Bombay High Court
Sunil Laxman Ghode vs The State Of Maharashtra on 4 May, 2021
Bench: S.S. Shinde, Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.982 OF 2021
Sunil Laxman Ghode : Petitioner.
Versus
The State of Maharashtra : Respondent.
Ms. Priyanka Chavan, appointed advocate for the Petitioner.
Mr. Deepak Thakre, PP a/w Mr. K V Saste, APP for the Respondent/State.
CORAM : S. S. SHINDE,
MANISH PITALE, JJ
Reserved on : 29th APRIL 2021
Pronounced on : 04th May 2021.
JUDGMENT : (PER S S SHINDE, J)
1 Rule. Rule is made returnable forthwith and with the consent of
the learned counsel appearing for the parties heard finally.
2 The Petitioner has filed this Petition for grant of emergency Covid-
19 parole. The Petitioner (Convict No.C/6895) has been convicted by the
Additional Sessions Judge, Niphad, Dist. Nashik on 31/03/2008 in Sessions
Case No.48/2005 for the offence punishable under Section 302 and 201 of the
Indian Penal Code, and sentenced to suffer imprisonment for life and to pay
fine of Rs.3500/- in default sentence to suffer imprisonment for 1 year.
3 The application of the Petitioner for grant of emergency Covid-19
parole has been rejected by the Respondent- Authority vide order dated
04/06/2020 on the ground that when the Petitioner was released on furlough
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on 22/01/2014, he was reported late by 144 days and therefore in view of the
Government Notification dated 08/05/2020 the Petitioner was not entitled to
be released on emergency parole as he did not report back on time when he
was released on furlough.
4 Heard the learned advocate appointed for the Petitioner and the
learned PP appearing for the Respondent/State.
5 Learned counsel appearing for the Petitioner submits that the
petitioner has undergone 12 years 09 months 15 days 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 when the Petitioner was released earlier on furlough on
22/01/2014, he was reported late to the jail authority by 144 days. He further
submits that for the said delay of 144 days, remission period of 3 years has
been deducted by the jail authority. Therefore, learned counsel appearing for
the Petitioner submits that, merely because the Petitioner was earlier reported
late to the jail authority by 144 days is no ground to reject his application for
emergency (Covid-19) parole.
6 Learned PP appearing for Respondent-State submits that the
prayer of the petitioner to release him on emergency (Covid-19) parole has
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rightly been turned down, relying upon the notification dated 8 th May 2020
issued by the Government of Maharashtra, Home Department. It is submitted
that the requisite official capacity to accommodate the convicts in Nashik
Central Prison is 3178 inmates. By end of March 2021, there were 2364
convicts (68- women convicts and 2243 men convicts). It is submitted that in
the Nashik Central Prison 807 more convicts can be accommodated. In order to
prevent spread of Covid-19 virus, inmates/convicts who have been recently
lodged in the said prison are kept in isolation in separate hall and after
necessary health checkup and tests, they are kept in the separate room in the
prison. There is thermal scanning and rapid antigen tests are conducted on
regular basis. In case, anybody is tested positive one separate isolation room
No. 8 is maintained for their stay and treatment.
7 We have given careful consideration to the submissions of the
learned PP appearing for the Respondent - State. With the able assistance of
the learned PP appearing for the State, we have perused the pleadings and
grounds in the petition, annexures thereto, impugned order / letter of
understanding and also the report received from the Superintendent of Nashik
Road Central Prison, Nashik.
8 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
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prison so as to avoid possibility of contracting Covid-19 virus. In the said
report, it is stated that the Petitioner was never released on furlough/parole till
date. The Superintendent, Nashik Road Central Prison, Nashik, has expressed
an apprehension that in case the petitioner is released on parole, he may
abscond and may not come back to the jail. The ground for rejection of the
application of the Petitioner that the Petitioner was reported late by 144 days
when he was released on furlough leave on 22/01/2014, and the Petitioner
having not fulfilled the condition of two releases on furlough and parole for
making him eligible to avail the benefit of Notification dated 08.05.2020 for
emergency Covid-19 parole finds place in the said report.
9 The learned PP invites our attention to the table showing the details of
the convict with remarks. It is mentioned therein that for the first time on
11/02/2011 the Petitioner was released on parole, however, he did not report
on time and he was arrested and brought back to the jail by the police after
146 days, and for the said lapse on the part of the Petitioner, he was punished
and remission period of 3 years has been deducted by the jail authority. It is
also mentioned therein that the Petitioner was released on furlough on
10/10/2012, and after availing 14 days furlough leave, the Petitioner report
back to the jail authority on time. Again the Petitioner was released on
furlough on 19/03/2020, at that time also he was reported to the jail authority
on time after availing 28 days furlough leave.
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10 As stated herein above, the application made by the Petitioner was
rejected only on the ground that the Petitioner was reported late by 144 days
when he was released on furlough on 22/01/2014, and therefore he does not
fulfill the condition of last two released and surrendering on time in terms of
Government Notification dated 08/05/2020.
11 The Government Notification dated 08.05.2020 which forms the
basis of rejection of the Petitioner's application reads thus :-
"2(c)(ii) For convicted prisoners whose maximum sentence is
above 7 years shall on their application be appropriately
considered for release on emergency parole by
Superintendent of Prison, if the convict has returned to prison
on time on last 2 releases (whether on parole or furlough) for
the period of 45 days or till such time that the State
Government withdraws the Notification issued under the
Epidemics Diseases Act, 1897, whichever is earlier. The initial
period of 45 days shall stand extended periodically in blocks
of 30 days each, till such time that the said Notification is in
force (in the event the said Notification is not issued within
the first 45 days). The convicted prisoners shall report to the
concerned police station within whose jurisdiction they are
residing, once in ever 30 days."
12 The issue as to whether the convict, whose maximum sentence is
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above 7 years imprisonment, is entitled for the emergency parole irrespective
of whether he was released only once on parole in past, has been considered
by the Division Bench at Aurangabad of this Court in the unreported judgment
dated 30/06/2020 in Criminal Writ Petition No.571 of 2020 in the case of
Kavita w/o Dilip Baviskar v/s The State of Maharashtra (Coram : T V
Nalawade & Shrikant D Kulkarni,JJ). In the said case this Court has held that
the said condition i.e. whether the convict was released on one occasion or
twice on parole in past and reported back in time, had been introduced with an
intention to see that the convict shall return to jail in case he is released on
emergency parole. It is further held in the said case that though the Petitioner
therein had released only once on parole in the past, he was entitled to be
released on emergency parole.
13 From the perusal of the report and papers received from the jail
authority, it appears that earlier when the Petitioner was released on parole on
11/02/2011 and on furlough on 21/01/2014, he was reported late to the jail
authority by 146 days and 144 days respectively. However, the Petitioner was
already punished for reporting late when he was released on furlough/parole
by deducting remission period of 3 years. As also when the Petitioner was
released on furlough on 10/10/2012 and 10/03/2020, he was reported on
time after availing furlough leave of 14 days and 28 days respectively.
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14 In our opinion, merely because the petitioner was reported late
when he was released on furlough/parole, cannot be a ground for rejecting the
application of the petitioner for emergency parole. This Court in Criminal Writ
Petition-ASDB-LD-VC No. 65 of 2020 (Milind Ashok Patil & Ors. Vs. State of
Maharashtra & Ors.) had occasion to consider similar issue and a view is taken
in the said case that merely because the petitioner was not released twice in
the past on parole/furlough cannot be a ground for rejecting the application
for emergency parole.
15 In our opinion the impugned order is unsustainable, in view of the
decision rendered by this Court in Kavita Baviskar's case (supra) and Milind
Ashok Patil's case (supra). The prayer of the Petitioner to release him on
emergency Covid-19 parole could not have been rejected by the Respondent-
Authority on the ground that the Petitioner was reported late by 144 days to
the jail authority when he was released on furlough on 22/01/2014. The
Petitioner has undergone imprisonment of 12 years 09 months and 15 days.
Hence we pass the following order :-
:ORDER:
1] The Writ Petition is allowed. The impugned order dated
04/06/2020 passed by the Respondent-Authority is quashed and set aside.
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2] The Petitioner is entitled to be released on emergency Covid-19
parole in terms of the Notification dated 08.05.2020 subject to the Respondent
-Authority imposing such conditions which would ensure that the Petitioner
will surrender in time upon expiry of the emergency parole period.
3] The Respondent-Authority is directed to release the Petitioner
subject to fulfilling the conditions enumerated in the relevant Rules/Procedure
as expeditiously as possible, however, within a period of three weeks from
today.
4] Needless to mention that the Petitioner shall not misuse the liberty
of his release on emergency Covid-19 parole and strictly abide by the terms
and conditions imposed by the Respondent-Authority.
5] Rule is made absolute to above extent. The writ petition stands
disposed of accordingly.
6] We appreciate the able assistance rendered by Advocate Ms.
Priyanka Chavan, appointed for representing the petitioner. We quantify her
fees at Rs. 5000/- to be paid by High Court Legal Services Committee,
Mumbai, within four weeks from the receipt of copy of this order.
[MANISH PITALE, J] [S. S. SHINDE , J]
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