Rajkumari W/O Sherbahadur Giri ... vs The State Of Maharashtra
2021 Latest Caselaw 13342 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL WRIT PETITION NO. 3008 OF 2021

Rajkumari w/o Sherbahadur Giri
(Petitioner Son Anil S/o Sherbahadur Giri
Convict No. 5586 confned at Central Jail
Kalamba, Kolhapur)
Age- 59 Years, Occ- Housewife,
R/o: Room No. 11, Near Hanuman Mandir,
Taksshila Society, Malad East, Mumbai.                           ...PETITIONER

         Versus

The State of Maharashtra
Through Superintendent
Central Prison, Kalamba, Kolhapur.                ...RESPONDENT
                                  ...
Mr. Rupesh Jaiswal for Petitioner.
Mr. K.V. Saste, APP for State.
                                  ...
                          CORAM : S. S. SHINDE &
                                      N. J. JAMADAR, JJ.

RESERVED ON : 13th SEPTEMBER, 2021.

PRONOUNCED ON: 17th SEPTEMBER, 2021.

JUDGMENT: [PER S. S. SHINDE, J.]

1. This petition is fled by the mother of the convict taking

an exception to the order dated 01.07.2021 passed by respondent,

thereby rejecting the application of the convict for Covid-19

emergency parole.

2. It is the case of the petitioner that the convict was earlier

released on furlough/parole and there was no breach of the

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conditions imposed upon him.

3. It is the case of the petitioner that, yhe convict was

arrested on 21.04.2008. He was tried for the offences punishable

under Section 302, 452 of IPC and was sentenced to suffer life

imprisonment by judgment and order dated 31.08.2012. It is the

case of the petitioner that though the convict was charged for the

offence punishable under Maharashtra Control Of Organised Crime

Act, 1999 (hereinafter referred to as "MCOCA"), however, by

judgment and order dated 09.12.2019 in Criminal Appeal No.

1015/2012, the convict acquitted from the offence punishable under

MCOCA. It is submitted that the application fled by the convict has

been rejected on the ground that in case the convict is released

there may be possibility of breach of peace in the society.

4. It is submitted that in the wake of crisis arising out of

spread of Covid-19 virus having regard to Article 21 of the

Constitution of India, the Hon'ble Supreme Court had issued

various directions in relation to the overcrowding of prisons and

remand homes on 23.03.2020. In pursuance to the directions of

Hon'ble Supreme Court a High Power Committee was constituted on

25.03.2020 by Government of Maharashtra, and in pursuance to

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minutes of meeting of the said committee,Government Notifcation

dated 08.05.2020 was passed, whereby amendment to the Bombay

Furlough and Parole Amendment Rules, 2020 has been made by the

Government Notifcation dated 08.05.2020. It is further submitted

that the convict was released on parole on 12.09.2014 and he

surrendered late by around 300 days for the reason that his father

was suffering from stage four lung cancer, and except his son

(convict) there was nobody to look after him and his hospitalization,

and during that time the father of the convict had died and thus he

surrendered late for that reason only. But, during the said period

the convict has not committed any offence. The name of the convict

is removed from the remission register for his illegal overstay outside

the prison and from more than six years the convict was not

released on furlough/parole, which was not considered by the

respondent while passing the impugned order.

5. It is further submitted that for late surrender by the

convict, the convict is already punished for the same as his name is

removed from the remission register permanently. It is submitted

that this court in number of cases has considered that when there

is incident of late surrender, even then the convict needs to be

released on emergency Covid-19 parole. In support of aforesaid

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submission learned counsel for the petitioner placed reliance upon

judgments in the cases of Sobha Tayade Vs. State of Maharashtra 1,

Navnath Bhosale Vs. State of Maharashtra 2 and Aquino Vs. State of

Maharashtra3. It is submitted by the learned counsel for the

petitioner that presently there are 49 covid positive inmates in

Kalamba Jail and earlier also more than 100 inmates were affected

by the Covid-19 virus. The maximum capacity of said prison to

accommodate the inmates is 30 inmates, but due to over crowding

only 70-80 inmates are kept, and therefore, there is no question of

social distancing. The convict had also suffered from Covid-19 virus

during the period from 30.08.2020 till 12.09.2020.

6. It is submitted that the petitioner being mother of the

convict would be able to control his activities in case the convict is

released on Covid-19 emergency parole. It is further submtted that

the convict is not having concerned with 'Gawli Gang' as alleged by

the respondent. It is submitted that the convict is behind the bars

from last 9 years and 3 months and including remission, has

undergone 10 years and 1 month imprisonment. Therefore, learned

counsel for the petitioner prays that the convict may be released on

1 Cri. WP-ASDB-LDVC No. 87/2020 2 Criminal Writ Petition No. 758/2020 3 Criminal Writ Petition No. 759/2020.

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Covid-19 emergency parole.

7. During the course of hearing, learned counsel appearing

for the petitioner has tendered across the bar affdavit of one Mr.

Amreesh Yadav, who is friend of convict-Anil Giri. The same is taken

on record. Mr. Amreesh Yadav stated in the said affdavit that in

case the convict is released on Covid-19 emergency parole, he is

ready to stand as surety.

8. Pursuant to the notices issued to the respondent,

learned APP caused appearance and submitted a report of

Superintendent, Kolhapur Central Prison, Kalamba. Relying upon

the said report learned APP submitted that proper care is being

taken in the prison so as to prevent the spread of Covid-19 virus.

Everyday premises of said jail are being sanitized. There is separate

room to treat the covid-19 affected inmates and Necessary treatment

is provided to them. It is stated that in the said jail no inmate died

due to Covid-19 virus and in case the convict is released on Covid-

19 emergency parole, he may abscond and will not undergo the

remaining part of sentence.

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9. Learned APP submitted that the convict is associated

with 'Gawli Gang' and it may not be safe to release the convict.

Learned APP pressed into service Sub Rule 11 Rule 4 of the Prisons

(Bombay Furlough and Parole) Rules, 1959. It is submitted that

when the convict was earlier released on furlough/parole, he did not

report back to the jail authority and illegally overstayed for more

than 300 days, and therefore, it may not be proper to release the

convict on Covid-19 emergency parole.

10. We have given careful consideration to the submissions

of learned counsel for the petitioner and learned APP for State. With

their able assistance we have perused pleadings and grounds taken

in the petition, annexures thereto and the report submitted by

Superintendent of Kolhapur Central Prison, Kalamba. It appears

that till the date of submitting report by the Superintendent of

Kolhapur Central Prision, Kalamba, the convict has under gone 7

years 10 months and 3 days imprisonment. The record shows that

the convict was released earlier on 12.09.2014 and he was supposed

to report back to the jail authority on completion of said period, but

he surrendered late and illegally overstayed for 389 days outside the

jail. He did not surrender on his own and police apprehended him

and he was arrested on 20.10.2015 and was brought back to the jail

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His name has been removed form the remission register as it is

apparent from the report submitted by the respondent. In the said

report it is also mentioned that the convict is a member of 'Gawli

Gang' and his release may cause danger to the society.

11. The Respondent by placing reliance on Rule 4 Sub Rule

11 of the Prisons (Bombay Furlough and Parole) Rules, 1959,

rejected the application of the convict for Convid-19 emergency

parole. Rule 4 Sub Rule 11 reads as under:-

*[4. Eligibility for furlough-

All Indian prisoners except from following categories whose annual conduct reports are good shall be eligible for furlough-

                         (1)    xxxx
                         (2)    xxxx
                         (3)    xxxx
                         (11)     Prisoners whose presence is
                         considered dangerous or otherwise
                         prejudicial to public peace and order by
                         the       District      magistrate  and
                         Superintendent of Police;

12. In the peculiar facts and circumstances of this case and

keeping in view the past record of the convict it may not be desirable

to release the convict on Covid-19 emergency parole. As it is evident

from the report submitted by the respondent-authority that proper

care is being taken in the prison to prevent the spread of Covid-19

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virus. Therefore, we are of the considered view that in case the

convict is released on Covid-19 emergency parole there is every

likelihood of him absconding and he may not be available to

undergo his remaining sentence. His release may cause danger to

the safety of the society as it is evident from the report submitted by

respondent-authority.

13. For the reasons aforestated, we are not inclined to

entertain the petition. Hence, the writ petition stands rejected.

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




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