Bombay High Court
Shaikh Abdul Gaffur Babamiya vs The State Of Maharashtra And ... on 11 April, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
{1}
crwp495.22..odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 495 OF 2022
Shaikh Abdul Gaffur Babamiya,
age: 71 years, Occ: Nil,
R/o Ranjangaon, Samepunji,
Tq. Gangapur, District Aurangabad
(Petitioner is father of Convict
Shaikh Rafq, C-5343,
At present Paithan Open Prison) Petitioner
Versus
01 The State of Maharashtra,
through its Secretary,
Home Department,
Mantralaya, Mumbai-400 032.
02 The Superintendent,
of the Open Prison at Paithan,
District Aurangabad. Respondents
Mrs. S. P. Chate, advocate for the petitioner
Mr. S. S. Dande, APP for the Respondents.
CORAM : V.K.JADHAV AND
SANDIPKUMAR C. MORE, JJ.
DATE : 11th April, 2022.
ORAL JUDGMENT (PER V.K. JADHAV. J.):
1 Rule. Rule returnable forthwith. By consent, heard
fnally at admission stage.
2 This petition is fled by the petitioner, who is father of
::: Uploaded on - 12/04/2022 ::: Downloaded on - 13/04/2022 04:27:58 :::
{2}
crwp495.22..odt
convict Shaikh Rafq (Convict-5343) for issuing direction to the
Respondent-authorities to release his son/the convict on
emergency parole.
3 In terms of the notifcation dated 8.5.2020 issued by
the State Government on the backdrop of outbreak of COVID-19
pandemic situation, the convict has fled leave application for
emergency parole to the respondent authorities, however, the
respondent authorities rejected the leave application by the
impugned order solely on the ground that in terms of the said
notifcation the convict ought to have availed either furlough or
parole leave in the past and that the convict ought to have returned
to jail in time on such last two occasions. It is further observed by
the respondent authorities that the convict is presently in the
open jail at Paithan and at present there are less number of
inmates compared to the capacity of 500 inmates in the open jail.
4 Learned counsel for the petitioner submits that this
issue is no longer res integra in view of the judicial pronouncement
of this court (Coram: T. V. Nalawade and Shrikant D. Kulkarni,
JJ.) in criminal writ petition No. 571 of 2020 decided on
30.6.2020, (Kavita w/o Dilip Baviskar vs. State of Maharashtra),
::: Uploaded on - 12/04/2022 ::: Downloaded on - 13/04/2022 04:27:58 :::
{3}
crwp495.22..odt
and thereafter in various cases, this court has interpreted the
conditions laid down in the aforesaid Government notifcation and
held that the said condition is to ensure that the prisoner should
return the jail on his own in time after emergency parole period is
over. Learned counsel submits that even though there are less
number of inmates in the open jail at present, however, it cannot
be ignored that most of the inmates in the open jail came to be
released on emergency parole leave and there is no reason for the
respondent authorities to discriminate the convict for the reason
that there are less number of inmates in the open jail at present,
as compared to the capacity of open jail of 500 inmates.
5 Learned A.P.P., appearing for the respondent-
authorities, has supported the order passed by the respondent
authority by referring the conditions as laid down in the
notifcation dated 8.5.2020.
6 We have carefully gone through the judgment and
order passed by this Court in the case of Kavita w/o Dilip Baviskar
vs. State of Maharashtra (supra). This court in para 4 and 5 of the
said judgment has made the following observations:-
::: Uploaded on - 12/04/2022 ::: Downloaded on - 13/04/2022 04:27:58 :::
{4}
crwp495.22..odt
"4. In the notifcation dated 8 th May 2020, the State
Government has given direction to the Jail Authority to
see that the prisoners, who are behind the bars, are
released on emergency parole in view of the situation
created by pandemic of Covid-19 virus. In the said
notifcation, there is condition that the prisoner, who is
otherwise eligible to get furlough or parole leave, can
get the beneft of this notifcation, provided that in the
past he was released from jail on furlough or parole
leave on two occasions and on all the occasions, he had
surrendered in time.
5. Due to the aforesaid condition, peculiar and
strange circumstance is created as against prisoner,
like present petitioner, even if he has been actually
behind the bar for more than 11 years. The petitioner
was granted furlough leave only once and on that
occasion he turned up in time. He did not avail
furlough leave on other occasion and not claiming the
furlough leave on other occasion cannot make him dis-
entitled to claim the beneft of the aforesaid
notifcation. The purpose behind putting such
condition can be only to ensure that the prisoner will
surrender in time after expiry of emergency parole
period. There cannot be any other intention behind
such a condition."
7 We agree with the view expressed on earlier occasion
by the Division Bench that said condition is prescribed to ensure
::: Uploaded on - 12/04/2022 ::: Downloaded on - 13/04/2022 04:27:58 :::
{5}
crwp495.22..odt
the timely return of the prisoner, who has been granted emergency
parole leave on account of outbreak of Covid-19. It would be
ridiculous to read the said condition as condition barring the
prisoner to apply for emergency parole leave for the reason that on
earlier occasion they were not released on parole or furlough leave.
Apart from this, we agree with the submissions made by learned
counsel for the petitioner that the respondent authorities cannot
make discrimination as against the convict for the reason that the
convict can very well stay in open jail safely by maintaining social
distance, as at present less number of inmates are there in the
open jail since others have been granted emergency parole leave by
giving beneft of the aforesaid notifcation.
8 In view of above, we are inclined to allow this writ
petition. Hence, we proceed to pass the following order:-
ORDER
I. Criminal Writ Petition is hereby allowed.
II. Impugned order, rejecting emergency parole to the son of the
petitioner, namely Shaikh Rafq (C-5343), is hereby quashed
{6}
crwp495.22..odt
and set aside.
III. Application fled by the convict - Shaikh Rafq for emergency
parole under Government Notifcation dated 8th May, 2020, is
hereby allowed.
IV. The convict - Shaikh Rafq be released on emergency parole
on usual terms and conditions within seven days from today.
V. Rule made absolute in the above terms.
VI. Authenticated copy of this order may be supplied to both the
sides.
(SANDIPKUMAR C. MORE) (V.K.JADHAV)
JUDGE JUDGE
adb
