Bombay High Court
Avinash @ Suraj Ashok Singh Through His ... vs The State Of Maharashtra And Anr on 19 May, 2021
Bench: S.J. Kathawalla, Surendra P. Tavade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1978 OF 2021
Avinash @ Suraj Ashok Singh .... Petitioner
Versus
The State of Maharashtra & Anr. ... Respondents
.........
Mr. Aniket Vagal for the Petitioner.
Mr. J.P. Yagnik a/w Ms Sangeeta Shinde, APP for the State.
.........
CORAM : S.J. KATHAWALLA AND
SURENDRA P. TAVADE, JJ.
DATE : 19TH MAY, 2021.
(VACATION COURT
THROUGH VIDEO
CONFERENCING)
P.C. :-
1. By this Writ Petition, the Petitioner seeks to quash and set aside the order passed by the Respondent No.2 on 30.03.2021, and to release the Petitioner on emergency parole for the period of 45 days.
2. The Petitioner is a life convict, (having undergone 10 years of his imprisonment sentence) in Nashik Road Central Prison, Nashik. It is Aarti Palkar ::: Uploaded on - 22/05/2021 ::: Downloaded on - 12/09/2021 10:35:10 ::: 2/5 25.WP.1978.2021.doc contended that due to the current Pandemic, the State Government has issued a Notification to decongest the jail by releasing convicts on emergency parole. The Petitioner had applied for emergency parole, but Respondent No.2 has rejected his Application on the ground that he was earlier never released on parole. The said Order was challenged by the Petitioner before this Court by filing Writ Petition No.766 of 2021. The Division Bench of this Court (Coram :
S.S. Shinde & Manish Pitale, JJ) by allowing the Writ Petition No.766/2021, set aside the Order of Respondent No.2 and directed Respondent No.2 to reconsider the Application of the Petitioner afresh. Respondent No.2 has considered the said Application afresh, but the same once again came to be dismissed on the following grounds :-
a) Proper care of the prisoners is being taken and they are now provided with masks and sanitizers and the jail now has less prisoners than its total capacity.
b) The prisoner was never previously released on furlough or parole.
c) There is possibility of the prisoner absconding, if released on furlough or parole.
3. Heard the Learned Counsel for the Petitioner, as well as the Learned APP for the State. Perused the impugned Order dated 30.03.2021 passed by Respondent No.2.
Aarti Palkar
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4. The Learned counsel for the Petitioner contended that the Petitioner is in jail since October 2013. He has no other efficacious remedy other than to move this Court. Respondent No.2 has rejected the Application of Petitioner without application of mind. He further contended that the Order passed by the Respondent No.2 is not legal and proper. He submitted that there is congestion in Nashik Prison; the capacity of the convicts in Nashik Prison has been reduced to 2311, but still the rules of social distancing are not being followed and more than 50 convicts are lodged in one barrack admeasuring 1500 sq.ft.; there is possibility of the Petitioner being infected with Covid-19; there is no possibility of the Petitioner absconding if he is released on parole. He therefore prayed for his release on emergency parole.
5. The Learned APP submitted that the total capacity of Nashik Central Prison is 3178, out of which 3119 male convicts can be accommodated and 60 women convicts can be accommodated. Presently 2311 male convicts and 77 women convicts are lodged in the said Prison. He submitted that 50 convicts are kept in one barrack admeasuring about 1500 sq.ft. He admitted that it is not possible to follow rules of social distancing in the barrack.
6. On going through the above data, it cannot be said that the Prison Aarti Palkar ::: Uploaded on - 22/05/2021 ::: Downloaded on - 12/09/2021 10:35:10 ::: 4/5 25.WP.1978.2021.doc Authorities are following the SOP's prescribed by the State Government from time to time, more particularly the requirement of maintaining social distancing.
7. The Learned Counsel for the Petitioner submitted that there is apprehension in the mind of the Prison Authorities, that if the Petitioner is released on parole, he may misuse the liberty granted to him and may not surrender to the Prison on expiry of the leave period. However, there is no material produced by the Prison Authorities to substantiate this apprehension that the Petitioner will abscond if released on emergency parole. The apprehension of the Prison Authorities therefore has no basis. The Petitioner has undergone 10 years of his imprisonment.
8. The third ground of rejection of the Petitioner's Application is that he never sought parole or furlough earlier. That itself cannot be a ground for rejection of his Application, especially when he is presently seeking release on emergency parole.
9. The Learned counsel for the Petitioner has also submitted that this Court has released convicts on Emergency Parole from Nashik Prison wherein similar objections were taken by the Prison Authorities. He has relied on the ratio laid down in Rajesh s/o Madhukar Patil vs. The State of Maharashtra in Aarti Palkar ::: Uploaded on - 22/05/2021 ::: Downloaded on - 12/09/2021 10:35:10 ::: 5/5 25.WP.1978.2021.doc Writ Petition No.1907 of 2021, wherein the Division Bench of this Court (Coram : Prasanna B. Varale & N.R. Borkar, JJ) has considered the capacity of Nashik Central Prison and considered the Notification issued by the State Government dated 08.05.2021 for releasing the prisoners to decongest the Jail. It appears that the Petitioner is similarly circumstanced.
10. Considering all these aspects, we are of the opinion that the Petitioner has made out a case for allowing the Petition. Hence, the following Order:
a) Writ Petition is allowed.
b) The Order passed by the Competent Authority dated 30.03.2021 is quashed and set aside.
c) The Petitioner be released on parole on such conditions as may be specified for the period of release, by the Competent Authority.
d) All concerned to act on an authenticated copy of this Order.
e) Writ Petition is disposed of.
( SURENDRA P. TAVADE, J. ) ( S.J. KATHAWALLA, J. ) Aarti Palkar ::: Uploaded on - 22/05/2021 ::: Downloaded on - 12/09/2021 10:35:10 :::