Bombay High Court
Sharafat Ali Liyakat Ali Through His ... vs The State Of Maharashtra And Anr on 19 May, 2021
Equivalent citations: AIRONLINE 2021 BOM 2462
Author: Surendra P. Tavade
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.1979 OF 2021
Sharafat Ali Liyakat Ali .... Petitioner
Versus
The State of Maharashtra & Anr. ... Respondents
.........
Mr. Aniket Vagal for the Petitioners.
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 of Respondent No.2 passed on 19.03.2021 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. It is contended that due to the current pandemic situation, the State Government has issued a notification to decongest the jail by releasing the convicts on emergency parole. The Petitioner had Aarti Palkar ::: Uploaded on - 22/05/2021 ::: Downloaded on - 12/09/2021 10:35:27 ::: 2/5 26.WP.1979.2021.doc applied for emergency parole, but Respondent No.2 has rejected his application on the ground that the he was never released on parole on earlier occasion. The said order was challenged by the Petitioner before this Court by filing Writ Petition No.183 of 2021 before this Court. The Division Bench of this Court (Coram : S.S. Shinde & Manish Pitale, JJ) by allowing the Writ Petition No.183/2021, 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 said came to be dismissed on the following grounds :-
a) Proper care of the prisoners are being taken and they are now provided with masks and sanitizers and jail has now less prisoners than it capacity.
b) The prisoner was never previously released on furlough or parole.
c) There is possibility of absconding of the prisoner if release on furlough or parole.
3. Heard the learned Advocate for the Petitioner, as well as the learned APP for the State. Perused the impugned order dated 19 th March, 2021 passed by the Respondent No.2.
4. The learned Counsel for the Petitioner contended that the Petitioner has completed 10 years in prison. He has no other efficacious remedy than to move the 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 in Nashik Prison, the Aarti Palkar ::: Uploaded on - 22/05/2021 ::: Downloaded on - 12/09/2021 10:35:27 ::: 3/5 26.WP.1979.2021.doc capacity of the convicts in Nashik Prison has been reduced to 2311, but will the rules of social distancing are not being followed and more than 50 convicts are lodged in one barrack admeauring 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 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 appre 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 Aarti Palkar ::: Uploaded on - 22/05/2021 ::: Downloaded on - 12/09/2021 10:35:27 ::: 4/5 26.WP.1979.2021.doc 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 Authority. He has relied on the ratio laid down in Rajesh s/o Madhukar Patil vs. The State of Maharashtra in 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 08.05.2020 for releasing the prisoner 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 19.03.2021 is quashed and set aside.
c) The Petitioner be released on parole leave on such conditions as may be specified for the period of release, by the competent authority.
d) All the concerned to act on an authenticated copy of this order.
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e) Writ Petition is disposed of.
( SURENDRA P. TAVADE, J. ) ( S.J. KATHAWALLA, J. )
Aarti Palkar
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