Shailesh S/O Ramesh Jaiswal vs The State Of Maharashtra And Anr
2021 Latest Caselaw 7348 Bom

                                                       crwp-1838-21CORRECTED.doc

BDP-SPS




                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                              CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL WRIT PETITION NO. 1838 OF 2021


          Shailesh S/o Ramesh Jaiswal                   )
          Age: 41 years, Occ: Prisoner                  )
          Convict No.C-12346                            )
          At present lodged in                          )
          Central Prison, Nashik road Nashik,           )
          R/o: 204, B/3, Siddhivinayak Park,            )
          Network Nagar, Road No.01,                    )
          Jogeshwari (East), Mumbai-6.                  ) ..... Petitioner.

                        V/s

          1] The State of Maharashtra                   )
          Through its Principal Secretary,              )
          Home Department,                              )
          Mantralaya, Mumbai-32                         )
                                                        )
          2] The Divisional Commissioner                )
          Nashik Division, Nashik,                      )
          Office at Commissioner Office, Nashik road    )
          Nashik.                                       )
                                                        )
          3] The Deputy Inspector General               )
          of Police (Prison), Central Division,         )
          Central Prison, Harsul, Aurangabad.           )
                                                        )
          4] The Superintendent of Prison               )
          Central Prison, Nashik Road, Nashik.          )
                                                        )
          5] Shri Pramod B. Wagh                        )
          Superintendent of Prison,                     )
          Central Prison, Nashik Road, Nashik.          ) ....Respondents

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                                                  crwp-1838-21CORRECTED.doc



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

Judgment reserved on 4/5/2021 Judgment pronounced on 6/5/2021

JUDGMENT: (Per Manish Pitale, J.)

1] By this Writ Petition, the Petitioner has challenged the order

dated 30/3/2021 passed by Respondent No.4 - Superintendent of

Prison, Central Prison, Nashik Road, Nashik, whereby application of

the Petitioner for release on emergency covid-19 parole has been

rejected.

2] Mr. Choudhari, the learned Counsel for the Petitioner submitted

that this is the second round of litigation on the same aspect before

this Court. It was pointed out that by earlier order dated 8/3/2021,

this Court had partly allowed Criminal Writ Petition No.445 of 2021

and an order rejecting application for grant of emergency covid-19

parole was set aside and the Petitioner was granted an opportunity to

apply afresh with a direction to the Respondents to dispose of such

fresh application within two weeks.

crwp-1838-21CORRECTED.doc

3] It was submitted that a perusal of the impugned order dated

30/3/2021, would show that the subsequent application of the

Petitioner has also been rejected for similar reasons and that therefore,

the Writ Petition deserves to be allowed.

4] On the other hand, Mr. Yagnik, the learned APP appearing for

the State submitted that the Petitioner had been convicted under

Section 376(2) of the Indian Penal Code and that in view of specific

prohibition under the provisions of the Prisons (Bombay Furlough and

Parole) Rules, 1959, prayer made on behalf of the Petitioner did not

deserve to be granted. It was submitted that a perusal of the

impugned order would show that this was one of the specific reasons

stated in the order and that therefore, there was no substance in the

contentions raised on behalf of the Petitioner.

5] We have perused the impugned order. The reasons stated in the

said order are two-fold, firstly that there was possibility of the

Petitioner absconding upon being released on parole leave and

secondly that under Rule 19(1) of the aforesaid Rules, the Petitioner

crwp-1838-21CORRECTED.doc

was ineligible for grant of parole leave.

6] There is no dispute about the fact that the Petitioner has been

convicted under Section 376(2) of the Indian Penal Code and

sentenced for a period of 10 years. There is also no dispute about the

fact that the Petitioner has undergone imprisonment only for a period

of 2 years and 19 days as on 03/05/2021, as per the report submitted

by the Respondent No.4 - Superintendent of Prison, Central Prison,

Nashik Road, Nashik. These two reasons are sufficient to reject the

present Writ Petition because under the relevant Rules, since the

Petitioner stands convicted under Section 376(2) of the Indian Penal

Code, he is not eligible for being released on parole leave and

secondly, he has not even undergone three years of imprisonment. We

are not in agreement with the leaned Counsel for the Petitioner that

emergency covid-19 parole stands on completely different footing and

in view of amendment brought in the aforesaid Rules in the backdrop

of the covid-19 pandemic, the application of the Petitioner ought to

have been considered favourably.

7] We are of the opinion that no fault can be found with the

crwp-1838-21CORRECTED.doc

impugned order passed by Respondent No. 4 - Superintendent of

Prison, Central Prison, Nashik Road, Nashik.

8]     Accordingly, Writ Petition is dismissed.


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