Rajan @ Balu Shankar Nair vs The State Of Maharashtra
2021 Latest Caselaw 7024 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL WRIT PETITION NO.979 OF 2021

Rajan @ Balu Shankar Nair                                     : Petitioner.
      Versus
The State of Maharashtra                                      : Respondent.

Ms. Gauri S Velankar, appointed advocate for the Petitioner.
Mr. Deepak Thakre, PP a/w Dr. F R Shaikh, 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/9244) has been convicted by the

Additional Sessions Judge, Mangaon on 01/01/2014 in Sessions Case

No.43/2008 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.18000/- in default sentence to suffer imprisonment for 5 years.

3 The application of the Petitioner for grant of emergency Covid-19

parole has been rejected by the Respondent- Authority vide order dated

28/09/2020 on the ground that the Petitioner was never released on

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parole/furlough till date, and in view of the Government Notification dated

08/05/2020 the Petitioner was not entitled to be released on emergency

parole.

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 13 years 07 months 12 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 the Petitioner herein was never released on

parole/furlough, till date. Therefore, learned counsel appearing for the

Petitioner submits that, merely because the Petitioner was never released

earlier 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

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

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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

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

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abscond and may not come back to the jail. The ground for rejection of the

application Petitioner that the Petitioner was never released on furlough/parole

till date 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 As stated herein above, the application made by the Petitioner was

rejected only on the ground that the Petitioner was never released on furlough

or parole till date, 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.

10 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

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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."

11 The issue as to whether the convict, whose maximum sentence is

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.

12 In our opinion, merely because the petitioner was never released

on furlough/parole till date 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 &

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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.

13 The learned PP appearing for the Respondent/State on

instructions submits that the Petitioner is tested Covid-19 positive on

26/04/2021, and he is being given treatment in the jail hospital.

14 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). Since the Petitioner was never released on furlough/

parole till date, his application for emergency parole has been rejected. There

is no other reason stated in the impugned order for rejecting the prayer of the

Petitioner to release him on emergency parole. The application for emergency

parole made by the Petitioner could not have been rejected by the Respondent

Authority on the ground mentioned in the impugned order.

15 In view of the fact that the Petitioner is tested Covid-19 Positive

and he is taking treatment in the jail hospital, if, he is released immediately, he

may face problem of bed, ventilator etc. Hence we pass the following order :-

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                                      :ORDER:

1]            The Writ Petition is allowed. The impugned order dated

28/09/2020 passed by the Respondent-Authority is quashed and set aside.

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] After completing treatment of Covid-19 from jail hospital, the

Respondent-Authority is directed to release the Petitioner subject to his

willingness and fulfilling the conditions enumerated in the relevant

Rules/Procedure as expeditiously as possible after getting Covid-19 Negative

Test Report of the Petitioner.

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.

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6]            We appreciate the able assistance rendered by Advocate Ms. Gauri

Velankar, 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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