Sahebrao Kaluram Bhintade vs The State Of Maharashtra
2021 Latest Caselaw 13243 Bom

1/12                                                        CRI-WP-2501-2021-J.doc




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL WRIT PETITION NO. 2501 OF 2021
Sahebrao Kaluram Bhintade
Age : 73 years, Occu. : Farmer
Permanent R/o. 203/204A,
Dhanlaxmi Co-operative
Society, Mohili Village,
Sakinaka, Mumbai                               .... Petitioner
Versus
1. The State of Maharashtra
Through its Additional Secretary,
Home Department,
Mantralaya, Mumbai-32.

2. The Director General of Prisons,
MS, Mumbai.

3. The Superintendent of Prisons,
Kolhapur Central Prison,
Kalamba, Kolhapur.                                    ....Respondents
                                    ****
Ms.Madhavi Ayyappan i/b Talekar and Associates for petitioner.
Smt. A.S. Pai, PP for respondents.
                                    ****
                    CORAM : S. S. SHINDE &
                        N.J. JAMADAR, JJ.

Reserved for Judgment on : 26th August 2021.

Judgment pronounced on : 16th September 2021.

JUDGMENT : (PER N.J. JAMADAR)

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

learned counsels for the parties, heard finally.

2. This petition under Article 226 of the Constitution of India assails the

Shraddha Talekar PS

2/12 CRI-WP-2501-2021-J.doc

order dated 7th May 2021, whereby the prayer of the petitioner to release

him on emergency parole, in accordance with Rule 19(1)(C)(ii) of Prisons

(Bombay Furlough and Parole) Rules, 1959 ('Rules, 1959'), came to be

rejected. The petitioner has also prayed that the exception carved out by

the proviso to the said rule which debars the prisoners convicted for serious

economic offences or offences under Special Acts like MCOC, PMLA, MPID,

NDPS, UAPA etc. from availing the benefit of the said provision be read

down to hold that at least the convicts (from the excluded categories), who

are 65 years of age and above, are entitled to the benefit of the said rule.

3. The petition arises in the backdrop of the following facts :

(a) The petitioner is a 73 years old convict. He claims to

be suffering from several co-morbidities. By the judgment

and order dated 31st August 2012 in MCOC Case No.

7/2008, the petitioner came to be convicted inter alia for

the offence punishable under section 3(2) of The

Maharashtra Control of Organised Crime Act, 1999 ('MCOC')

and sentenced to suffer imprisonment for life. The petitioner

has been incarcerated since 29th April 2008.

(b) By the order dated 29 th May 2020, the petitioner was

released on furlough for a period of 28 days. The petitioner

sought extension of the period of furlough leave. However,

Shraddha Talekar PS

3/12 CRI-WP-2501-2021-J.doc

the authorities did not take any decision thereon. The

petitioner was thus constrained to prefer writ petition being

Criminal Writ Petition ASDB-LD-VC No.139 of 2020. By

order dated 10th July 2020, the said writ petition came to be

disposed with a direction to the authorities to decide the

application preferred by the petitioner within a period of 15

days thereof, keeping in view the age of the petitioner and

the several ailments, which the petitioner claimed to be

suffering from, and the period of the sentence undergone by

him.

(c) By an order dated 4th August 2020, the competent

authority rejected the prayer for extension of furlough leave

on the premise that furlough cannot be granted for more

than 21/28 days in one calender year.

(d) The petitioner surrendered and applied for emergency

parole under Rule 19(1)(C)(ii) of the Rules, 1959. By the

impugned order dated 7th May 2021, the petitioner's

application came to be rejected, by invoking the proviso to

Rule 19(1)(C), which excludes the prisoners, convicted for

serious economic offences and offences under special acts

like MCOC from the applicability of the rule which

Shraddha Talekar PS

4/12 CRI-WP-2501-2021-J.doc

empowers the authorities to release the prisoners on

emergency parole on account of Covid-19 Pandemic.

(e) The petitioner has again invoked writ jurisdiction of

this Court on the ground that the authorities have failed to

take into account the new guidelines of the High Power

Committee, especially Clause 16(v) of the Minutes of the

meeting dated 7th/11th May 2021. Under the said guidelines,

according to the petitioner, the authorities are enjoined to

consider the cases of the prisoners above 65 years of age and

having co-morbidities more sympathetically notwithstanding

the rejection of their earlier applications. The authorities also

lost sight of the fact that the State of Maharashtra has taken

a stand before the Supreme Court in Suo Motu Writ Petition

(C) No.1/2020, that the State has taken into consideration

the age of the convicts and the co-morbidities suffered, if

any, at the time of recommending the release of the

prisoners from jails. Even otherwise, the convicts above 65

years of age form a class by themselves. Therefore, in order

to achieve the object behind introducing Rule 19(1)(C) in

the wake of Covid-19 Pandemic, the proviso to the said rule

is required to be read down and the convicts who fall within

Shraddha Talekar PS

5/12 CRI-WP-2501-2021-J.doc

the ambit of the proviso, but are 65 years of age and above,

are required to be extended the benefit of the said rule.

4. We have heard Ms.Madhavi Ayyappan, the learned counsel for the

petitioner and Smt. A.S. Pai, the learned Public Prosecutor for the

respondents. With the assistance of the learned counsels for the parties, we

have perused the material on record including the orders passed by this

Court in the previous proceedings initiated by the petitioner.

5. The thrust of the submission of Ms. Ayyappan was that a prisoner

who has been convicted for the offences punishable under special

enactments like MCOC, PMLA, MPID, NDPS, UAPA etc, enumerated in the

proviso to Rule 19(1)(C)(ii) of the Rules 1959, cannot be debarred from

claiming the benefit under the Rules de-hors the circumstances personal

and peculiar to such convicts. A very rigid and strict interpretation of the

proviso would defeat the very object of introducing the said rule. The

prisoners, who are above 65 years of age and have co-morbidities, are at a

greater risk of being infected by the contagion. The object of

decongestation of prison to arrest the spread of the virus amongst the

prisoners would be defeated if such prisoners are debarred from claiming

emergency parole, urged Ms. Ayyappan. A purposive interpretation,

according to Ms. Ayyappan, is warranted in the circumstances like the

Shraddha Talekar PS

6/12 CRI-WP-2501-2021-J.doc

present one, where the convict is 72 years old and suffering from co-

morbidities. Moreover, the overall conduct of the prisoner also merits

consideration. Since the petitioner has reported back to prison on due date,

on all the eight occasions in the past, there is no justifiable reason to deny

the benefit of emergency parole, submitted Ms. Ayyappan.

6. In opposition to this, Smt. Pai, the learned Public Prosecutor would

urge that the authorities were fully justified in rejecting the prayer for

emergency parole. Indubitably, the proviso to Rule 19(1)(C)(ii) disentitles

the prisoner convicted for the economic offences and the offences

punishable under special enactments from being released on emergency

parole. It was urged that the said proviso is required to be appreciated in

the light of the fact that the special enactments enumerated therein contain

additional restrictions in the matter of release on bail, even during trial.

Having regard to the gravity of the offences, the rule making authority has

consciously excluded the category of prisoners who do not deserve the

dispensation of emergency parole. Thus, no fault can be found with the

impugned order.

7. In order to properly appreciate the aforesaid submission, we deem it

appropriate to note the provisions of Rule 19(1)(C) and the

recommendations of the High Power Committee, on which a very strong

reliance is placed on behalf of the petitioner.

Shraddha Talekar PS





 7/12                                                                    CRI-WP-2501-2021-J.doc

8. Rule 19(1)(C)(ii) of Rules, 1959 reads as under :

"19 When a prisoner may be released on emergency parole:-

(1) Emergency Parole -

(C) On declaration of epidemic under the Epidemic Diseases Act, 1897, by State Government: .....

(ii) For convicted prisoners whose maximum sentence is above 7 years shall on their application be appropriately considered for release on emergency parole by Superintendent of Prison, if the convict has returned to prison on time on last 2 release (whether on parole or furlough), for the period of 45 days or till such time that the State Government withdraws the Notification issued under the Epidemics Diseases Act, 1897, whichever is earlier. The initial period of 45 days shall stand extended periodically in blocks of 30 days each, till such time that the said Notification is in force (in the event the said Notification is not issued within the first 45 days). The convicted prisoners shall report to the concerned police station within whose jurisdiction they are residing once in every 30 days:

Provided that the aforesaid directions shall not apply to convicted prisoners convicted for serious economic offences or bank scams or offences under Special Acts (other than IPC) like MCOC, PMLA, MPID, NDPS, UAPA, etc. (which provide for additional restrictions on grant of bail in addition to those under the Code of Criminal Procedure, 1973 (2 of 1974) and also presently to foreign nationals............."

9. Clause 16 of the minutes of meeting of High Power Committee reads

as under :

"16 Having regard to the facts and circumstances and having taken stock of the entire situation arising out of the "second wave" of corona virus (Covid 19), this Committee issues the following guidelines/ recommendations :

(i) The decisions taken in the HPC meetings dated 25th March, 2020 and 11th May 2020 read with Corrigendum dated 18th May 2020 setting out the category of prisoners to be released on interim bail or emergency parole are reiterated and shall continue to operate.

(ii) The 12,751 Applications for interim bail which are still pending before the various Courts and all other applications for

Shraddha Talekar PS

8/12 CRI-WP-2501-2021-J.doc

interim bail filed during the interregnum claiming benefit of the decisions of the High Power Committee shall be decided within 10 days from today i.e. on or before 20 May 2021.

(iii) All pending Applications before the Authorities for emergency parole be also decided within a period of 10 days from today i.e. on or before 20th May 2021.

(iv) Considering the change in the circumstances, the 2,182 prisoners, whose Applications for interim bail were rejected, may apply for interim bail afresh and the same shall be considered by the Court without being influenced by the earlier orders passed by the Courts.

(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."

10. Evidently the proviso carves out the categories of prisoners who have

been convicted for serious economic offences and offences under special

enactments like MCOC, PMLA, MPID, NDPS, UAPA, etc. from the

applicability of the rule which provides for release on emergency parole.

11. Ms.Ayyappan urged that the aforesaid proviso is required to be

construed in the light of the guidelines issued by the High Power

Committee, especially clause 16(v), extracted above, whereby the

authorities have been directed to consider the cases of those prisoners who

are 65 years of age and above and have co-morbidities more

sympathetically. Support was sought to be drawn from the order passed by

the Supreme Court on 16th July 2021 in Suo Motu Writ Petition (C)

No.1/2020, whereby the the Member Secretaries of the National Legal

Shraddha Talekar PS

9/12 CRI-WP-2501-2021-J.doc

Services Authority and the States Legal Services Authorities were directed

to collect information from the different States/Union Territories and

submit a report stating clearly the norms/criteria adopted by the different

State Governments/Union Territories, i.e., whether in the norms adopted,

they have taken into consideration the age of the convicts and/or co-

morbidities suffered, if any, at the time of recommending the release of the

prisoners from jails.

12. Ms Ayyappan invited the attention of the Court to the affidavit filed

on behalf of the State Government, wherein it was specifically affirmed

that the age of the convict and/or co-morbidities suffered, if any, at the

time of release of the prisoners from the jail, are taken into consideration

by the State of Maharashtra. Reliance was sought to be placed on the afore-

extracted clause 16(v) of the guidelines dated 7th/11th May 2021.

13. At the outset, we must note that though initially the petitioner

claimed that he was suffering from co-morbidities and thus entitled to be

favourably considered for release on emergency parole, in addition to the

ground of being above 65 years of age, yet during the course of the

submissions, Ms. Ayyappan restricted the challenge to that of being above

65 years of age only. It would be relevant to note that a certificate issued by

the Medical Officer was annexed to the report submitted by the respondent

No.3-the Superintendent of Prisons, Kolhapur Central Prison, Kalamba,

Shraddha Talekar PS

10/12 CRI-WP-2501-2021-J.doc

Kolhapur. The Medical Officer certified that the petitioner had not been

suffering from any chronic illness and was not receiving any active line of

treatment. He was clinically stable.

14. In the context of thrust of the submission on behalf of the petitioner,

that the above-extracted guideline provides for release of the prisoners,

whose cases are covered by the proviso to Rule 19(1)(C)(ii) of Rules, 1959,

if they are above 65 years of age, it is imperative to note that the clauses in

the guidelines are required to be construed as a whole. One clause of the

guidelines cannot be read torn out of context. The sequence of the

guidelines also deserves to be noted.

15. Evidently, the High Power Committee, under Clause (i), extracted

above, reiterated in emphatic terms that the decisions taken in the

previous meetings of HPC setting out the categories of prisoners to be

released on interim bail or emergency parole shall continue to operate. The

HPC, thus, did not tinker with the categorization of the prisoners, as

determined earlier, for entitlement for interim bail or emergency parole.

Clause 16 (v) of the guidelines, on which a very strong emphasis was laid

on behalf of the petitioner, also indicates that the HPC did not intend to

vary the categorization of the prisoners. It thus provides that the

applications by the prisoners who are in the category as determined by the

HPC and are above 65 years of age and have co-morbidities, shall be

Shraddha Talekar PS

11/12 CRI-WP-2501-2021-J.doc

considered more sympathetically notwithstanding the rejection of their

earlier applications.

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.

17. In our view, the intent of rule making authority in not extending the

benefit of release on emergency parole for the prisoners who have been

convicted for serious economic offences and offences punishable under

special enactments, is required to be given full effect to. There is a definite

rationale behind such exclusion. We are, thus, not persuaded to agree with

the submission on behalf of the petitioner that the proviso be read down so

as to carve out an exception to the prisoners, who are 65 years of age and

above and are suffering from co-morbidities.

18. For the foregoing reasons, we do not find any justifiable reason to

Shraddha Talekar PS

12/12 CRI-WP-2501-2021-J.doc

interfere with the impugned order passed by the respondent No.3. Even

otherwise, the situation which arose on account of Covid-19 Pandemic has

eased of. At this juncture, we do not find any exceptional or extraordinary

circumstance to direct the release of the petitioner on emergency parole

despite the prohibition in the Rules, 1959.

19. Hence, the following order :

ORDER

(a) The petition stands dismissed.

(b) The petitioner is, however, at liberty to apply for

furlough and/or parole, in accordance with the governing

rules, and the authorities shall decide such a prayer in

accordance with the law, without being influenced by any of

the observations made hereinabove.

Rule stands discharged.

[ N.J. JAMADAR, J. ]                                         [ S.S. SHINDE, J.]




Shraddha Talekar PS