Bombay High Court
Shrihari Rajlingam Guntuka vs The State Of Maharashtra And Anr on 1 October, 2021
Bench: S.S. Shinde, N. J. Jamadar
wp-3208-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.3208 OF 2021
Shrihari Rajlingam Guntuka ...Petitioner
VISHAL
SUBHASH vs.
PAREKAR
The State of Maharashtra and Others ...Respondents
Digitally signed
by VISHAL
SUBHASH
PAREKAR
Date: 2021.10.01
Ms. Sharda Chate, for the Petitioner.
13:47:39 +0530
Mrs. S.D. Shinde, APP for the Respondent-State.
CORAM : S.S. SHINDE &
N.J. JAMADAR, JJ.
JUDGMENT RESERVED ON : 29th SEPTEMBER, 2021
JUDGMENT PRONOUNCED ON : 1st OCTOBER, 2021
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JUDGMENT : (Per N.J.Jamadar, J.)
1. Rule. Rule made returnable forthwith and, with the consent of
the counsels for the parties, heard fnalll.
2. The challenge in this petition is to an order dated 1st Mal, 2021
passed bl the Superintendent, Nashik Road Central Prison, Nashik-
respondent No. 2, wherebl the application of the petitioner for
releasing him on parole in accordance with the Rule 19(1)(c)(ii) of
the Maharashtra Prisons (Maharashtra Furlough and Parole) Rules,
1959 (Rules, 1959) came to be rejected.
3. The background facts necessarl for the determination of this
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petition can be stated in brief as under:
a] In Sessions Case No. 159 of 1993, the petitioner came to be
convicted bl the Sessions Court, Mumbai for the offence punishable
under section 302 read with 34 of Indian Penal Code, 1860 and
sentenced to suffer imprisonment for life and pal fne of Rs. 5,000/-
with default stipulation, bl judgment and order dated 20 th Jull,
2004.
b] In the wake of Covid 19 pandemic, the petitioner preferred an
application for release on emergencl parole. Bl the impugned order,
the Superintendent, Nashik Road Central Prison, wherein the
petitioner has been lodged, was persuaded to reject the application
holding, inter alia, that adequate safetl measures have been taken in
the prison and all the prisoners above 45 lears of age have been
vaccinated, and the petitioner did not fulfl the criteria for release as
the petitioner had not returned to prison, on time, on four occasions,
in the past. In the lear 2016, when the petitioner was released on
parole, the petitioner had overstaled bl 2093 dals and was
required to be apprehended and brought back to the prison to
undergo the remainder of the sentence. Hence, the petitioner was
not entitled to be released on emergencl parole.
c] Being aggrieved, the petitioner has invoked the writ
jurisdiction of this Court.
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4. We have heard Ms. Sharda Chate, learned counsel for the
petitioner and Mrs. Shinde, learned APP at length. With the
assistance of the learned counsels for the parties, we have perused
the material on record including the impugned order and the report
submitted bl Superintendent, Prison to which a chart containing the
details of incarceration of the petitioner is annexed.
5. Ms. Chate, advanced a two-pronged submission. First, the fact
the petitioner had overstaled, when he was released on furlough or
parole in the past, is not germane for the determination of the
praler for emergencl parole. It was submitted that the petitioner
had alreadl been penalized bl striking his name off the remission
register and permanentll debarring him from claiming beneft of
remission. Second, while considering the entitlement for release on
parole, what matters is the conduct of the prisoner in the prison.
Since, the petitioner has been issued a certifcate for commendable
conduct inside the prison, the authoritl could not have rejected the
application for emergencl parole.
6. In opposition to this, Mrs. Shidne, learned APP invited our
attention to the provisions of Rule 19(1)(c), introduced vide
Notifcation dated 8th Mal, 2020, especialll the condition that the
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convict should have returned to prison on time on the previous two
releases, either on parole or furlough. Laling emphasis on the said
condition, Mrs. Shinde, would urge that respondent No. 2 was within
his rights in declining to release the petitioner on emergencl parole
as the petitioner had overstaled for lears together.
7. The chart of incarceration of the petitioner reveals that the
petitioner had not returned to prison on time on previous four
occasions:
No. Year Period of overstal Remarks
1 2006 238 dals Surrendered suo moto
2 2008 409 dals Arrested bl police
3 2009 46 dals Arrested bl police
4 2010 2093 dals Arrested bl police
8. The aforesaid chart would indicate that the petitioner had
never returned to prison on time. On three occasions, the petitioner
was required to be apprehend and brought back to prison. In the
circumstances, the aforesaid conduct of overstal, especialll the last
one wherein the petitioner staled awal from the prison for almost
six lears, cannot be said to be irrelevant and inconsequential.
9. We fnd substance in the submission of Mrs. Shinde, learned
APP, that under the Rules one of the condition which a prisoner is
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required to fulfll to get the beneft of emergencl parole is return to
the prison on time, on two previous occasions. Evidentll, this
prescription is with a view to ensure that the prisoner would return
to prison after the period of emergencl parole is over, and the
assurance about such future conduct of the prisoner is sought to be
drawn from the past conduct of the prisoner.
10. We are, therefore, not persuaded to accede to the submission
on behalf of the petitioner that the fact that the prisoner had not
returned to prison, on time, in the past, has no bearing upon the
claim for release on emergencl parole. Undoubtedll, the petitioner's
name has been struck off from the remission register. Yet, we are
afraid to agree with the submission on behalf of the petitioner, in the
peculiar facts of the case, that the factum of overstal cannot be
construed against the petitioner as his name has been struck off the
remission register.
11. Ms. Chate invited the attention of the Court to a decision in
the case of Sherkhan Mirbas Khan Pathan vs. The State of
Maharashtra, Criminal Writ Petition No. 513 of 2021 dated 3 rd Mal,
2021 wherein this Court had directed the release of the convict on
emergencl parole despite the convict having overstaled for a period
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of 677 dals on the ground that the petitioner therein was alreadl
saddled with penaltl of denial of remission. Reliance was also placed
on the judgment of this Court in the case of Pratik Ambadas Borase
vs. The State of Maharashtra, Criminal Writ Petition No. 3029 of
2020 dated 17th December, 2020. In the said case, the petitioner
therein had also reported late to prison.
12. In our view, the judgments in aforesaid cases, do not advance
the cause of the petitioner. The judgments are clearll
distinguishable on facts. In the case at hand, not onll there is
persistent default in returning back to prison on time but the period
of overstal is also huge. The petitioner had remained out of prison
for almost eight lears. In the circumstances, in our view, the
respondent No. 2 was justifed in declining to release the petitioner
on emergencl parole on account of the persistent and prolonged
overstal. No fault can be found with the impugned order.
13. For the foregoing reasons, no interference is warranted in the
impugned order. The petition, therefore, deserves to be dismissed.
Hence, the following order.
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ORDER
a] The petition stands dismissed.
b] Rule stands discharged.
(N.J. JAMADAR, J.) (S.S. SHINDE, J.)
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