Ayyaz Khan Zabaz Khan vs Divisional Commissioner, ...
2021 Latest Caselaw 4366 Bom

                                                                    Cri. WP 146 of 2021.odt
                                              1

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH AT NAGPUR

                  CRIMINAL WRIT PETITION NO.146/2021

PETITIONER :              Ayyaz Khan Zabaz Khan,
                          C - 4935
                          Aged about Major,
                          at present Central Jail,
                          Amravati.

                                           ...VERSUS....

RESPONDENT :              1) Divisional Commissioner,
                             Division Amravati, Amravati.

                          2) The Superintendent of Central Jail,
                             Amravati.

-----------------------------------------------------------------------------------------------
        Mr. S. M. Thakre, Advocate (appointed) for petitioner
        Mr. N.R. Patil, Addl. P.P. For respondents
-----------------------------------------------------------------------------------------------

                                  CORAM : SUNIL B. SHUKRE AND
                                          AVINASH G. GHAROTE, JJ.

DATE : 10/03/2021

O R A L J U D G M E N T : (PER : AVINASH G. GHAROTE, J.)

1. The present petition, questions the order dated

19/10/2020, passed by the respondent no.2, Superintendent of

Central Jail, Amravati, rejecting the application filed by the

petitioner dated 6/10/2020, for release of parole on account of

Covid-19, in view of the notification dated 08/05/2020, which has Cri. WP 146 of 2021.odt

resulted in amendment of Rule 19 (1) of the Maharashtra Prisons

(Mumbai Furlough and Parole) Rules, 1959, (for short "the Prisons

Rules" hereinafter) by insertion of Clause (C) thereof.

2. The impugned order states that though the petitioner,

who is undergoing a sentence of life imprisonment for conviction

under Section 302 of I.P.C., had returned on the due date on the last

occasion, when he was released on parole, however, since Rule 19

(1) (C) (ii) of the Prisons Rules requires, the release and timely

return on the last two occasions to be considered, the application of

the petitioner has been rejected. In so far as the ground on which the

application of the petitioner has been rejected, the same has been

considered by learned Division Bench of this Court in Milind Ashok

Patil and Ors. Vs. State of Maharashtra and Ors.,

MANU/MH/0797/2020, decided on 16/07/2020, wherein it has

been held that Rule 19 (1) (C) (ii) of the Prisons Rules, cannot be

construed in a pedantic manner, rather, the same has to be construed

in a practical way and a condition, which is impossible to be

performed, cannot be made applicable, so as to deny the benefit to

the prisoner. There cannot be any quarrel with the proposition as Cri. WP 146 of 2021.odt

laid down, in light of which, the impugned order, which requires the

release and return in due time of the petitioner, cannot be sustained.

3. However, what has to be looked into, is the purpose and

object behind enacting Rule 19 (1) (C) of the Prisons Rules, which

was so enacted, looking to the pandemic situation created on

account of the Covid-19 situation, which required decongestion of

Prisons, in order to contain and stop the spread of the virus. The

position, as it was on 08/05/2020, when the notification was issued

and Rule 19 (1) of the Prisons Rules was amended, has undergone a

sea change since then and the position which was extant then, is no

longer available now. It is in the changed circumstances that now the

implementation of the provision relating to release of convicts, on

account of an application being made for release on Covid-19 parole

has to be considered.

4. It is trite, that Rule 19 (1) (C) of the Prisons Rules is not

mandatory, but is an enabling provision, as it is couched in a

language which confers discretion upon the Superintendent of

Prisons, to consider the application, which consideration, could only Cri. WP 146 of 2021.odt

be upon various factors prevailing, which in the opinion of the

Superintendent of Prisons, may necessitate the release of prisoners,

enabling the decongestion of the Prisons, in order to arrest the

spread of the Covid-19 virus. Neither it can be said, that a claim to

be released on Covid-19 parole is a right vested in the prisoner.

5. It is material to note that the Hon'ble Apex Court, in

National Forum on Prison Reforms Vs. Government of NCT of Delhi

and Ors., SLP (C) No.13021/2020, in which a challenge was laid to

the order dated 20/10/2020, passed by the Delhi High Court,

directing that there would be no further extension of interim bails

under the order of the Court, which were on account of the Covid

situation, whereby the prisoners released on interim bail were

directed to surrender before the Jail Authorities, noting the

improving situation, it has been directed that 2,318 prisoners, who

were granted interim bail by the Trial Court and 356 prisoners, who

were granted interim bail by the High Court, to surrender within 15

days from the date of the order.

Cri. WP 146 of 2021.odt

6. It is also necessary to note that in Suo Motu Writ

Petition (Civil) No.3/2020, while considering the issue about

extension of the period of limitation, the Hon'ble Apex Court has

observed as under :-

"Though, we have not seen the end of the pandemic, there is considerable improvement. The lockdown has been lifted and the country is returning to normalcy. Almost all the Courts and Tribunals are functioning either physically or by virtual mode. We are of the opinion that the order dated 15.03.2020 has served its purpose and in view of the changing scenario relating to the pandemic, the extension of limitation should come to an end."

In view of the above, it would therefore be necessary,

for the Superintendent of Jail to, from time to time, assess the

Covid-19 situation in the Prisons; ascertain the number of Covid-19

patients in the Prison; determine whether they could be kept in

isolation; whether social distancing norms can be safely followed

considering the number of Covid-19 patients; what is the threat

perception to the Non-Covid patients; whether there is requirement

of decongestion of the Prison; in case there is requirement of

decongestion, the number of prisoners which would be required to Cri. WP 146 of 2021.odt

be released, to ensure social distancing norms and avoiding spread

of the virus; the category of prisoners who can be released,

depending upon the Covid-19 situation in the locality, to which such

released prisoners are expected to go.

7. It is only when, the Superintendent of Prisons, is of the

considered opinion, depending upon the factors enumerated above

and such other factors, as he thinks necessary to be considered, that

there is need for decongestion of the Prisons to avoid the spread of

the Covid-19 virus, that it would be permissible for a convicted

prisoner to move an application, for considering his release on

account of the perceived threat of spread of Covid-19 virus. We are

constrained to make the above observations, for the reason, that an

impression has been created that a release on Covid-19 parole, is a

matter of right, which it is not.

8. As regards the ground stated in the impugned order on

the basis of which, application of the petitioner seeking Covid-19

parole has been rejected, we must say that this ground is not

available under Government Resolution dated 08/05/2020. One of Cri. WP 146 of 2021.odt

the conditions stated in this Government Resolution is that a

prisoner in order to be eligible for grant of Covid-19 parole must

have returned to the prison on time on two occasions of his last

releases. Such being the condition, it is clear that it would be

applicable only when a prisoner has been released earlier at least on

two occasions or has been released only on one occasion and had

not returned to jail on the due date at that time.

9. We have already stated that the view so taken by us is

consistent with the view expressed in the judgment of the

Coordinate Bench of this Court in Milind Ashok Patil (supra).

Therefore, we find that the impugned order would not sustain in the

eyes of law and therefore, it would have to be quashed and set aside.

But, as Covid-19 parole is something which does not accrue to a

prisoner as a matter of right and it has to be considered in the light

of the status of pandemic situation as on the date of consideration of

the application, the application of the petitioner would have to be

remanded back to the Superintendent of Jail for consideration afresh

in accordance with law and the observations made herein above.

Cri. WP 146 of 2021.odt

10. Thus, we allow the writ petition. The impugned order is

hereby quashed and set aside. The matter is remanded back to the

respondents for fresh consideration of the application of the

petitioner in accordance with law and in the light of the observations

made herein above.

Rule is made absolute in the aforesaid terms.

Legal remuneration of Rs.2,500/- (Rupees Two

Thousand Five Hundred Only) be paid to the learned Counsel

appointed for the petitioner.

  (AVINASH G. GHAROTE, J.)                        (SUNIL B. SHUKRE, J.)




Wadkar/R.V. Jalit


                      Digitally signed
                      by Shailendra
  Shailendra          Wadkar
  Wadkar              Date:
                      2021.03.12
                      17:46:09 +0530