Bombay High Court
Manoj Prabhakar Lohar vs The State Of Maharashtra on 9 February, 2021
Equivalent citations: AIRONLINE 2021 BOM 811
Author: S.S. Shinde
Bench: S. S. Shinde, Manish Pitale
Digitally
signed by
Vishwanath 1/8 CRWP-73-2021(J).doc
Vishwanath S. Sherla
S. Sherla Date:
2021.02.09
19:48:22
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 73 OF 2021
Manoj S/o. Prabhakar Lohar
R/o. 1701 Crinton Building,
Vasant Niwas, Thane (W),
District: Thane, Maharashtra.
(At Present lodged at Yervada
Central Prison, Pune) ...PETITIONER
Versus
The State of Maharashtra
Through Secretary, Home
Ministry, Mumbai, Maharashtra. ...RESPONDENT
...
Mr. S.B. Talekar i/b Mr. Samir A. Vaidya for Petitioner.
Mrs. S.D. Shinde, APP for State.
...
CORAM : S. S. SHINDE &
MANISH PITALE, JJ.
RESERVED ON : 3rd FEBRUARY , 2021.
PRONOUNCED ON: 9th FEBRUARY, 2021.
JUDGMENT [PER S.S. SHINDE, J.]:
1. The Petitioner by way of this writ petition under article 226 of the Constitution of India prays for his release on emergency parole in terms of Government notification dated 08.05.2020 and in terms of High Power Committee guidelines dated 11.05.2020 and 18.05.2020 and also in terms of order passed by this Hon'ble Court in the matter of PUCL V/s. Union of India and others and also in a P.I.L. filed by the activist Medha Patkar and in Bhagyawant Punde 2/8 CRWP-73-2021(J).doc view of the liberty granted to the Petitioner by this Hon'ble Court (Coram:
R.D. Dhanuka and V.G. Bisht, JJ.) in Criminal Writ Petition No. 53 of 2020.
2. It is the case of the petitioner that C.R. No. I-145 of 2009 was registered against the Petitioner for the offences punishable under Section 347, 364-A, 384 read with 34 of IPC at Jalgaon. The Sessions Court, Jalgaon convicted the present petitioner and sentenced to life imprisonment. On 03.04.2019 the appeal of the petitioner was admitted by the Bombay High Court, bench at Aurangabad, however, application to release him on bail was rejected. He approached the Supreme Court for interim bail on medical ground. He was granted interim bail by the Supreme Court. The Petitioner was operated on 14.02.2020 and AICD implanted in his heart. On 03.03.2020 cardiac surgeon, J.J. Hospital issued certificate depicting actual health condition of the petitioner.
3. It is the case of the Petitioner that on 11.03.2020 first corona virus case was detected in Mumbai. On 27.03.2020 the Petitioner submitted his application for parole leave with the jail authority. On 7.05.2020 Jupiter Hospital, Thane, issued a certificate disclosing the Petitioner a high risk patient. On 07.05.2020 almost 184 inmates and 24 police personnel in jail were tested positive for carona virus. On 26.05.2020 this Court (Coram: Nitin Bhagyawant Punde 3/8 CRWP-73-2021(J).doc Jamdar & N.R. Borkar, JJ.) directed the jail authorities to decide the petitioner's application seeking emergency parole. On 27.05.2020 the Petitioner submitted emergency parole application with jail authority. On 30.05.2020 the jail authorities/IG Prisons rejected the petitioner's application seeking emergency parole. On 30.06.2020 the Petitioner filed Criminal Writ Petition No. 52 of 2020 challenging the rejection of emergency parole. On 28.08.2020 this Hon'ble Court (Coram:- R.D. Dhanuka & V.G. Bisht, JJ.) upon perusal of the medical report of the Petitioner who was tested positive for Covid-19 was satisfied that he was being treated and accordingly granted liberty to approach this Hon'ble Court afresh. Pursuant to the liberty given by this Court (Coram:- R.D. Dhanuka & V.G. Bisht, JJ.) on 28.08.2020, this petition is filed by the petitioner.
4. Mr. Talekar instructed by Mr. Samir Vaidya appearing for the Petitioner would submit that the medical certificate of the petitioner would clearly show that the petitioner is a high risk patient. He was tested positive for Covid-19 and therefore, he deserves to be released from the jail on emergency parole. It is submitted that the order passed by the jail authorities rejecting the parole leave application vide order dated 30.05.2020 in terms of Rule 4 (13) of the Prisons (Bombay Furlough and Parole) Rules, 1959 even otherwise is prima facie bad in law in view of the law laid down by the Bhagyawant Punde 4/8 CRWP-73-2021(J).doc Bombay High Court at Aurangabad in the case of Baburao Marotrao Dakhore V/s. State of Maharashtra & Others in Criminal Writ Petition No. 1397 of 2017. Admittedly, if the interpretation of the jail authority is considered and accepted the same in itself would completely deny the right to any such prisoner inmate to seek parole leave. This Hon'ble Court, so also the Hon'ble Apex Court has interpreted the Rule 4 (13) of the Prisons (Bombay Furlough and Parole) Rules, 1959 and emphasize a harmonious construction of such Rule, and therefore even on this count the order passed by the jail authority is bad in law. It is submitted that the rejection of parole leave misinterpreting the emergency parole leave by the jail authority in itself denies the very basis for seeking such leave and the criteria of previous parole and/or furlough leave and/or surrender thereupon cannot be any consequence for seeking emergency parole leave during the pandemic in view of the emergency parole leave as notified by the Government of Maharashtra in the notification dated 08.05.2020. It is further submitted by the learned counsel for the petitioner that the order passed by the jail authority is contrary to the law laid down by the Hon'ble Full Bench of this Hon'ble Court in the case of Kantilal Nandalal Jaiswal Vs. Divisional Commissioner, Nagpur Division, Nagpur in Criminal Writ Petition No. 1046 of 2018 dated 13.09.2019, wherein the Hon'be Full Bench has recognized the right of the prisoner to parole and has further held that proviso to that amended Rule 19 (2) to introduce in terms of Bhagyawant Punde 5/8 CRWP-73-2021(J).doc notification dated 16.04.2019 is ultra-virus Article 14 and 21 of the Constitution of India and therefore, the impugned order passed by the jail authority is per se illegal and perverse. The Hon'ble Apex Court in the case of Ashfax Vs. State of Rajasthan 2017 (15) SCC 55, (Para 18, 19) has recognized the right to parole as a reform and for continuation of family life of such prisoner. It is submitted that upon perusal of the amended rule 19 (1) (C) the same ought to be applied to the Petitioner's case considering the undisputed and admitted fact that the Pandemic/Epidemic Act is invoked by the State of Maharashtra and therefore even otherwise the Petitioner is entitled to parole leave. It is submitted that upon perusal of the provisions of amended rule 19 more specifically Rule B, wherein it is categorically mentioned emergency parole meaning thereby the emergency as stipulated also included natural calamities and the present covid-19 is also a calamity and covered within the amended Rule 19 (1) (C) and therefore, the order passed by the jail authority is contrary to the Rule itself and therefore, the said order is liable to be set aside on the face of it.
5. It is further submitted that the jail authority has failed to make distinction between regular parole and covid-19 parole. Learned counsel invites our attention to the pleadings and ground taken in the petition and submits that the petition may be allowed.
Bhagyawant Punde
6/8 CRWP-73-2021(J).doc
6. On the other hand, learned APP appearing for State submits that the petitioner is convicted under serious offence i.e. 364-A of IPC. It is submitted that in view of Rule 4(13) of the Prisons (Bombay Furlough and Parole) Rules, 1959, the petitioner is not entitled for parole. It is submitted that presently in jail there is no single inmate or employee tested positive for Covid-19 and everyday there is thermal scanning and rapid antigen test are being conducted. All preventive steps are being taken to control the spread of Covid-19 virus. Even otherwise in the State of Maharashtra life comes to the normalcy and there is no eminent thereat from the spread of Covid-19 virus. The Petitioner is also availed sufficient medical leave pursuant to the order passed by Hon'ble Supreme Court.
7. We have given due consideration to the rival submissions of the learned counsel appearing for the parties. With their able assistance perused the pleadings and grounds taken in the petition, annexures thereto, so also the report submitted by the jail authority. It is admitted position that the petitioner is convicted for the offence punishable under Section 364-A of IPC, which reads thus:-
364-A. Kidnapping for ransom, etc.- Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to Bhagyawant Punde 7/8 CRWP-73-2021(J).doc reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or [any foreign State or international inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.]
8. The respondent has heavily relied on the Rule 4 (13) of Prison Act, 1984. Rule 4 (13) of the Prisons (Bombay Furlough and Parole) Rules, 1959, which reads thus:-
4. Eligibility for Furlough.-
.....
.....
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(13) Who is sentenced for offences such as terrorist crimes, mutiny against stake, kidnapping for ransom (Prisoners may be eligible for furlough after completion of stipulated sentence in the respective section);
9. In our opinion the cumulative effect of the conviction of petitioner for serious offence punishable under section 364-A of IPC and Rule 4(13) of the Prisons (Bombay Furlough and Parole) Rules, 1959 is that the petitioner is not entitled for parole. The Petitioner himself disclosed in the petition that he was released on medical ground by the Hon'ble Supreme Bhagyawant Punde 8/8 CRWP-73-2021(J).doc Court for period of three months to treat his ailment and accordingly, he has been cured of the said ailment. Though he was tested positive for Covid-19 in the jail, this Court (R.D. Dhanuka & V.G. Bisht, JJ.) did not think it fit to grant him emergency parole and his petition was rejected with liberty to apply afresh. In fact on 28th August 2020 the petition was dismissed and immediately on 17th September 2020 this fresh petition has been filed by the Petitioner. In our opinion there is no change of circumstances, on the contrary spread of Covid-19 virus in the entire State of Maharashtra is well within control. We are satisfied from the report received from the jail authority that all the precautionary measures are being taken in the jail to prevent the spread of Covid-19 virus and regularly thermal scanning and rapid antigen tests are being conducted. Since in the State of Maharashtra life is coming to normalcy, it would not be appropriate to release the Petitioner who is convicted of very serious offence punishable under Section 364-A of IPC. In that view of the matter, for the reasons aforestated, we are not inclined to entertain this petition. Hence, the writ petition stands rejected.
( MANISH PITALE, J.) (S. S. SHINDE, J.) Bhagyawant Punde