Bombay High Court
Mahesh Lalchand Bohra vs The State Of Maharashtra And Anr on 21 December, 2020
Equivalent citations: AIRONLINE 2020 BOM 2747
Author: M.S. Karnik
Bench: S. S. Shinde, M. S. Karnik
wp 3178.20.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION STAMP NO. 3178 OF 2020
Mahesh Lalchand Bohra
Aged 64 yrs., residing at A-201, Jayesh
Apartment, Chandawarkar Road,
Boriwali (W), Mumbai - 400 092
(now confined at Nasik Road Central
Prison, Nasik Road) ....Petitioner
Vs.
1. The State of Maharashtra
Through the ofce of The Public
Prosecutor, High Court, Mumbai.
2. The Superintendent,
Nasik Road Central Prison,
Nasik Road ..... Respondents
Mr.N.N.Gawankar i/b Mr.M.N.Gawankar, for the Petitioner.
Mr.K.V.Saste, APP for the Respondent - State.
CORAM : S. S. SHINDE &
M. S. KARNIK, JJ
RESERVED ON : 17th DECEMBER, 2020
PRONOUNCED ON : 21st DECEMBER, 2020
JUDGMENT :(PER M.S. KARNIK, J.) . Rule. Rule is made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.
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wp 3178.20.doc
2. The petitioner by this petition is challenging the impugned order dated 18/09/2020 passed by respondent No.2 rejecting his application for releasing the petitioner on emergency Covid-19 parole. The petitioner was arraigned as an accused. He was convicted and sentenced to imprisonment for life by Special Court by judgment and order dated 26/04/2019.
3. Learned Counsel for the petitioner submitted that the petitioner is eligible to the benefit of the notification dated 08/05/2020. It is contended that the petitioner is a cancer patient. It is further contended that merely because the petitioner does not fulfill the condition of last two releases and surrendering on time will not be sufcient to deprive the petitioner from the benefit of the notification in view of the decision of this Court in the case of Kavita W/o Dilip Bawiskar vs. The State of Maharashtra1. Learned Counsel also relied upon the decision of this Court (Coram : Ravindra V.Ghuge & Shrikant D.Kulkarni, JJ.) dated 04/08/2020 in the case of Gangadhar Ananda Kokate Vs. the State of Maharashtra.
4. Learned APP on the other hand submitted that the petitioner has undergone actual imprisonment only for one year 1 Criminal Writ Petition No.571 of 2020.
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wp 3178.20.doc and one month since the date of registering the F.I.R. He would submit that under the Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment) Rules, 2018 and especially Rule 3(C) (1), it is provided that a prisoner, sentenced to imprisonment for a period exceeding 14 years shall become eligible for furlough on completion of 3 years of actual imprisonment. The petitioner is therefore not entitled to be released on emergency Covid-19 parole according to him.
5. Heard learned Counsel. The petitioner is convicted by the Special Court vide judgment rendered on 26/04/2019 for the ofence punishable under sections 420, 466, 467, 468, 471 r/ w 120-B of Indian Penal Code and sentenced to sufer imprisonment for life. The petitioner has undergone one year and one month of actual imprisonment since the date of his arrest. Undoubtedly, the notification dated 08/05/2020 is issued by the State of Maharashtra providing for the eligibility for being released on emergency Covid -19 parole to the prisoners enlisted thereunder. Learned Counsel for the petitioner is justified in contending that the impugned order cannot be passed merely on the ground of a prisoner not fulfilling the condition of last two releases on furlough/parole and surrendering on time. However, in our considered opinion, the notification dated 08/05/2020 3/5 wp 3178.20.doc cannot be read dehors the provisions of Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment) Rules, 2018. The Maharashtra Prisons (Mumbai Furlough and Parole), Rules 1959 ('the said Rules' for short), particularly Rule 3(C)(1) thereof provides that a prisoner, sentenced to imprisonment for a period exceeding 14 years shall become eligible for furlough on completion of 3 years of actual imprisonment. The petitioner has undergone only one year and one month of actual imprisonment.
6. It is inconceivable that the benefit of the notification dated 08/05/2020 is also available to a prisoner who is sentenced to sufer imprisonment for a period exceeding 14 years without even completion of 3 years of actual imprisonment as contemplated by the said Rules.
7. The purpose of notification dated 08/05/2020 is to reduce the overcrowding in prisons so that the health and safety of the prisoners is not compromised during the current pandemic. We are not persuaded to accept the submission of the learned Counsel for the petitioner that the petitioner should be released on emergency Covide-19 parole as in our opinion, that would be completely contrary to what is provided in Rule 3(1) of the said 4/5 wp 3178.20.doc Rules. It can never be the intendment of the notification to confer the benefit of emergency parole to a prisoner completely bypassing even the minimum eligibility prescribed by the Rules. The notification does not have the efect of suspending the operation of the 'Rules'. A reading of the notification in the manner learned Counsel for the petitioner wants us to do will have the efect of rendering the 'Rules' redundant.
8. We do not therefore find any merit in this petition. So far as the concern expressed by learned Counsel as regards the health of the petitioner who is sufering from cancer, we have no manner of doubt that jail authorities will provide all the necessary medical aid and health care facilities to the petitioner.
9. In this view of the matter, Petition is rejected. Rule is discharged in the above terms.
(M.S.KARNIK, J. ) (S.S.SHINDE, J.) Digitally signed by Urmila P. Urmila Ingle P. Ingle Date: 2020.12.21 20:06:08 +0530 5/5