Bombay High Court
Sardar S/O Shahvali Khan (C-6608) vs Superintendent Central Prison, ... on 28 October, 2021
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.644 OF 2021
Sardar S/o Shahvali Khan (C-6608),
Age-65 years, Occu:Convict,
R/o-Room No.10/11 Gowawala Chal,
LBS Road, Kurla West, Mumbai-70,
At present confined in Central Jail,
Harsul, Aurangabad.
...PETITIONER
VERSUS
Superintendent, Central Prison,
Harsul, Aurangabad.
...RESPONDENT
...
Mr.Rupesh A. Jaiswal Advocate for Petitioner.
Mr.G.O. Wattamwar, A.P.P. for Respondent.
...
CORAM: V.K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
DATE : 28th OCTOBER, 2021
ORDER :
1. By consent of the parties, heard finally at the admission
stage.
2. This is a third successive writ petition by the petitioner
challenging the order passed by the jail authority rejecting the
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application of the petitioner - convict seeking emergency covid
parole.
3. By order dated 9th September 2020 this Court [Coram: T.V.
Nalawade and M.G. Sewlikar, JJ.] in Criminal Writ Petition
No. 520 of 2020 dismissed the writ petition of the present
petitioner by observing that the petitioner is a convict under the
provisions of TADA and sentenced to life imprisonment and
though specifically TADA is not mentioned in the notification, the
Special Acts are mentioned in minutes of meeting of High Power
Committee, dated 10th May, 2020. It is further observed that in
the amendment to the Rule 4 of the Rules, in clause No.12, it is
mentioned that prisoners, who are considered dangerous or have
been involved in serious prison violence and who are convicted
under Special Acts like Narcotic Drugs and Psychotropic
Substances Act 1985 (NDPS), rape etc., are not entitled to get
the benefit of Rule 4. It is also observed by the Court that
Rule 4, which needs to be read with Rule 19 and it can be said
that in Rule 4, initially there was no category like pandemic
situation created by COVID-19 virus. Only due to Government
Notification dated 9th May, 2020, the prisoners can be considered
for giving them emergency parole and such parole is subject to
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the condition mentioned in the notification itself. It is further
observed that, in view of this circumstance and aforesaid
provisions, it cannot be said that vested right is given to the
prisoners to get parole and some definite exceptions are created
by the State. It is observed in the said order that the list of
Special Acts given in the notification is not exhaustive and other
special enactments which are similar in nature need to be
considered.
4. The petitioner has, thereafter, again approached this Court
by filing Criminal Writ Petition No. 1645 of 2020 seeking
direction to the State Government through the High Power
Committee created under the directions of the Supreme Court in
Suo Motu Criminal Writ Petition No. 1 of 2020 to take decision on
the representation of the petitioner dated 16 th October 2020. In
the said representation the petitioner has requested to consider
his age and also previous conduct in jail and also his conduct
after release on parole and furlough. By order dated 16 th
December 2020, this Court [Coram: T.V. Nalawade and M.G.
Sewlikar, JJ.] dismissed the said writ petition.
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5. Mr. Jaiswal, learned counsel for the petitioner has pointed
out that this Court [Coram: S.S. Shinde and R.G. Avachat, JJ.]
by order dated 7th February 2019 in Criminal Writ Petition
No. 33 of 2019 and Criminal Writ Petition No. 136 of 2019, has
granted furlough leave to the co-accused of the present
petitioner and being aggrieved by the same, the State has
preferred Special Leave to Appeal (Criminal) No. 7192 of 2019
before the Supreme Court. The Supreme Court has observed
that special leave to appeal was filed long after the expiry of 28
days from the date of the aforesaid order and in the meanwhile
the convict had duly been released on furlough due to his
mother's illness. It is further observed that the convict was
released on parole for a period of 28 days and those 28 days
were also over and convict was now in the custody. The Supreme
Court has, thus observed that the special leave petition is, thus,
infructuous and accordingly dismissed the same. However, the
Supreme Court has made it clear that all the questions of law
raised in the special leave petition are kept open.
6. Learned counsel for the petitioner submits that High Power
Committee has issued certain guidelines in terms of the decision
taken in the meeting dated 11 th May 2021 and clause 5 of
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Paragraph 16 is relevant for the present matter. The same is
reproduced herein:-
"(V) Applications by the prisoners who fall in the
category as determined by the HPC and who are 65
years of age and above and having co-morbidities [as
spelt out by Indian Council for Medical Research
(ICMR)], shall be considered more sympathetically
notwithstanding the rejection of their earlier
Application, if any."
7. Learned counsel for the petitioner submits that the
petitioner falls in the said category as determined by the High
Power Committee as he is more than 65 years of age and
entitled for the emergency covid parole. Learned counsel
submits, in addition to that the petitioner is suffering from
arthritics and other illness.
8. Learned APP submits that being aggrieved by the order
passed by this Court (Coram: T.V. Nalawade and M.G. Sewlikar,
JJ.), dated 16th December 2020, in Criminal Writ Petition
No. 1645 of 2020, referred above, the petitioner herein has
approached to the Supreme Court by filing Special Leave to
Appeal (Criminal) No. 1062 of 2021, and after some arguments
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the petitioner withdrew the petition by stating that the issue of
Covid-19 norms now does not survive. The petitioner has also
made a statement before the Supreme Court that he will file the
application for parole in usual course as per the norms.
9. Learned APP submits that in Criminal Writ Petition No.2501
of 2021 (Sahebrao Kaluram Bhintade vs. The State of
Maharashtra), in the identical facts, the Division Bench of this
Court, [Coram: S.S. Shinde and N.J. Jamdar, JJ.], in Para 16 of
the Judgment and order dated 16th September 2021, has
observed thus:-
"16. On a plain reading of the aforesaid guidelines, we
find it rather difficult to accede to the submission on
behalf of the petitioner that by virtue of the aforesaid
guidelines, the HPC resolved to carve out a sub-
category, out of the excluded category of prisoners
under proviso to Rule 19(1)(C)(ii), who would be
entitled to be released on interim bail or emergency
parole, if they are above 65 years of age and have co-
morbidities. In the face of reiteration of categorization
in clause (I) and clause (v) of the guidelines, as
extracted above, it may not be permissible to hold that
the rigour of the proviso to Rule 19(1)(C)(ii) gets
diluted if a prisoner is above 65 years of age and
suffering from co-morbidities."
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10. We have considered the submissions advanced and also
gone through the observations made by this Court in the
petitions filed by the petitioner on earlier occasions. As observed
earlier, When this Court has dismissed Criminal Writ Petition
No. 1645 of 2020, filed by the petitioner, the petitioner has
approached the Supreme Court by filing Special Leave to Appeal
(Criminal) No. 1062 of 2021 and by order dated 11 th February
2021, the Supreme Court has disposed of the said petition as
withdrawn. The petitioner herein has made statement that as the
issue of Covid-19 norms does not really now survive, he will
apply for parole in usual course as per the norms. Even then, by
filing present writ petition the petitioner is again seeking
emergency parole leave by challenging the earlier order passed
by the jail authority.
11. As observed earlier, Division Bench of this Court in Criminal
Writ Petition No.2501 of 2021, in the identical facts, has held
that, it may not be permissible to hold that the rigour of the
proviso to Rule 19(1)(C)(ii) of Prisons (Bombay Furlough and
Parole) Rules, 1959 gets diluted if a prisoner is above 65 years
of age and suffering from co-morbidities.
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12. In the recent case, bearing Criminal Appeal No. 1159 of
2021 (State of Gujarat and another vs. Narayan @ Narayan Sai
@ Mota Bhagwan Asaram @ Asumal Harpalani, the Supreme
Court, vide order dated 20 th October 2021, has made following
observations:-
"15. From a reading of the above provisions it is
evident that the Bombay Furlough and Parole Rules do
not confer a legal right on a prisoner to be released on
furlough. The grant of furlough is regulated by Rule 3
and Rule 4. While Rule 3 provides the eligibility criteria
for grant of furlough for prisoners serving different
lengths of imprisonment, Rule 4 imposes limitations.
The use of the expression "may be released" in Rule 3
indicates the absence of an absolute right. This is
further emphasised in Rule 17 which states that said
Rules do not confer a legal right on a prisoner to claim
to release on furlough. Thus the grant of release on
furlough is a discretionary remedy circumscribed by
Rules 3 and 4 extracted above."
13. It is thus clear that grant of release on furlough is
discretionary remedy circumscribed by Rules 3 and 4 of the
Prisons (Bombay Furlough and Parole) Rules, 1959 and in terms
of Rule 19 of the Rules, the said provisions are made applicable
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to parole. Thus, considering the entire aspect of the case and
particularly the view taken by this Court in Criminal Writ Petition
No. 2501 of 2021 (Sahebrao Kaluram Bhintade vs. The State of
Maharashtra and others) and in terms of ratio laid down by the
Supreme Court in Criminal Appeal No. 1159 of 2021 (State of
Gujarat and another vs. Narayan @ Narayan Sai @ Mota
Bhagwan Asaram @ Asumal Harpalani, we are of the considered
opinion that this writ petition is liable to be dismissed. It is,
however, open for the petitioner to approach the authority
concerned by filing an application for parole in usual course as
per the norms. Hence the following order:-
ORDER
. Criminal Writ Petition is hereby dismissed.
[SANDIPKUMAR C. MORE] [V.K. JADHAV ]
JUDGE JUDGE
asb/OCT21
