Aftab Saeed Ahmed Shaikh vs The State Of Maharashtra
2021 Latest Caselaw 7332 Bom

                                                                   975.21 WP.doc

ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL WRIT PETITION NO. 975 OF 2021

      Aftab Saeed Ahmed Shaikh                                    ....Petitioner
      C/4828, Circle - 3/1,
      Nasik Road Central Prison, Nasik

             V/s.

      The State of Maharashtra                                    .....Respondent

      Mr. Abhishek Bhadang appointed for the petitioner
      Mr. Deepak Thakare, PP a/w Mrs. Sangita D. Shinde APP for the
      State


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

RESERVED ON: 04/05/2021 PRONOUNCED ON: 06/05/2021

JUDGMENT: (PER: MANISH PITALE, J.)

1] Heard. Rule. Rule made returnable forthwith and heard with

the consent of the learned counsel appearing for the parties.

2] A letter dated 16/10/2020 was addressed by the petitioner to

this court seeking relief of being released on emergency parole (Covid-

19). Prayer made on behalf of the petitioner for the aforesaid relief

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was rejected by order/letter dated 19/09/2020 passed by respondent

Superintendent, Nashik-Road Central Prison.

3] By order dated 12/04/2021, this Court passed an order

appointing Advocate Mr. Abhishek Bhadang from the legal aid panel

to appear on behalf of petitioner before this Court. Accordingly, today,

when the petition was listed for consideration, Advocate Mr. Abhishek

Bhadang was heard on behalf of the petitioner. Mr. Deepak Thakre,

learned PP submitted a report dated 26/04/2021 before this Court.

4] Mr. Bhadang, learned counsel appointed to appear on behalf of

the petitioner submitted that the petitioner has already undergone

more than 23 years of imprisonment. It was submitted that even

though he is a convict in the Mumbai railway bomb blast case that

occurred in the year 1998 and he has been sentenced to suffer

imprisonment for life, on four earlier occasions, the petitioner was

released by respondent state authorities on furlough/parole. It was

submitted that in this backdrop, prayer made on behalf of the

petitioner for grant of emergency parole (Covid-19) ought to have been

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accepted. By inviting attention of this court to the impugned order

dated 19/09/2020, learned counsel for the petitioner submitted that

the only reason why the prayer was rejected was, that he was

convicted in the said bomb blast case that on one occasion, after

being released on furlough leave, petitioner had reported late by 14

days. According to the petitioner, this reason stated in the impugned

order is not sustainable and that the petitioner deserves to be

granted relief of emergency parole (Covid-19).

5] On the other hand, learned PP, submitted that while convicting

the petitioner for aforesaid serious offence concerning Mumbai

railway bomb blast case, Sessions Court itself had specifcally

recorded that State Government is directed not to act liberally, while

entertaining any request of the accused for commutation or

remission of sentence, considering the seriousness of nature of

offence committed by the accused. By placing emphasis on the same,

learned PP submitted that petitioner did not deserve to be treated in

a liberal manner. Apart from this, it was submitted that admittedly,

the petitioner had reported late by 14 days on one occasion while

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being released on furlough leave. Learned PP further submitted that

considering the present condition of the number of inmates in the

Nashik-Road Central prison, the petitioner did not deserve to be

released on emergency parole (Covid-19).

6] Heard learned counsel for rival parties and also considered the

material on record. There is no dispute about the fact that the

petitioner has already undergone more than 23 years of

imprisonment for being convicted in a serious case involving serial

bomb blasts in trains in Mumbai in the year 1998. Yet, record shows

that despite serious nature of offence for which the petitioner stood

convicted and even when the Sessions Court had made the

aforementioned observations while convicting and sentencing the

petitioner, respondents themselves had granted furlough/parole leave

to the petitioner on four earlier occasions. Perusal of the impugned

order dated 19/09/2020 shows that on earlier occasions, respondent

authorities itself had granted parole leave to the petitioner.

7] It is also clear from the record that the petitioner reported back

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on time on three occasions and only on one occasion, he reported late

by 14 days. It is sought to be explained on behalf of the petitioner

that even on this occasion, when he returned late after 14 days, the

petitioner had applied for extension of his parole leave and such

application was under consideration. It was when the petitioner came

to know that the said application for extension of parole leave was not

being favorably considered, that he himself reported back to the jail

authorities. Thus, it is clear from the record that despite conviction of

the petitioner for the aforesaid serious offence and his being

sentenced for imprisonment for life, respondent jail authorities

themselves had granted furlough/parole leaves to him.

8] An apprehension has been expressed on behalf of respondents

that since emergency parole (Covid-19) once granted for 45 days, is

liable to be extended for period of 30 days as long as Government

Notifcation regarding pandemic is in force, there is every likelihood of

the petitioner remaining out of the jail for a long period of time. It is

submitted that therefore, prayer made on behalf of the petitioner may

not be granted.

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9] But, the said apprehension expressed by the respondent State

can be taken care of by directing release of the petitioner on regular

parole for a period of 30 days instead of acceding to his prayer for

grant of emergency parole (Covid-19). We are of the opinion that since

the petitioner is convicted of aforesaid serious offence concerning

Mumbai train blasts, it would be appropriate and in the interest of

justice, the petitioner is granted regular parole instead of relief of

emergency parole (Covid-19) for a long period of time. Considering

that on one occasion that the petitioner had reported late by 14 days,

we are of the opinion that specifc direction is necessary in the

present case for the petitioner to surrender after period of parole

being granted by this Court is over.

10] In view of above, the writ petition is partly allowed. Respondent

state authorities are directed to release the petitioner on parole for a

period of 30 days subject to usual conditions and requirements

prescribed in Prisons (Bombay Furlough and Parole) Rules, 1959.

The petitioner shall surrender before respondent Superintendent,

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Nashik-Road Central Prison upon expiry of aforesaid period of 30

days.

11] Writ petition is partly allowed and Rule is made absolute in the

above terms.

   [MANISH PITALE, J.]                        [S. S. SHINDE, J.]