Devidas Bhimrao Borse vs The State Of Maharashtra And Anr
2021 Latest Caselaw 12756 Bom

Sherla V.
                                                                               17_wp.2727.2021 (J).doc
  VISHWANATH
  SATYANARAYANA
  SHERLA

      Digitally signed by           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
      VISHWANATH
      SATYANARAYANA
      SHERLA
                                              CRIMINAL APPELLATE SIDE
      Date: 2021.09.07
      15:15:43 +0530
                                       CRIMINAL WRIT PETITION NO.2727 OF 2021

                            Devidas Bhimrao Borse                                )
                            age: 53, occ.: -                                     )
                                                                                 )
                            r/at - At & Post: Vagir - Kheda
                                                                                 )     ... Petitioner
                            Taluka - Malegaon, District - Nashik                 )
                            (At present lodged at Nashik Road Central            )
                            Prison)                                              )
                                        Vs.
                            1) State of Maharashtra                              )
                            Through Chief Secretary, Home Department,            )
                                                                                 )
                            Mantralaya, Mumbai.
                                                                                 ) .. Respondents
                                                                                 )
                            2) The Superintendent of Nashik Road Central         )
                            Prison, Nashik                                       )



                            Ms.Aisa Ansari for the Petitioner

                            Mrs.M.H. Mhatre, APP, for Respondent - State


                                                     CORAM: S.S. SHINDE &
                                                            N.J. JAMADAR, JJ.

                                  JUDGMENT RESERVED ON: SEPTEMBER 3, 2021
                                 JUDGMENT DELIVERED ON: SEPTEMBER 7, 2021


                            JUDGMENT (PER S.S. SHINDE, J.):

1. Rule. Rule made returnable forthwith with the consent of the

learned Counsel appearing for the parties and heard finally.

17_wp.2727.2021 (J).doc

2. By this Writ Petition, the petitioner has challenged the order

passed by Respondent No.2 - Superintendent of Jail, dated 29 th

May, 2021 whereby the application of the petitioner for grant of

emergency Covid - 19 parole for 45 days was rejected.

3. The petitioner is a convict undergoing sentence of life

imprisonment. The petitioner has been in jail for more than 6

years.

4. In view of the Covid-19 pandemic and the amendment in the

Prisons (Bombay Furlough and Parole) Rules, 1959, the petitioner

applied for grant of emergency Covid-19 parole, which was

rejected by Respondent No.2 - Superintendent of Jail, Nashik

Road Central Prison, District Nashik vide order dated 4 th June,

2020. The said application was rejected by the aforesaid

impugned order on the ground that the petitioner had overstayed

the period of furlough leave and had to be arrested and brought

back to the prison through police. The petitioner challenged the

said order dated 4th June, 2020 by filing Criminal Writ Petition

No.192 of 2021 in this Court, however, the same was rejected vide

order dated 16th February, 2021. Thereafter, the petitioner

preferred another application for Covid-19 Emergency Parole

17_wp.2727.2021 (J).doc

leave on 21st May, 2021, which was rejected on 29th May, 2021 on

the ground that on 17.11.2014, the petitioner had reported late by

25 days to the prison and on 11.8.2016, he reported late by 158

days. It is also apprehended that there is possibility that the

petitioner may abscond if he is granted emergency parole.

5. The learned Counsel appearing for the Petitioner submitted

that on the first occasion, i.e., 17 th November, 2014, the petitioner

surrendered to jail on his own after 25 days because he had met

with an accident. On the second occasion i.e., 11 th August, 2016,

his mother was suffering from Cancer and, therefore, he had

reported late to the prison by 158 days. It is submitted that the

Superintendent of Nashik Road Central Prison failed to consider

that for late surrender by the petitioner, a case has been filed

under section 224 of the Code of Criminal Procedure before the

Sessions Court, Malegaon which is yet to be decided as to

whether the petitioner has actually absconded or not. He has,

therefore, submitted that the concerned authority should have

taken into account the said case and that it is pending before the

competent Court. The learned Counsel also submitted that during

the trial, the petitioner was on bail for about 5 years and he had

17_wp.2727.2021 (J).doc

never absconded and after his conviction under section 302 of the

Indian Penal Code, he surrendered to the jail. The learned

Counsel has, therefore, prayed that since last 5 years, he has not

been released on any leave and considering the present pandemic

and his age, he may be granted parole leave on the terms and

conditions as this Court may deem fit and proper.

6. On the other hand, the learned Public Prosecutor appearing

for the State, opposed the petition for grant of emergency Covid-

19 parole. She invited our attention to the impugned order and

submitted that there is no overcrowding in the Nasik Road Central

Prison. There is a separate ward to treat the Covid patients. All

the convicts/under-trial prisoners above 45 years have been

vaccinated. All possible care to prevent the spread of Covid-19

virus is being taken in the said prison and, therefore, the petitioner

is not entitled for the Covid-19 emergency parole. It is submitted

by the learned APP that when the petitioner was released on

furlough on 17th November, 2014, instead of reporting back within

time, he overstayed for 25 days outside the prison. On 11 th

August, 2016, the petitioner was granted furlough, however, he did

not report in time and surrendered late by 158 days. In case, the

17_wp.2727.2021 (J).doc

petitioner is released, there is possibility of absconding. The

Criminal Writ Petition No.192 of 2021 filed by the petitioner on the

same set of facts and grounds has been already rejected by this

Court on 16th February, 2021.

7. We have given careful consideration to the rival

submissions. With the able assistance of the learned Counsel

appearing for the petitioner and the learned APP appearing for the

Respondent - State, carefully perused the reasons assigned in the

impugned order, the grounds taken in the petition, the annexures

thereto and the order passed by this Court on 16 th February, 2021

in Criminal Writ Petition No.192 of 2021 filed by the present

petitioner and this Court is of the opinion that the petition deserves

no consideration for the following reasons:

Firstly, the petitioner herein had filed a Criminal Writ Petition

No.192 of 2021 on the same grounds, which was rejected by this

Court (Coram: S.S. Shinde & Manish Pitale, J.) on 16 th February,

2021.

Secondly, the ground taken by the petitioner that when he

was released on furlough on 11 th August, 2016, he overstayed for

17_wp.2727.2021 (J).doc

158 days over and above the period for which he was granted

furlough, however, an offence was registered against him under

section 224 of the Code of Criminal Procedure and, therefore, the

said reason that he overstayed for 158 days cannot be cited while

entertaining his prayer for Covid-19 emergency parole. In this

respect, it needs to be mentioned that the said ground was

available when the aforesaid Criminal Writ Petition No.192 of 2021

filed by the petitioner was heard and decided.

There is no new ground raised which requires modification of

the order dated 16th February, 2021. While rejecting the said

petition, no liberty was granted to the petitioner to file the present

petition.

8. Apart from the aforesaid reasons, it appears that all the

convicts in the Nashik Road Central Prison are vaccinated and

proper care is being taken to prevent the spread of Covid-19 virus.

It is submitted by the learned APP appearing for the State that the

number of convicts / under-trial prisoners in the said prison are not

more than its capacity and there is no overcrowding as such. In

that view of the matter, we are unable to persuade ourselves to

grant any relief to the petitioner. In case the petitioner is released

17_wp.2727.2021 (J).doc

on parole, there is every possibility of him absconding keeping in

view the past experience when he was released on

furlough/parole. Hence, no case is made out. The petition stands

rejected.

9. The Writ Petition stands disposed of accordingly.

     (N.J. JAMADAR, J.)                          (S.S. SHINDE, J.)