Bombay High Court
Santosh Mahadev Shinde vs The State Of Maharashtra And Ors on 17 December, 2020
Author: M.S. Karnik
Bench: S.S.Shinde, M.S.Karnik
cri.wpst.4216-20.odt
Bhogale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION ST. NO. 4216 OF 2020
Santosh Mahadev Shinde
Age: 38 years, Occ:Prisoner
Convict No.C-8202
At present lodged in
Central Prison, Nashik road, Nashik.
Permanent address:at Sumthana,
Post. Bitergaon, Tq. Renapur, Dist. Latur. .. Petitioner
Versus
1. The State of Maharashtra
Through its Principal Secretary,
Home department
Mantralaya, Mumbai-32.
2. The Divisional Commissioner
Nashik Division, Nashik.
Office at Commissioner office Nashik road
Nashik.
3. The Deputy Inspector General of Police (Prison)
Central division, Central prison, Harsul
Aurangabad.
4. The Superintendent of Prison
Central Prison, Nashik road,
Nashik. .. Respondents
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Mr. M.M. Chaudhari, Advocate for the Petitioner.
Mrs. S.D. Shinde, APP, for Respondent-State.
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CORAM : S.S.SHINDE &
M.S.KARNIK, JJ.
RESERVED ON : DECEMBER 15, 2020
PRONOUNCED ON : DECEMBER 17, 2020
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cri.wpst.4216-20.odt
JUDGMENT :(PER M.S. KARNIK, J.) Rule. Rule is made returnable forthwith. Heard fnally with the consent of learned counsel appearing for the parties.
2. The present Petition is fled under Article 226 of the Constitution of India by the Petitioner for release on emergency Covid-19 parole. By a communication dated 05.10.2020 the Respondent No.4 refused to release the Petitioner on emergency Covid-19 parole. The Petitioner was convicted on 17.03.2010 for the ofence punishable under Section 364A and 394 of the IPC and sentenced to undergo imprisonment for life. Up to the year 2017 the Petitioner had availed parole leave on four occasion and furlough leave on two occasion. The Petitioner has undergone more than 10 years of actual imprisonment. The application of the Petitioner is rejected in view of the Notifcation dated 16.04.2018 of the State Government which provides that those convicts who are undergoing sentence for the ofence punishable under Section 392 and 402 of the IPC should not be granted furlough. In our opinion, the Notifcation dated 16.04.2018 can have no application in case of the Petitioner who was sentenced and was already undergoing imprisonment prior to the issuance of the Notifcation. The Petitioner who was entitled to avail furlough/parole under the Rules prior to the 2/4 cri.wpst.4216-20.odt issuance of the Notifcation dated 16.04.2018 cannot be deprived the said beneft merely on issuance of the said Notifcation as it is well settled that penal provisions always operate prospectively.
3. We draw support from the decision of this Court in the case of Deepak @ Wireless s/o Subhash Shinde Shinde Vs. The State of Maharashtra & ors. 1 The said decision would squarely cover the case of the Petitioner. Paragraph 7 of the said decision reads thus :-
"7. In the past, the petitioner had been released on furlough. He returned jail on the days on which his furlough/parole leave was to over. The Petitioner has now sought for parole leave so as to meet his ailing son. The medical certifcate is on record. Rules 4(2) and 4(3) of the Rules of 2018 creating disqualifcation for release on furlough and parole on the ground of there being conviction for the ofences punishable under Sections 392 to 402 of the IPC, have been recently introduced. The Rule is penal in nature. It needs no mention that penal provision always operates prospectively. The issue in this regard has been referred to for a decision by a Full Bench of this Court."
4. It is not in dispute that on several occasions in the past, Petitioner had been granted parole leave and furlough and he surrendered on time. The Petitioner has undergone more than 10 years of imprisonment. In these circumstances, it would be 1 Criminal Writ Petition No.1460 of 2018 (Aurangabad Bench) 3/4 cri.wpst.4216-20.odt unfair and unreasonable to deprive the Petitioner the beneft of the Notifcation dated 08.05.2020 issued by the State Government. The Writ Petition therefore deserves to be allowed. Hence, the following order :-
ORDER i. The Writ Petition is allowed.
ii. The impugned order dated 05.10.2020 passed by the Respondent No.4 is quashed and set aside.
iii. The Petitioner-Santosh Mahadev Shinde be released on emergency Covid-19 parole on usual terms and conditions as the Respondent deem ft and proper to impose under the circumstances.
iv. The Petitioner shall strictly abide by the conditions imposed by the Respondent.
5. Rule is made absolute accordingly.
6. The Writ Petition is disposed of accordingly.
(M.S.KARNIK, J.) (S.S.SHINDE, J.)
Digitally
signed by
Diksha Diksha Rane
Date:
Rane 2020.12.17
11:56:01
+0530
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