Bombay High Court
Nagnath S/O. Sakharam Mane vs The State Of Maharashtra on 5 November, 2020
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge, B. U. Debadwar
APPLN4118.2019 [Nagnath v State]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO. 4118 OF 2019
IN
CRIMINAL APPEAL NO. 243 OF 2019
Nagnath S/o. Sakharam Mane
Age - 50 years, Occu. Agriculturist,
R/o. Kolpa, Tq. Latur,
Dist. Latur. ...Applicant
Versus
The State of Maharashtra & Anr. ...Respondents
.....
Shri. A. B. Girase, Advocate appointed as Amicus Curiae
Shri. A. A. Yadkikar, Advocate for the applicant
Shri. M. M. Nerlikar, APP for respondent/State
.....
CORAM : RAVINDRA V. GHUGE
AND
B. U. DEBADWAR, JJ.
DATE : 05th November, 2020
ORAL ORDER [Per Ravindra V. Ghuge, J.] : -
1. By this application, the applicant/convict in Sessions Case No. 16 of 2014, decided on 21.01.2019, prays as under : -
a. This bail application may kindly be allowed.
b. Pending hearing and final disposal of the criminal appeal, the impugned order of conviction dated 21/01/2019 passed by Ld. Additional Sessions Judge-1 Latur in Sessions Case No. 16 of 2014 may kindly be stayed and the Appellant may kindly be enlarged on bail.SG Punde, PA 1/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 :::
APPLN4118.2019 [Nagnath v State]
2. We have heard the learned Advocate for the applicant/appellant and the learned Prosecutor. Considering an issue which is an offshoot of this proceeding, we have appointed Shri. A. B. Girase, learned Advocate as amicus curiae.
3. While making his submissions, the learned Advocate for the applicant stated that he has already been granted emergency parole under Rule 19(1)(C) of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959 (hereinafter referred to as "the 1959 Rules"), on 23.09.2020 for a period of 45 days and the said period would expire on 08.11.2020. He, however, relies upon an order passed by this Court (Coram: T. V. Nalawade & Shrikant D. Kulkarni, JJ.) dated 30.06.2020 in Criminal Writ Petition No. 578 of 2020 filed by Dinesh s/o. Arjunsing Thakur Versus The State of Maharashtra and another, vide which it was held, that there is an automatic extension of parole leave beyond 45 days and the applicant is not required to make any application or seek permission or an order from the concerned Jail Superintendent for extention of his parole leave in blocks of 30 days, by virtue of the State notification dated 08.05.2020. He therefore submits, that though he has a right to prefer a Criminal Application for seeking suspension of sentence and enlargement on bail, the hearing on this application could be kept pending since the applicant/ appellant is already on emergency parole leave and has a right for SG Punde, PA 2/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] extension of 30 days until the notification dated 08.05.2020 is withdrawn or substituted by a new notification, whichever is later.
4. The learned Prosecutor relied upon the State notification dated 08.05.2020 and an order passed by this Court (Coram: Ravindra V. Ghuge & Shrikant D. Kulkarni, JJ.) dated 07.08.2020 in Criminal Writ Petition No. 790 of 2020 filed by Sonu S/o. Chandrakant Shrinath Versus The State of Maharashtra and anr, wherein this Court has held that, when the petitioner is granted emergency parole leave for a period of 45 days on an application made by him, he would have to make an application for extension of his emergency parole leave prior to the expiry of the 45 days and he cannot avoid reporting back to the prison on the pretext that his application for extension is pending though his 45 days leave has expired.
5. The learned Advocate for the applicant submits, that the view taken by a Coordinate Bench in Dinesh Thakur (supra) on 30.06.2020, was not cited before this Court when the order dated 07.08.2020 in Sonu Shrinath (supra) was passed.
6. The learned Amicus Curiae refers to Rules 22, 23, 24, 24-A, 26 & 27 of the 1959 Rules. He submits that, though Rule 25 as SG Punde, PA 3/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] regards extension of the period of parole leave has been deleted, the second proviso to Rule 24-A of the 1959 Rules will indicate that if the convict does not surrender on the due date i.e. the last date of the period of emergency parole leave, the amount of deposit would be forfeited and a case under Section 224 of the Indian Penal Code (hereinafter referred to as the "IPC") would be registered against him. A specific declaration is also to be given by the prisoner that if he does not report to the prison and fails to fulfill any condition imposed upon him, he can be prosecuted under Section 224 of the IPC. He, therefore, submits that this clearly indicates that a convict has to report back to the prison within the period of emergency parole leave and if he desires an extension, he would have to apply for such extension. He, therefore, submits, with respect to the order passed in Dinesh Thakur (supra), that an application for extension of parole leave will have to be made.
7. Rules 21 to 24-A, 26 and 27 of the 1959 Rules read as under: -
21. Application for grant of parole.
A prisoner may be granted parole either on his own application or on an application made by his relatives or friends, or legal adviser. *[22. Applications for parole how to be dealt with.
(1) Any prisoner desiring to be released on parole shall ordinarily submit his application (in triplicate) in Form D appended to SG Punde, PA 4/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] these rules to the Superintendent of Prison who shall endorse his remarks thereon and submit one copy direct to the Competent Authority within six days along with the nominal roll of the prisoner and the other to the Deputy Superintendent of Police of the area in which the prisoner proposes to spend his parole period or to the concerned Assistant Commissioner of Police if such place is in Commissionerate area.
Note- Prisoners who apply for parole on false grounds or who abuse the concession or commit breach of any of the conditions of parole are liable to be punished under section 51-B of the Prisons Act, 1894, as applicable to the States. (2) The Deputy Superintendent of Police or the Assistant Commissioner of Police concerned, as the case may be, shall immediately make enquiries to ascertain whether the ground or grounds on which parole is applied for, is or are genuine and submit within fifteen days his report to the Competent Authority mentioning inter alia whether it recommends the grant of parole and also whether there is a likelihood of breach of peace if the prisoner is released on parole.] *Substituted by Notification No. MIS-1316/C.R.669/16/PRS-3, dated 16.04.2018.
*[23. Enquries may be made on receipt of application.
On receipt of an application for parole, the Competent Authority may make such enquiries as it considers necessary, and pass such orders as it considers fit. If the Competent Authority considers that there is no objection to release the prisoner concerned on parole it shall make an order for his release on parole within seventeen days from the date of receipt of enquiry report from The Deputy Superintendent of Police or the Assistant Commissioner of Police concerned as contemplated in Rule 22 (2).
NB: (1) The onus of submitting Police enquiry report within a period of fifteen days shall lie on related Police authority and electronic modes of communication such as e-mail/fax shall be used for communicating the enquiry report.
(2) The medical certificate submitted by prisoners for parole leave shall be verified and attested by Civil Surgeon/ Medical Superintendent/ Local Medical Officer of Public Health Centre.] *Substituted by Notification No.MIS-1316/C.R.669/16/PRS-3, dated 16.04.2018.
24. Conditions subject to which prisoners may be granted parole:
The Competent Authority may grant parole to a SG Punde, PA 5/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] prisoner subject to his executing a surety bond and a personal bond in Forms A and B respectively to observe all or any of the conditions mentioned therein and also subject to such other conditions, if any, as may be specified by the Competent Authority:
Provided that when prisoners convicted of serious offences are released on parole, a condition shall be included in the parole order directing or requiring the prisoner to report at the Police Station nearest to the place where he intends to spend his parole initially on his reaching such place and thereafter once or twice a week at such intervals as may be considered expedient:
Provided further that when a prisoner applies for parole for the purpose of appearing at an examination he will not be eligible to be released on parole unless the Inspector General of Prisons has passed as order permitting him to appear at such examination.
*[24A. Conditions subject to which prisoner may be granted parole.-
The Competent Authority to approve parole may grant parole to a prisoner subject to his executing a surety bond in Form A, a personal bond in Form B and the prisoner depositing a refundable deposit as decided by the Superintendent of the respective prison to observe all or any of the conditions mentioned therein and any other condition as specified by Competent Authority additionally:
Provided that when prisoners convicted of serious offences are released on parole, a condition shall be included in the parole order directing or requiring the prisoner to report at the Police Station nearest to the place where he intends to spend his parole, twice a week or as ordered by sanctioning authority:
Provided that, if he does not surrender on due date, the amount of deposit shall be forfeited and the prison authority shall also register a case under section 224 I.P.C. After registering such case, if the prisoner is not arrested, concerned police station shall initiate procedure under section 82 and 83 of the Criminal Procedure Code, 1973."
Before releasing a prisoner on parole, declaration as under shall be taken from him on the release order itself:-
"I hereby accept and agree to abide by the above conditions of the release order and I acknowledge that should I fail to fulfill these conditions or any portions of them, the Sanctioning Authority may revoke the order of release and SG Punde, PA 6/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] forfeit the amount of security furnished by me, and I may be arrested by any Police Officer without warrant and remanded to undergo the unexpired portion of my sentence, and I further acknowledge that should I fail to fulfill these conditions or any portion of them, I am liable to be punished, on conviction, with imprisonment for the term which may extend to two years or with fine which may extend to Rs. 1,000 or with both, under Section 51-B of the Prisons Act, 1894, as applicable to the State. I further acknowledge that should I fail to surrender on the due date after the expiry of parole period then I shall be liable to be prosecuted under Section 224 I.P.C.
24B. ..................
26. Parole order ineffective on prisoner's surrender:-
As soon as a prisoner released on parole surrenders to the Prison Authority his original order of release will be inoperative. Where, therefore, a prisoner who is released on parole has applied for the extension of the period of parole and before his application has been sanctioned surrenders himself to the Prison authority, he shall not be released after such surrender without obtaining a fresh release order passed by the Competent Authority.
*[27. Intimation of release and of non-surrender of a prisoner:-
(1) Whenever any prisoner is released on parole, an intimation of his release on parole shall forthwith be given by the Superintendent of Prison to the authority which granted him parole and copies thereof shall also be sent:-
(i) to the Additional Director General of Police and Inspector General of Prisons & Correctional Services, regional Dy. I. G. of Prisons.
(ii) to the Deputy Superintendent of Police, in which the prisoner intends to spend his/her parole or to the concerned Assistant Commissioner of Police if the prisoner intends to spend his/her parole period in Commissionerate area.
(2) Where a prisoner does not surrender himself to the prison authorities after the expiry of the period of parole, the Competent Authority shall cancel its order granting such parole.
An intimation regarding such cancellation shall forthwith be given by the Superintendent of Prison to the officers specified in clause (ii) of sub-rule (1). Upon such intimation, the police authorities shall arrest the prisoner, under section 224 of I.P.C., if at large, and remand him to undergo the unexpired portion of SG Punde, PA 7/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] his sentence after registering the case under section 224 I.P.C. If prisoner is not arrested by the police, concerned police shall take action as per section 82 and 83 of Criminal Procedure Code, 1973.] *Substituted by Notification No. MIS-1316/C.R.669/16/PRS-3, dated 16.04.2018.
8. The deleted Rule 25 of the 1959 Rules pertaining to extension of the period of parole (deleted on 16.04.2018), reads thus:-
[25. Extension of the period of parole.
+ The Competent Authority may, on the application made by the prisoner or by his relatives or friends, or legal advisor one week in advance, before the expiry of the period of parole granted, by an order in writing, extend the period of parole for such further period or periods as may be specified in such order, on the same grounds, and on the same conditions on which the prisoner was originally granted parole, or on such other conditions as the Competent Authority may determine:
Provided that the total period of parole so extended shall not exceed ninety days.]
9. We find from Rule 21 that, a prisoner can be granted parole if he makes an application or such an application is made by a relative or friend or legal advisor. Rule 22 pertains to the manner in which such applications are to be entertained. Rule 23 pertains to the inquires to be made while dealing with such an application and Rule 24 pertains to the conditions which have to be imposed upon the prisoners while granting parole. The second proviso below Rule 24-A of the 1959 Rules would indicate that if a prisoner does not surrender on the due date i.e. the last day of the parole leave, he would be liable to the forfeiture of his deposit and registration of a case u/s 224 SG Punde, PA 8/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] of the IPC. Procedure laid down under Sections 82 and 83 of the Code of Criminal Procedure (hereinafter referred to as "Cr.P.C.") is to be followed by the concerned Police Station if the prisoner is not arrested. The undertaking to be executed by the prisoner, as reproduced above, would also indicate that the prisoner has to abide by all the conditions imposed upon him and he has to give an undertaking that, should he fail to surrender on the due date after the expiry of parole period, he would be liable to prosecution under Section 224 of the IPC.
10. We have gone through the order passed by the Coordinate Bench in Dinesh Thakur (supra), wherein it has been observed in the concluding paragraph nos. 2 and 3 as under : -
"2. The petitioner has prayed for relief giving direction to the respondents to continue the emergency parole. He is on parole and it is his contention that in view of the intention behind Government notifcation dated 8.5.2020 he is entitled to the extension of emergency parole. It is his contention that many of the prisoners are given benefit of aforesaid notifcation and intimation in that regard is given to them. It is his contention that even when the period of parole has expired, no such intimation is given to him.
3. This Court has carefully gone through the wordings of the notifcation dated 8.5.2020. In view of the notifcation, this Court has already made order dated 26.6.2020 and this Court has expressed that there is intention of the State to see that the emergency parole period gets extended automatically unless the intention is changed by the State and new notifcation is issued. Admittedly, no new notifcation has been issued. In view of these circumstances and after hearing the learned APP, this Court has formed opinion that intention of the legislature is to extend the emergency parole leave period automatically till no new notifcation is issued or this notifcation is withdrawn. In the result, the petition is allowed. The period stands extended SG Punde, PA 9/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] subject to the aforesaid power of the State Government.
Rule is made absolute in those terms."
We find that Rules 21 to 27 were not cited before the learned bench where the above order was passed.
11. It is obvious to us, that the order in Dinesh Thakur (supra), a case conducted by Advocate Mrs Sharda Chate was not cited before this Court when it dealt with the case of Sonu Shrinath (supra) wherin the same Advocte Mrs Sharda Chate had appeared for the petitioner.
12. In Sonu Shrinath (supra), this Court had issued certain directions in para 8, as under : -
"8. The petitioner shall be granted emergency parole leave for a period of 45 days w.e.f. 16.8.2020. We make it clear that the petitioner will have to report to the concerned Prison Authorities on or before the 45th day and he shall not remain away from the prison, even on the pretext that his application, if any, seeking extension of emergency parole is pending."
13. In Pratap Dinkar Chavan Versus State of Maharashtra and another, Criminal Writ Petition No. 705 of 2020, this Court (Coram: Ravindra V. Ghuge & Shrikant D. Kulkarni, JJ.) delivered an order on 21.08.2020, observing in paragraph nos. 3 to 6 as under : -
"3. We find that the State of Maharashtra had amended the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959 vide the Maharashtra Notification dated 08.05.2020. By virtue of SG Punde, PA 10/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] 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 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.
4. We are informed by the learned A.P.P. that as on 08.05.2020, there were 360 inmates in the Open Prison, Paithan. The capacity of the said prison is 500 convicts. Out of 360 prisoners as on 08.05.2020, 274 prisoners were released by the orders of the Superintendent of Prison under Rule 19(1)(C). 62 more were subsequently released under the orders of the High Court under the same Rule. Total 336 prisoners were released. Presently, there are about 35 prisoners in jail, inclusive of those who would be reporting shortly after completion of parole / furlough leave.
5. We are of the view that the Government Circular dated 08.05.2020 and Rule 19(1)(C) was not aimed at emptying the prisons. The object was to de-congest the prisons so that those eligible could be released on emergency parole and the prison authorities could manage the health and hygiene of the rest of the prisoners so as to prevent the outbreak of the corona virus inside the prison. With this object in view and taking into account that there are only about 35 prisoners in the Open Prison, Paithan, which has a capacity of 500 prisoners, we do not find it appropriate to allow this petition.
6. We are aware that, by several orders, we have allowed such petitions. However, when those orders were passed, the learned A.P.P. appearing in those matters did not have the advantage of the said information as they were not equipped with the statistical data, which the learned A.P.P. has placed before us today. Had we had this statistical data / figures before us when we passed our earlier orders with reference to the Open Prison, Paithan, probably we would have had a different view.
In view of the above, this petition is rejected."
14. On 14.09.2020, this Court (Coram: T. V. Nalawade & M. G. Sewlikar, JJ.) passed an order in Criminal Application No. 1524 of 2020 in Writ Petition No. 685 of 2020 filed by Faruk S/o Mustak Khan Versus The State of Maharashtra and connected applications and observed in paragraph 3 as under : -
SG Punde, PA 11/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 :::
APPLN4118.2019 [Nagnath v State] "3. In the past, this Court had occasion to interpret the aforesaid Notification in respect of period of parole in the case of Dinesh Vs. State and others in Cri. Writ Petition No. 578 of 2020, decided on 30th June 2020. In the Notification, it is mentioned that the initial period of parole will be 45 days and it shall stand extended periodically in blocks of 30 days each, till such time that the said notification is in force. This Court has laid down that the meaning of this provision is that there will be automatic extension of the parole period till the notification is in force.
Even when such meaning is there and the interpretation is done by this Court, it appears that the respondents are asking the prisoners to give application for extension every time for getting extension of parole. There is news item both in print media and electronic media that some persons had asked prisoners to give money either to accept their applications or for consideration of their application. When there is automatic extension of parole period, there is no need of giving application every time when parole period expires. In view of lock-down which was declared and the object behind the notification, no other interpretation is possible. It appears that there is also some wrong notion that when the Court has granted parole under order, the period mentioned in the order will come to an end and after that period application will be required. When order is made by the Court under the notification dated 8th May 2020, one needs to go with the presumption that such order is similar to the order made by the Prisoner Authority, Superintendent. Thus, in that case also, no application is required to be made by the prisoners for extension of parole period. So many applications are received of such nature by this Court and that has increased the work of this Court unnecessarily. This Court has already expressed that it is always open to the Government to withdraw the notification and call back the prisoners. That can be done but till the notification is there, the parole period will get extended automatically in view of the aforesaid nature of the Notification. In the result, all these applications are allowed. It is hereby declared that the parole period automatically got extended in view of the wordings of the Notification. It is also hereby directed that the respondents are to see that no applications for extension of parole period are asked from any prisoner when the prisoners are released by Jail Authority under the notification or due to the order of this Court made under the Notification dated 8 th May 2020. Unless the Court has specifically declared that beyond that period there will not be extension of the parole period, the authority needs to go with the presumption that there is automatic extension of the parole period."
15. The learned Division Bench of this Court at the Principal Seat at Mumbai has passed an order on 13.08.2020 in Criminal Writ SG Punde, PA 12/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] Petition ASDB-LD-VC No. 235 of 2020 filed by Jafar Shaikh Versus State of Maharashtra, observing in paragraph nos. 12 and 15 as under: -
"12. The object behind promulgation of Rule, 2020 was completely lost sight of by the Superintendent, Prisons. The avowed object was to ensure the safety of the inmates as well as the prison staff by decongesting the prisons. If the benefitof the aforesaid Rule which empowers the Superintendent to release a prisoner on emergency parole is declined by taking a very hyper-technical view of the matter, the very object of promulgation of Rule would stand frustrated.
15. Hence the following order:
(i) The petition stands allowed.
(ii) The impugned order dated 22nd May, 2020 passed by the
Superintendent, Yerwada Central Prison, Pune stands quashed and set aside.
(iii) The Petitioner Jafar Shaikh be released on emergency parole under Rule 19(1)(C)(ii) for the period of 45 days on usual conditions.
(iv) A formal order incorporating the conditions and the day of return of the prisoner to prison be passed by the Superintendent, Yerwada Central Prison, Pune.
(v) The Superintendent, Yerwada Central Prison, Pune shall pass appropriate orders regarding the extension of the parole in accordance with the Rules, 2020, if the Notification issued by the State Government under the Epidemics Diseases Act, 1897 continues to operate on the day the said period of 45 days expires."
[Empasis supplied.]
16. On 29.10.2020, the learned Division Bench of this Court at the Principal Seat, has delivered a Judgment in Criminal Writ Petition St. No. 3027 of 2020 filed by Dhananjay S/o. Rajaram Dighe Versus The State of Maharashtra, thereby concluding in paragraph 10, SG Punde, PA 13/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] which reads thus: -
"10. Hence, the following order :-
ORDER
1. The impugned order dated 26.09.2020 passed by the Respondent is quashed and set aside.
2. The Petitioner is entitled to be released on emergency Covid-19 parole in terms of the Notification dated 08.05.2020 subject to the Respondent/competent authority imposing such conditions which would ensure that the Petitioner will surrender in time upon expiry of the emergency parole period.
3. Needless to mention that the Petitioner shall not misuse the liberty of his release on emergency Covid-19 parole and strictly abide by the terms and conditions imposed by the Respondent.
4. Rule is made absolute in the above terms."
[Empasis supplied.]
17. This Court (Coram: Ravindra V. Ghuge & Shrikant D. Kulkarni, JJ.) has delivered an order on 18.08.2020 in Criminal Writ Petition No. 866 of 2020 filed by Niteen s/o Shamrao Samudre Versus The State of Maharashtra and Anr., and has concluded in paragraph 6 as under : -
"6. In view of the above, this petition is allowed. The impugned order dated 20.05.2020 is quashed and set aside and the petitioner would be entitled for emergency parole for 45 days from 31.08.2020, by following the usual procedure and under conditions, laid down in law. Subject to the rights of the petitioner to seek extension of the emergency parole, he shall report back to the prison on or before the 45 th day and shall not remain away from prison on the pretext that his application for extension is pending."
18. In the above backdrop, it is obvious that divergent orders have been passed by different learned Division Benches with regard to SG Punde, PA 14/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] the requirement of an application for extension of emergency parole and for surrendering after such leave granted for a period of 45 days under Rule 19(1)(C) of the 1959 Rules, comes to an end. In Dinesh Thakur (supra), it was held, though in a very short order and wherein all the provisions of the 1959 Rules were not referred to, that a prisoner gets automatic extension of emergency parole in blocks of 30 days. In Sonu Shrinath (supra), this Court held that the prisoner will have to file an application for extension if he desires an extension to his emergency parole leave granted under Rule 19(1)(C) of the 1959 Rules. The order in Dinesh Thakur (supra), was not cited. In Jafar Shaikh (supra), it was ordered by the learned Division Bench at Mumbai in paragraph no. 15(v) that the Superintendent, Yerwada Central Prison, Pune shall pass appropriate orders regarding the extesion of the parole in accordance with the Rules, if the notification issued by the State Government continues to operate on the day the period of 45 days expires. In Dhananjay Dighe (supra), the learned Division Bench at Mumbai directed in paragraph 10(2) that, the respondent-competent authority would impose such conditions on the prisoner while granting him emergency parole that would ensure that the prisoner will surrender in time upon expiry of the emergency parole period.
SG Punde, PA 15/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 :::
APPLN4118.2019 [Nagnath v State]
19. Having perused the State notification dated 08.05.2020, we find that the first sentence and the second sentence in Rule 19(1)(C)
(i) run contrary to each other. The first sentence reads as "For convicted Prisoners whose maximum punishment is 7 years or less, on their application shall be favorably considered for release on emergency parole by the Superintendent of Prison for a period of 45 days or till such time that the State Government withdraws the Notification issued under the Epidemics Diseases Act, 1897, WHICHEVER IS EARLIER". The immediate next sentence reads as "The initial period of 45 days shall stand extended periodically in blocks of 30 days each, till such time that the said Notification is in force (in the event the said Notification is not issued within the first 45 days). We do find a contradiction in these two sentences. The draftsman intended in the first sentence that even if the notification dated 08.05.2020 is not withdrawn or substituted and the period of 45 days has expired, the event occuring earlier would end the leave. If the expiration of 45 days is earlier to the withdrawal of the notification, the event occuring earlier would have binding effect. Had the words "whichever is earlier" been drafted as "whichever is later" it would be obvious that the State intended to continue the emergency parole leave of a prisoner even beyond 45 days until the notification is withdrawn. The subsequent sentence starting with "the SG Punde, PA 16/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] initial period of 45 days shall stand extended......", is contrary to the intention noticed in the first sentence.
20. We, therefore, find that this issue could be advantageously dealt with by a Larger Bench. We are, therefore, formulating the following issue and we make a requst to The Hon'ble The Chief Justice of the Bombay High Court under Chapter-I Rule 8 of the Bombay High Court Appellate Side Rules, 1960 : -
Issue no. 1:- Whether the first sentence in Rule 19(1)(C)(i) "For convicted Prisoners whose maximum punishment is 7 years or less, on their application shall be favorably considered for release on emergency parole by the Superintendent of Prison for a period of 45 days or till such time that the State Government withdraws the Notification issued under the Epidemics Diseases Act, 1897, WHICHEVER IS EARLIER" is inconsistent to the subsequent sentence "The initial period of 45 days shall stand extended periodically in blocks of 30 days each, till such time that the said Notification is in force (in the event the said Notification is not issued within the first 45 days), thereby leading to an anomalous situation?
21. In addition to the above, since we find that the views taken by the learned Division Benches of this Court in Dinesh Thakur SG Punde, PA 17/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] (supra), Sonu Shrinath (supra), Jafar Shaikh (supra) and Dhananjay Dighe (supra) being contrary as regards whether a prisoner is required to indicate his desire of seeking extension of his emergency parole leave by filing an application, this issue also could be dealt with by a Larger Bench.
22. We have perused the order dated 23.03.2020 passed by the Hon'ble Supreme Court in Suo Motu Writ Petition (C) No. 1/2020, wherein it has been noted that, some States have been taking measures to decongest the prisons by transferring the prisoners from congested prisons to other prisons where the number of prisoners is low. The State of Punjab was directed to identify places in and around the prison, which can be used as a temporary prison in case there is an outbreak of the virus. It was also observed in the said order that the prisons must ensure maximum possible distancing among the prisoners including undertrials. It was also observed, that transfer of prisoners from one prison to another for routine reasons must not be resorted to except for decongestion to ensure social distancing and medical assitance to an ill person. A direction was issued to every State and Union Territory to consitute a High Power Committee comprisong of (i) Chairman of the State Legal Services Committee, (ii) The Principal Secretary (Home/Prison), and (iii) SG Punde, PA 18/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] Director General of Prison(s), to determine class of prisoners who can be released on parole or an interim bail for such period as may be thought appropriate.
23. The High Power Committee for the State of Maharashtra has noted in the Minutes of its Meeting dated 25.03.2020, that, its decision would apply only to such prisoners, when, in the opinion of the concened Jailer, keeping in view the over all infrastructure available at the concerned Jail and the number of prisoners, it is not practically possible to maintain the required social distance between the prisoners. In a subsequent order passed by the Hon'ble Apex Court in the same proceedings on 13.04.2020, the statement of the State of Bihar that the prisons in Bihar are not overcrowded was recorded and it was made clear that the Apex Court has not directed the States/Union Territories to compulsorily release the prisoners from their respective prisons and that the purpose of the earlier order of the Apex Court dated 23.03.2020 was to assess the situation in the respective prisons in the States and to release certain prisoners. We, therefore, find that the anxiety expressed by the Hon'ble Apex Court was as regards decongestion of the prisons and it was not intended that the prisons should be emptied and all the prisoners should be let loose.
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APPLN4118.2019 [Nagnath v State]
24. Considering the mandate of the second proviso and the undertaking below Rule 24-A, notwithstanding the deletion of Rule 25, we are of the view that, a prisoner who avails of emergency parole leave by moving an application under Rule 19(1)(C) of the 1959 Rules, will have to move a formal application, for expressing his desire to have extension of his emergency parole leave and such application will have to be filed before the expiry of his emergency parole leave granted under Rule 19(1)(C) of the 1959 Rules. We are, therefore, formulating the following issue and referring the same to The Hon'ble The Chief Justice of the Bombay High Court under Chapter-I Rule 8 of the Bombay High Court Appellate Side Rules, 1960: -
Issue no. 2: Considering the effect of the second proviso and the undertaking mandated under Rule 24A read with Rule 27(2) and the first sentence under Rule 19(1)(C)(i) of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959, whether a prisoner would have to make an application for seeking extension of the emergency parole leave prior to the completion of his period of such leave granted under Rule 19(1)(C)(i)?
25. Insofar as the grievance of the applicant before us in Criminal Application No. 4118 of 2019 is concerned and keeping in SG Punde, PA 20/21 ::: Uploaded on - 09/11/2020 ::: Downloaded on - 20/12/2020 17:05:45 ::: APPLN4118.2019 [Nagnath v State] view that he is presently on emergency parole leave, we deem it approriate to direct the applicant to move an application for extension of emergency parole leave prior to 08.11.2020 and the concerned Jail Superintendent would grant an extension of 30 days upto 07.12.2020, keeping in view the pendency of the present application in which the applicant seeks suspension of sentence and enlargement on bail.
26. Stand over to 01.12.2020, for considering Criminal Application No. 4118 of 2019.
27. The learned Registrar (Judicial) of this Bench, shall place this order before The Hon'ble the Chief Justice of the Bombay High Court under Chapter-I Rule 8 of the Bombay High Court Appellate Side Rules, 1960.
[ B. U. DEBADWAR ] [ RAVINDRA V. GHUGE ]
JUDGE JUDGE
SG Punde, PA 21/21
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