Bombay High Court
Vijay Vilasrao Sutare (C-8986) vs The State Of Maharashtra And Anr on 14 September, 2020
Equivalent citations: AIRONLINE 2020 BOM 1408
Author: T.V. Nalawade
Bench: T.V. Nalawade, M.G. Sewlikar
Cri.W.P.No.972/20
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 972 OF 2020
Vijay Vilasrao Sutare, C-8986
Age 24 years, Occu. Nil,
R/o. Harsul Prison, Aurangabad
Tq. & Dist. Aurangabad. ....Petitioner.
Versus
1. The State of Maharashtra,
Through, Secretary, home department,
State of Maharashtra, Mantralay Mumbai.
2. The superintendant
Of the central Prison, harsul,
Tq. & Dist. Aurangabad. ....Respondents.
Mr. Ravindra Nirmal, Advocate for petitioner.
Mr. Y.G. Gujarathi, APP for respondents.
CORAM : T.V. NALAWADE AND
M.G. SEWLIKAR, JJ.
DATED : 14/09/2020.
ORDER :[PER T.V. NALAWADE, J.]
1. The petition is fled for challenging the order made by respondent dated 14.8.2020 by which the application made by the petitioner for getting emergency parole under Government Notifcation dated 8.5.2020 is rejected. Both the sides are heard.
2. The respondent has given reason of rejection that the petitioner is convicted for the ofences punishable under the provisions of the Protection of Children From Sexual Ofences ::: Uploaded on - 15/09/2020 ::: Downloaded on - 16/09/2020 05:11:27 ::: Cri.W.P.No.972/20 2 (POCSO) Act (sections 6 and 12) and he is also convicted for the ofences punishable under sections 363 and 366 of Indian Penal Code (I.P.C.). The sentence of imprisonment of 10 years is given for these ofences. Reasoning is given that in view of the Rules in respect of the parole and furlough and in view of the exceptions made out in notifcation dated 8.5.2020, he is not entitled to get the emergency parole.
3. Though in the order, it is mentioned that there is other reason that he was not released on two occasions in the past on either furlough or parole as provided in the notifcation and due to that reason also, he is not entitled to get emergency parole, that reason need not be considered in detail in the present matter as that point is decided in the past in other matters by this Court. But, this condition needs to be considered from diferent angle.
4. The particulars given by the petitioner show that he was arrested in 2018 and he came to be convicted on 9.2.2018. This circumstance shows that he has not completed three years of imprisonment. Thus, under Prisons (Bombay Furlough and Parole) Rules, 1959 he has not become eligible to get furlough. Emergency parole of the nature mentioned in the notifcation dated 8.5.2020 is also diferent kind of parole and so, the condition that he ought to have come out of Jail on two occasions in the past needs to be ::: Uploaded on - 15/09/2020 ::: Downloaded on - 16/09/2020 05:11:27 ::: Cri.W.P.No.972/20 3 considered to ascertain the eligibility period. A prisoner can come out on furlough only after completing three years of actual imprisonment. From that angle, it can be said that he is not eligible to get emergency parole. The rules of eligibility to get furlough leave are applicable for getting parole under Rule 19 (2).
5. The notifcation dated 8.5.2020 needs to be quoted here as the learned counsel for the petitioner is placing reliance on order made by Nagpur Bench of this Court in Criminal Writ Petition No. 559/2019 dated 14.07.2020 (Vishal Dagduji Gavai Vs. State of Maharashtra and Anr.). In the order, the Court has observed that ofences punishable under POCSO Act are not mentioned in the notifcation dated 8.5.2020 and so, these ofences are not made exceptions to the scheme prepared by the Government in the notifcation. The notifcation is as under :-
"HOME DEPARTMENT Mantralaya, Madam Cama Marg, Hutatma Rajguru Chowk, Mumbai, 400032, dated the 8th May, 2020 NOTIFICATION PRISONS ACT, 1984 No. APP-0920/CR. 179/2020/PRS-3 - In exercise of the powers Conferred by clauses (5) and (28) of section 59 of the Prisons Act (IX of 1894), in its application to the State of Maharashtra, and of all other powers enabling it in that behalf, the Government of Maharashtra hereby makes the following rules further to amend the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959, namely: -::: Uploaded on - 15/09/2020 ::: Downloaded on - 16/09/2020 05:11:27 ::: Cri.W.P.No.972/20 4
1. The rules may be called the Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment) Rules, 2020.
2. In sub-rule -(1) of rule 19 of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959, after clause (B) the following clause shall be added namely: -
"(C) On declaration of epidemic under the Epidemic Diseases Act, 1897, by State Government:
(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 Notifcation issued under the Epidemics Diseases Act, 1897, whichever is earlier. The initial period of 45 days shall stand extended periodically in blocks of 30 days each, till such time that the said Notifcation is in force (in the event the said Notifcation is not issued within the frst 45 days).
The convicted prisoners shall report to the concerned police station within whose jurisdiction they are residing, once in every 30 days.
(ii) For convicted prisoners whose maximum sentence is above 7 years shall on their application be appropriately considered for release on emergency parole by Superintendent of Prison, if the convict has returned to prison on time on last 2 releases (whether on parole or furlough), for the period of 45 days or till such time that the State Government withdraws the Notifcation issued under the Epidemics Diseases Act, 1897, whichever is earlier. The initial period of 45 days shall stand extended periodically in blocks of 30 days each, till such time that the said Notifcation is in force (in the event the said Notifcation is not issued within the frst 45 days). The convicted prisoners shall report to the concerned police station within whose jurisdiction they are residing, once in every 30 days;
Provided that the aforesaid directions shall not apply ::: Uploaded on - 15/09/2020 ::: Downloaded on - 16/09/2020 05:11:27 ::: Cri.W.P.No.972/20 5 to convicted prisoners convicted for serious economic ofences or bank scams or ofences under Special Acts (other than IPC) like MCOC, PMLA, MPID, NDPS, UAPA etc. (which provide for additional restrictions on grant of bail in addition to those under the Code of Criminal Procedure, 1973 (2 of 1974) and also presently to foreign nationals and prisoners having their place of residence out of the State of Maharashtra.
By order and in the name of the Governor of Maharashtra, N.S. KARAD, Deputy Secretary to Government."
The aforesaid notifcation shows that some exceptions are mentioned in the notifcation, but those exceptions are not only the exceptions. The wording used shows that the persons who are convicted under Special Enactments like MCOC, MPID, NDPS etc. are not entitled to get beneft of this notifcation. The words are used 'like' and 'etc.' and these words show that the list of Special Acts given in the notifcation is not exhaustive and they are only instances given in the notifcation. What can be the other special ofences or other ofences can be seen from the Prison Rules 1959. The amendment made in the year 2018 to Rule 4 shows that clause (21) came to be added in Rule 4 and it is as under :-
"(21) Those involved in sexual ofences against minor and human trafcking."
Thus, the sexual ofences against minor are also mentioned in the ::: Uploaded on - 15/09/2020 ::: Downloaded on - 16/09/2020 05:11:27 ::: Cri.W.P.No.972/20 6 Rule to show that these persons are not eligible for getting furlough. This Rule needs to be read with Rule 19. In Rule 19, there are two parts viz. emergency parole and regular parole. The notifcation dated 8.5.2020 shows that the parole is treated as emergency parole. If we compare the notifcation with part I in respect of emergency parole of Rule 19, it can be said that there is something more in notifcation dated 8.5.2020. Rule 19 needs to be read with Rule 4. In Rule 19 (2), it is mentioned that all prisoners eligible for furlough shall be eligible for regular parole. Regular parole can be of 45 days and it can be extended up to 60 days. Thus, it can be said that notifcation has used part II of Rule 19 and not part I of Rule 19. It is already observed that in Rule 4 (21), the prisoners convicted for sexual ofences against minor cannot get furlough and so, they are not entitled to get emergency parole under notifcation dated 8.5.2020.
6. The order made by Nagpur Bench of this Court does not show that amendment made in the Rules of 1959 in 2018 was brought to the notice of the Court. Further, the interpretation of the notifcation as mentioned above is also not made. The Court has now considered as to whether the convicts under POCSO Act are excluded in notifcation dated 8.5.2020. It is already observed that the list given is not that exhaustive and aforesaid provisions also need to be considered and interpreted while ascertaining the eligibility for giving ::: Uploaded on - 15/09/2020 ::: Downloaded on - 16/09/2020 05:11:27 ::: Cri.W.P.No.972/20 7 emergency parole.
7. Due to aforesaid reasons, this Court holds that the observations made by Nagpur Bench of this Court are of no use to the petitioner. There is no reason to interfere in the order made by the respondent and for both the grounds given above, this Court holds that emergency parole could not have granted to the petitioner. In the result, the petition stands dismissed.
[ M.G. SEWLIKAR, J.] [T.V. NALAWADE, J.]
ssc/
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