Bombay High Court
Rupesh Tulsiram Gaikwad (C-5323) vs The State Of Maharashtra And Another on 1 April, 2021
Bench: Ravindra V. Ghuge, B. U. Debadwar
1 Cri.W.P. 438-2021 & Others 8.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
907 CRIMINAL WRIT PETITION NO.438 OF 2021
NAGESH S/O SHANKAR MATHPATI (C-5317) ..PETITIONER
VERSUS
THE STATE OF MAHARASHTRA & ANOTHER ..RESPONDENTS
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. S. R. Kale
....
AND
908 CRIMINAL WRIT PETITION NO.439 OF 2021
SUDDAM S/O RAMU SANAP (C-5304) ..PETITIONER
VERSUS
THE STATE OF MAHARASHTRA & ANOTHER ..RESPONDENTS
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. K. S. Patil
....
AND
909 CRIMINAL WRIT PETITION NO.440 OF 2021
SOMWAR KALYA VEDGA (C-5314) ..PETITIONER
VERSUS
THE STATE OF MAHARASHTRA & ANOTHER ..RESPONDENTS
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. K. S. Patil
....
AND
910 CRIMINAL WRIT PETITION NO.441 OF 2021
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2 Cri.W.P. 438-2021 & Others 8.odt
DATTA BHIKA TONGARE (C-5303) ..PETITIONER
VERSUS
THE STATE OF MAHARASHTRA & ANOTHER ..RESPONDENTS
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondent Nos. 1 and 2 : Mr. R.V. Dasalkar
....
AND
928 CRIMINAL WRIT PETITION NO.448 OF 2021
SANTOSH VIJAY THORAT (C-5281) ...PETITIONER
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER ..RESPONDENTS
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. S. J. Salgare
....
AND
929 CRIMINAL WRIT PETITION NO.449 OF 2021
ANIL SHRAWAN MORE (C-5296) ..PETITIONER
VERSUS
THE STATE OF MAHARASHTRA & ANOTHER ..RESPONDENTS
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. S.G. Sangle
.......
AND
930 CRIMINAL WRIT PETITION NO.451 OF 2021
HIRAMAN RAMA BHOYE (C-5306) ..PETITIONER
VERSUS
THE STATE OF MAHARASHTRA & ANOTHER ..RESPONDENTS
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3 Cri.W.P. 438-2021 & Others 8.odt
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. K. S. Patil
.....
AND
931 CRIMINAL WRIT PETITION NO.452 OF 2021
RUPESH TULSIRAM GAIKWAD (C-5323) ..PETITIONER
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Advocate for Petitioner : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. R. V. Dasalkar
....
932 CRIMINAL WRIT PETITION NO.453 OF 2021
GANESH RAMSINGH SABLE (C-5302) ...PETITIONER
VERSUS
THE STATE OF MAHARASHTRA & ANOTHER ...RESPONDENTS
....
Advocate for Petitioners : Mr. P.P. More h/f Mrs. S.P. Chate
APP for Respondents: Mr. S. J. Sangle
.....
CORAM : RAVINDRA V. GHUGE AND
B. U. DEBADWAR,JJ.
DATE : 01-04-2021 PER COURT :-
1. In all these matters, these petitioners seek to challenge the rejection of their applications fled under Rule 19(1)(C) of the Maharashtra Prisons ( Mumbai Furlough and Parole) Rules, ::: Uploaded on - 06/04/2021 ::: Downloaded on - 04/09/2021 17:35:41 ::: 4 Cri.W.P. 438-2021 & Others 8.odt 1959, vide the impugned orders set out in the prayer clauses. The grievance of these petitioners is that their applications have been rejected as all these petitioners, have not availed of, either parole or furlough leave in their entire stay in prison as convicts serving out their sentences. Most of them have been in prison in between 5 to 10 years. Except Mr. Tongare, who has availed of a furlough leave only once, none of the other petitioners have ever applied for the parole or furlough leave.
2. In the matter of Pratap Dinkar Chavan Vs. The State of Maharashtra and Another (Criminal Writ Petition NO. 705 of 2020) , this Court ( Ravindra V. Ghuge, & Shrikant D. Kulkarni, JJ) has considered the object of the introduction of the Government circular dated 08th May 2020, in the light of the recommendations of the Additional Director General of Police (Prisons) Shri. Sunil B. Ramanand, I.P.S. and the recommendations of the High Power Committee headed by the Hon'ble Shri. Justice A.A. Sayed, as follows :-
'' We fnd that the State of Maharashtra had amended the Maharashtra Prisons ( Mumbai Furlough and Parole) Rules, 1959, vide the Maharashtra Notifcation dated 08.05.2020. By virtue of the said amendment, Rule 19(1) (C) was introduced in the said Rules with the aim and object of preventing the spread of the corona virus ::: Uploaded on - 06/04/2021 ::: Downloaded on - 04/09/2021 17:35:41 ::: 5 Cri.W.P. 438-2021 & Others 8.odt in the prisons, as almost all the prisons were congested.
The State Government intends to de-congest the prisons and hence, Rule 19(1)(C) was introduced for a limited purpose in the backdrop of the COVID-19 pandemic.
3. It is thus obvious that in a group of matters, this Court had come to a conclusion that the intent and purpose of the circular dated 08.05.2020, thereby introducing Rule 19 (1) (C) to the 1959 Rules in extraordinary circumstances, considering the COVID- 19 pandemic caused by the Wuhan virus, was to de-congest the prisons so as to prevent the outbreak of the pandemic inside the prisons. It was also concluded that the said circular did not intend to empty the prisons by virtue of Rule 19(1)(C).
4. A co-ordinate Bench of this Court has come to a conclusion that emergency parole need not mean that the prisoners should make an application and that the Jail Superintendent can suo motu grant emergency parole without asking for applications. The learned Full Bench of this Court, on a reference made by us in Nagnath Sakharam Mane Vs. The State of Maharashtra and Another, (Criminal Application No. 4118 of 2019), has interpreted clause 2C (ii) of the notifcation dated 08.05.2020, and concluded that after emergency parole ::: Uploaded on - 06/04/2021 ::: Downloaded on - 04/09/2021 17:35:41 ::: 6 Cri.W.P. 438-2021 & Others 8.odt for 45 days is granted under Rule 19(1)(C), a convict need not apply for extension of the said parole since he would be, ipso facto, entitled for an extension of blocks of 30 days, continuously, till such time the said notifcation is enforced. The learned Chief Public Prosecutor submits that the learned Full Bench has therefore, concluded that once a convict is released on emergency parole under Rule 19(1)(C), he stands released till the notifcation is recalled and there is no requirement for him to make an application for extension.
5. Considering the various judicial pronouncements of this Court at Aurangabad, at Nagpur and the principal seat at Bombay, as well as the view taken by the learned Full Bench in Pintu Uttam Sonal Vs. The State of Maharashtra, Criminal W.P. (stamp) No. 3206 of 2020), the learned Chief Public Prosecutor submits that it would be necessary for him to advice the State, through the Additional Chief Secretary, Home Department and also seek clarifcation on the following counts :-
(A) The circular dated 08.05.2020, needs a re-look by the State in order to ensure that there is uniformity in considering applications of prisoners for grant of emergency parole under Rule 19(1)(C).::: Uploaded on - 06/04/2021 ::: Downloaded on - 04/09/2021 17:35:41 :::
7 Cri.W.P. 438-2021 & Others 8.odt (B) Whether it would be in the interest of the society that a convict released on emergency parole will never return back to the prison until the circular is altered or repelled or replaced by a new circular.
(C) Whether the circular dated 08/05/2020 is aimed at de-
congesting the Prisons or to empty the prisons by releasing all eligible inmates ?
(D) Some Open Prisons, for example, the Paithan Open Prison in district Aurangabad, has 827 Acres of land within an area of 70 square kilometers, out of which 325 Acres of land are under cultivation. Sugarcane and other crops are reaped. This leads to generating income in crores of rupees for the State Government. There are 220 cattle (live stock) who have to be kept in a healthy condition so as to be utilized for agricultural activities. Therefore, should the prisons be emptied by orders under Rule 19(1)(C). ?
(E) At least 1/3rd of the total occupancy strength of the prisons will have to be maintained so as to take care of the live stock and the agricultural activities and, therefore, the prisoners can be released on the basis of their eligibility under Rule 19(1)(C), so as to de-congest the prisons and not to empty the prisons.
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8 Cri.W.P. 438-2021 & Others 8.odt
6. We are aware that the circular dated 08.05.2020, does not grant the beneft of Rule 19(1)(C) to the prisoners who are convicted for committing serious economic ofences, Bank scams, ofences under the Special Act other than the Indian Penal Code, etc. This has been interpreted by the learned Full Bench at our Principal Seat in Criminal Writ Petition No. ( Stamp) No. 3206 of 2020, in the matter of Pintu S/o Uttam Sonale Vs. State of Maharashtra . It was held that those prisoners convicted under any Special Act set out in the circular dated 08.05.2020, and those who have committed serious economic ofences/ Bank Scam etc., would be disentitled from the beneft of Rule 19(1)(C).
7. We appreciate the concern voiced by the learned Chief Public Prosecutor and the disclosure of his intention that he intends to have a conversation with the Additional Chief Secretary, Home, State of Maharashtra to have more clarity with regard to the circular dated 08.05.2020 on the issues set out in paragraph No.5, hereinabove. At the same time, we also cannot ignore the fact that all these petitioners are from the Open Prison at Paithan which has 827 Acres of land within a periphery of 70 square K.Ms. which need to be protected. 325 Acres are under cultivation. There are 220 cattle who have to ::: Uploaded on - 06/04/2021 ::: Downloaded on - 04/09/2021 17:35:41 ::: 9 Cri.W.P. 438-2021 & Others 8.odt be protected and their health should be safeguarded. For these purposes, the prisons need to have sufcient amount of prisoners who can be utilized for such purposes, by keeping in view the object of containing the outbreak of COVID-19 pandemic and, for which, physical distancing will have to be maintained. Those convicts who are not entitled for the beneft of Rule 19 (1)(C) can also be utilized for the said purpose.
8. We are informed that, today, there are only 41 prisoners in the Open Air Prison at Paithan which has a maximum approved occupancy of 500 inmates. A view has been taken by a co-ordinate Bench at Aurangabad that there should not be discrimination amongst those who are released under Rule 19(1) (C) and those who are awaiting such orders. This issue can also be tackled by the State Government by transferring some prisoners to places where the strength of the prisoners has dwindled on account of many being released on emergency parole or under the orders of this Court, so as to de-congest those prisons which are already congested and have sufcient strength of prisoners in those prisons where the strength of the prisoners has gone down drastically due to the above factors.
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10 Cri.W.P. 438-2021 & Others 8.odt
9. While considering the cases in hand, we fnd that only one prisoner Mr. Datta Bhika Tongare, has availed of furlough leave on one occasion. Rest of the eight petitioners have not availed of furlough or parole leave even once in their entire duration/ stay in the prison. Keeping in view that this Court has passed hundreds of orders granting emergency parole, we fnd that these eight prisoners could be granted emergency parole so that they can be out of the prison at least once as has been held by this Court in Kavita Dilip Baviskar Vs. The State of Maharashtra ( Criminal Writ Petition No. 571 of 2020 ) vide Judgment dated 30.06.2020.
10. In view of the above, Writ Petition No. 441 of 2021 ( Datta Bhika Tongare) Vs. The State of Maharashtra and another) is dismissed. The petitioner Datta Bhika Tongare, would be eligible to renew his request after six months for emergency parole under Rule 19(1)(C).
11. All other Writ Petitions bearing Criminal Writ Petition Nos. 438/2021,439/2021, 440/2021, 448/2021 449/2021,451/2021, 452/2021 and 453/2021 are allowed. The impugned orders are set-aside and these petitioners, subject to the prescribed conditions applicable, shall be released on emergency parole on 9th April, 2021.
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11 Cri.W.P. 438-2021 & Others 8.odt
12. Needless to state that, we are passing this order since a co-ordinate Bench of this Court has taken a view that there should not be discrimination amongst the applicants. We, however, make it clear that we are not laying down any precedent by this order since the intention of the State Government is not to empty all the prisons in the State under Rule 19(1)(C). Rotation amongst prisoners released under Rule 19(1)(C) could also be efected.
13. In so far as the orders being passed by the Superintendent of Jails, thereby rejecting applications on a solitary ground that the applicant has not availed of parole or furlough leave at least on two occasions in the past before moving an application under Rule 19(1)(C), having been held by this Court to be no impediment for considering their applications, we accept the apology tendered by the Superintendent of Paithan Open District prison and his undertaking that the applications would not be rejected on this solitary ground in the future.
(B.U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.) YSK/ ::: Uploaded on - 06/04/2021 ::: Downloaded on - 04/09/2021 17:35:41 :::