Indian Kanoon - Search engine for Indian Law

1. All these Criminal Writ Petitions are directed against the orders passed by the respective Jail Superintendents of the Harsool Jail at Aurangabad and Nashik Road Central Jail at Nashik.

4 CrimAppln.1843.2020

2. We have taken up all these petitions together for adjudication, solely for the reason that, in all these petitions, the impugned orders rejecting the applications of these petitioners for emergency parole under Rule 19 (1)(C) of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959 (hereinafter referred to as "1959 Rules"), are based on a solitary ground that none of these petitioners have availed of Furlough or Parole leave on two occasions. The State of Maharashtra has introduced a Circular dated 08-05-2020 in view of the recommendations of the High Power Committee and this led to the introduction of Rule 19(1)(C) in the 1959 Rules.

5 CrimAppln.1843.2020

5. We are conscious of the fact that, Rule 19(1)(C) introduced by virtue of the State circular dated 08-05-2020, was in an unprecedented situation of the outbreak of COVID-19 pandemic. The Wuhan virus led to such a situation and on the recommendations of the High Power Committee coupled with the report of the Additional Director General of Police (Prisons) Shri Sunil B. Ramanand, I.P.S. dated 10-05-2020, the emergency parole rule was made applicable even to the undertrials, as a measure for containment of the COVID-19 pandemic and prevent an outbreak inside the prisons. We are also conscious of the fact that, the purpose of Rule 19(1)(C) is to decongest the prisons and not to empty the prisons and, therefore, emergency parole, would not be granted as a matter of rule if it is found that the maximum permissible occupancy and the actual occupancy in a particular prison would indicate to us that the strength of the prisoners can be dealt with by the prison authorities for preventing the outbreak of COVID -19.

6. We find it appropriate to firstly, deal with the primary issue involved in these petitions. The Jail Authorities have rejected the applications of the petitioners / kith and kin of the convicts / undertrials, only because the concerned candidate had not availed of furlough or parole leave on two occasions prior to moving the application under Rule 19 (1)(C).

6 CrimAppln.1843.2020

7. This Court dealt with this legal aspect in Kavita Dilip Baviskar Vs. The State of Maharashtra vide judgment dated 30-06-2020. This Court (Coram: Ravindra V. Ghuge & M.G. Sewlikar, JJ.) has passed an order on 24-07-2020 in Criminal Writ Petition No.666 of 2020 preferred by Ganesh s/o. Narayan Kindre Vs. The State of Maharashtra & Another concluding that, the failure on the part of any candidate in availing of furlough / parole leave on two occasions, would not be an embargo or a legal impediment for considering his application under Rule 19 (1)(C). Similar orders were passed by the same Bench on 24-07-2020 (Criminal Writ Petition Nos.666 of 2020 & 694 of 2020), 07-09-2020 (Criminal Writ Petition Nos.810 of 2020, 923 of 2020, 927 of 2020, 934 of 2020, 945 of 2020 & 955 of 2020), 18-08-2020 (Criminal Writ Petition No.875 of 2020) & 21-10-2020 (Criminal Writ Petition No.1246 of 2020) in identical petitions.

11. We are informed that the situation in the Aurangabad Central Prison is a bit worrying. In order to contain the pandemic and ensure that there is no outbreak in the prison, the inmate strength will have to be brought down. While saying so, we make it clear that, this would not mean that any candidate, who is otherwise not eligible under Rule 19 (1)(C) and the State Circular dated 08-05-2020 or any other circular introduced thereafter, should also be indiscreetly granted emergency parole. We are conscious of the fact that, convicts under the special acts, are not entitled for emergency parole. So also, a candidate who has not been reporting 9 CrimAppln.1843.2020 in time or is an absconder on earlier occasions of availing furlough / parole leave or a candidate who has a terrible criminal record, may not deserve the benefit of Rule 19(1)(C) considering the threat to the society at large.