Sameer @ Chintya Vithoba Kadam vs The State Of Maharashtra And Anr
2021 Latest Caselaw 13350 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION

                       WRIT PETITION NO. 3230 OF 2021

Sameer @ Chintya Vithoba Kadam
Age : 34 years, Occ : Nil
Resident of Hanuman Mandir Chol,
Room No.11, Near Shrimiksang,
Above Pipeline, Tembipada Road,
Bhandup (W), Mumbai 400 078.
At present in Nashik Road Central Prison...Petitioner
           vs.
1. The State of Maharashtra
(To be served through the offce of
Learned Public Prosecutor,
High Court, Bombay)

2. The Superintendent,
Nashik Road Central Prison,
Nashik,                                          ...Respondents


Mr.Viral Rathod i/b Prani S. Rawade for petitioner.

Mr. K.V. Saste, APP for State.

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

DATE : 17th SEPTEMBER, 2021

JUDGMENT : (Per : N.J. Jamadar, J)

1. Rule. In view of the limited nature of the challenge, Rule

made returnable forthwith and heard fnally.

Shraddha Talekar, PS                                                             1/5




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2. The petitioner, who has been ordered to be released on

emergency parole, by order dated 24 th June 2021, passed by

respondent No.2-Superintendent, Nashik Road Central

Prison, Nashik, has invoked writ jurisdiction of this Court

being aggrieved by a condition imposed in the said order to

the effect that one of the two sureties, to be furnished by the

petitioner, shall be a government servant.

3. We have heard Mr. Rathod, the learned counsel for the

petitioner and Mr. Saste, the learned APP for the State. With

the assistance of the learned counsels, we have perused the

material on record especially the order dated 24 th June 2021,

whereby the petitioner was ordered to be released on

emergency parole in accordance with Rule 19(1)(C)(ii) of the

Prisons (Bombay Furlough and Parole) Rules, 1959. ("the

Rules, 1959"). Condition No.5 of the said order stipulates that

the petitioner shall furnish cash security of Rs.50,000/- and

a personal recognizance of Rs.10,000/-. In addition, the

petitioner shall furnish two sureties in the sum of Rs.

20,000/- each, one of whom shall be a government servant,

Shraddha Talekar, PS 2/5

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and another a relative.

4. Mr. Rathod, learned counsel for the petitioner submitted

that the aforesaid condition of furnishing surety, who is a

government servant, is harsh and the petitioner's right to be

released on parole is virtually defeated by imposing the said

condition.

5. As against this, Mr. Saste, learned APP supported the

impugned order. It was urged that in order to ensure that

the petitioner returns to prison after completion of the period

of parole leave, the respondent No.2 is justifed in imposing

conditions which include furnishing a solvent surety who can

exercise the control over the petitioner. Mr. Saste, thus,

prayed for dismissal of the petition.

6. We have given our careful consideration to the

submissions advanced across the bar. The circumstances in

which a prisoner fnds himself after a prolonged

incarceration cannot be lost sight of. The condition that the

prisoner should furnish a surety, who happens to be a

Shraddha Talekar, PS 3/5

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government servant, where the roots of the petitioner are

virtually fnished on account of the conviction and

incarceration needs to be kept in view. In a given situation,

such a condition operates onerously.

7. There can be no duality of opinion on the point that the

respondent No.2 is empowered to impose conditions which he

fnds suitable in the backdrop of the case. However, the

purpose for which the surety is insisted upon, in our view,

would be served if an option is given to the petitioner to

furnish a surety, who satisfes description of being an

independent person, with a standing in the society. In any

event, the petitioner has to furnish another surety who is the

relative of the petitioner.

8. In our view, insistence on furnishing, a surety who is a

government servant may, in a given case, frustrate the very

object of directing the release of the prisoner on emergency

parole.

9. Thus, the petition deserves to be allowed by modifying

Shraddha Talekar, PS 4/5

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the condition No. 5 of the order dated 24 th June 2021 to the

aforesaid extent.

10. We are, thus, persuaded to direct that upon complying

with the rest of the conditions, the petitioner be released on

furnishing an independent surety and another surety who is

a family member or relative, instead of a government servant.

11. The petition stands allowed in the aforesaid terms.

Rule made absolute.

All concerned to act on an authenticated copy of this

order.

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




Shraddha Talekar, PS                                                          5/5