Mohd. Badshaha Mohd. Ismail ... vs The State Of Maharashtra
2021 Latest Caselaw 7022 Bom

Sherla V.


                                                                                11_wp.983.2021.doc


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE SIDE

                            CRIMINAL WRIT PETITION NO.983 OF 2021

            Mohammed Badshaha Mohammad Ismail
            Ansari
            Age: adult, Occ.: Driver
            R/at: Zopada No.116, Sant Sawata Mali Road                            ... Petitioner
            Reay Road, Mazgaon, Mumbai - 10
            (Currently lodged in Nashik Road Central
            Prison, Nashik)
                              Vs.
            1) State of Maharashtra
            2) The Superintendent of Prison                                 ... Respondents
            Nashik Road Central Prison, Nashik



            Ms.Priyanka Chavan, 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.

DATED: MAY 4, 2021

ORAL JUDGMENT (PER S.S. SHINDE, J.):

1. Rule. Rule made returnable forthwith with the consent of the

learned Counsel appearing for the parties and heard finally.

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

substantial reliefs:

11_wp.983.2021.doc

"a) This Hon'ble Court may be pleased to quash and set aside the order/letter of understanding dated 29.09.2020, passed by the Superintendent of Prison, Nashik Road Central Prison, Nashik.

b) This Hon'ble Court may be pleased to release the Petitioner on emergency parole for a period of 45 days, on any terms and conditions as this Hon'ble Court may deem fit and proper."

3. The Petitioner herein (Convict No.C-9233), is convicted for

the offences punishable under sections 376, 377, 458, 392, 506,

201 of Indian Penal Code and sentenced to suffer life

imprisonment and payment of fine of Rs.27,000/-, in Sessions

Case No.174 of 2013 on 27.12.2013 by the Sessions Court at

Mumbai.

4. Learned Counsel appearing for the Petitioner submits that

the petitioner has undergone more than 8 years of imprisonment

and he is currently 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.

11_wp.983.2021.doc

Therefore, the learned Counsel appearing for the Petitioner

submits that merely because the Petitioner was not released

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

19) parole.

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 the learned APP

appearing for the Respondent - State. With the able assistance

11_wp.983.2021.doc

of the learned Counsel appearing for the Petitioner and the

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, Nashik. Upon 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 on furlough or parole, till

date.

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

released 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 the case of Milind Ashok Patil & Ors. Vs.

State of Maharashtra & Ors.1, 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 not released once in

the past on parole/furlough, it cannot be a ground for rejecting the

application for emergency parole.

1 Criminal Writ Petition-ASDB-LDVC No.65 of 2020 decided on 16th July, 2020

11_wp.983.2021.doc

8. In that view of the matter, the Writ Petition is partly allowed.

The impugned order dated 29.9.2020 passed by Respondent

No.2, is quashed and set aside. The petitioner is granted liberty to

apply afresh for grant of emergency Covid-19 parole within one

week from today. Upon filing such an application, the respondent -

authority shall decide the same on its own merits, as expeditiously

as possible, however, within two weeks from the date of filing of

the application in accordance with the Prisons (Bombay Furlough

and Parole) Rules, 1959, and keeping in view the factors like the

extent of spread of Covid-19 virus and conditions in jail.

9. Rule is partly made absolute to above extent. The Writ

Petition stands disposed of accordingly.

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