further observed by the respondent
authorities that all the petitioners are presently in the open jail at
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Paithan and at present there are less number of inmates compared
to the capacity of 500 inmates in the open jail.
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
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. Learned counsel submits that
even though there are less number of inmates in the open jail at
present, however, it cannot be ignored that most of the inmates in the
open jail came to be released on emergency parole leave and there
is no reason for the respondent authorities to discriminate these
petitioners for the reason that there are less number of inmates in the
open jail at present, as compared to the capacity of open jail of 500
inmates.
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
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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
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
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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 open jail safely by maintaining social
distance, as at present less number of inmates are there in the open
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:-
ORDER
I. All 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.
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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/
