Jaharsingh Harisingh Barela vs The State Of Maharashtra
2021 Latest Caselaw 7021 Bom

Sherla V.


                                                                           21_wp.623.2021-J.doc


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE SIDE

                            CRIMINAL WRIT PETITION NO.623 OF 2021

            Jaharsingh Harisingh Barela
            (prisoner No.C/7904)
                                                                               ... Petitioner
            Age 45 years, Occ.: Nil,
            At present Nashik Road Central Prison, Nashik
                              Vs.
            1. State of Maharashtra
            2. The Superintendent                                        ... Respondents
            Nashik Road Central Prison, District Nashik.

            Mr.Sham V. Walve, advocate appointed for the Petitioner

            Mr.Deepak Thakare, Public Prosecutor with Mr.S.R. Shinde, APP,
            for Respondent - State

                                                CORAM: S.S. SHINDE &
                                                       MANISH PITALE, JJ.

JUDGEMENT RESERVED ON: APRIL 29, 2021 JUDGEMENT DELIVERED ON: MAY 4, 2021

JUDGMENT [PER S. S. SHINDE, J.]:

Rule. Rule made returnable forthwith and heard with the

consent of the learned Counsel appearing for the parties.

2. The Petitioner has filed the present petition for the following

substantial relief:

21_wp.623.2021-J.doc

"C) The order passed by Respondent No.2 i.e. The Superintendent, Nashik Road Central Prison, Nashik dated 28/09/2020 may kindly be quashed and set aside, which is at EXHIBIT C"

3. The Petitioner herein (Convict No.C-7904), is convicted for

the offence punishable under sections 302 and 235 (2) of Indian

Penal Code for life imprisonment and fine of Rs.500/-, in Sessions

Case No.389 of 2007 on 31.8.2009 by the Sessions Court at

Mumbai.

4. Learned Counsel appearing for the Petitioner submits that

the petitioner has undergone more than 14 years of imprisonment

and he is lodged in the Nashik Road Central Prison. It is

submitted that the application of the petitioner to release him on

emergency (Covid-19) parole was rejected on the ground that the

petitioner was never released on parole / furlough, till date.

Therefore, the learned Counsel appearing for the Petitioner

submits that merely because the Petitioner was never released till

date, is no ground to reject his application for emergency (Covid-

19) parole.

21_wp.623.2021-J.doc

5. Learned APP appearing for Respondent-State submits that

the prayer of the petitioner to release him on emergency (Covid-

19) parole has rightly been turned down, relying upon the

notification dated 8th May 2020 issued by the Government of

Maharashtra, Home Department. It is submitted that the inmates

are less in number as compared to the capacity of the prison.

Utmost care is being taken in the prison by the officers and

employees working in the prison, by examining the convicts by

thermal scanning and RT-PCR tests. At present, there are no

convicts who are tested positive/Covid-19 affected in the prison.

Therefore, learned APP submits that the prayer of the petitioner to

release him on emergency (Covid-19) parole cannot be favorably

considered.

6. We have given careful consideration to the submissions of

learned counsel appearing for the Petitioner and learned APP

appearing for the Respondent - State. With the able assistance of

learned counsel appearing for the Petitioner and learned APP, we

have perused pleadings and grounds in the petition, annexures

thereto, impugned order/letter of understanding and also report

received from the Superintendent of Nashik Road Central Prison,

21_wp.623.2021-J.doc

District Nashik. Upon a careful perusal of the said report received

from the prison authority, it appears that proper care is being taken

of the convicts in the prison so as to avoid possibility of contracting

Covid-19 virus. However, in the impugned order/letter of

understanding, the reason given is that the Petitioner herein was

never released in the past, till date.

7. In our opinion, merely because the petitioner was never

released on parole / furlough earlier, cannot be a ground for

rejecting the application of the petitioner for emergency parole.

This issue has been dealt with by this Court in its decision dated

16th July, 2020 in Criminal Writ Petition-ASDB-LD-VC No. 65 of

2020 (Milind Ashok Patil & Ors. Vs. State of Maharashtra &

Ors.), wherein this Court had an occasion to consider a similar

issue and a view is taken in the said case that merely because the

petitioner was never released in the past on parole/furlough,

cannot be a ground for rejecting the application for emergency

parole.

8. In that view of the matter, the writ petition is allowed. The

impugned order dated 28.9.2020 passed by Respondent No.2, is

quashed and set aside. The petitioner be released on emergency

21_wp.623.2021-J.doc

Covid-19 parole in accordance with the Prisons (Bombay Furlough

and Parole) Rules, 1959.

9. Rule is made absolute. The writ petition stands disposed of

accordingly.

10. We appreciate the able assistance rendered by Advocate

Mr.Sham Walve, appointed for representing the petitioner. We

quantify his fees at Rs.5,000/- to be paid by High Court Legal

Services Committee, Mumbai, within four weeks from the receipt of

a copy of this order.

     (MANISH PITALE, J.)                                  (S.S. SHINDE, J.)