Document Fragment View

Matching Fragments

2. The petitioner was arrested on 7/12/2013 for the above mentioned ofences and by the judgment and order rendered by the Additional Sessions Judge, Nanded was sentenced to undergo imprisonment for 10 years for the ofences punishable under Section 376 of the IPC and Sections 3,4, 5 of the POCSO Act.

3. The learned counsel for the petitioner submitted that the petitioner was once released on parole for attending marriage on 10/4/2019 and he surrendered on time i.e. on 20/4/2019. Learned counsel invited our attention to the Rule 19 (1) (C) of the "The Maharashtra Prisons (Mumbai Furlough and Parole (Amendment) Rules, 2020 (hereinafter referred to as "the said Rules" for short) which is extracted in paragraph 8 of this order and especially the proviso thereof to submit that as the petitioner is not convicted under the provisions of MCOC, PMLA, MPID, NDPS, UAPA, the condition precedent to release the petitioner on parole as classifed by the High Powered Committee stands satisfed. In his submission, the beneft of Clause (1) and (2) of Rule 19 is available to the petitioner as POCSO Act is not specifed as a Special Act in the proviso.

10. When the matter was listed today, we brought to the notice of learned counsel for petitioner the decision of this Court in the case of Subham s/o. Devidas Gajbhare. Learned counsel for the petitioner had himself appeared in the case of Subham s/o. Devidas Gajbhare. This Court considered the provisions of Rule 4(21) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959 which shows that when there is a conviction for 4 Criminal Writ Petition No.520/2020 (Aurangabad Bench) 5 Criminal Writ Petition No. 1135/2020 (Aurangabad Bench) cri.wpst. 3206-20.doc sexual ofences against minor then beneft of furlough cannot be given to such a prisoner. This Court considered the guidelines dated 11th May, 2020 of the High Powered Committee wherein it has been advised not to give beneft of emergency (Covid-19) parole when conviction is for the ofence punishable under Section 366(A) and also under Section 376 of the IPC. It is observed that in Rule 4(12), rape is also covered and so such convict is not entitled to get beneft of the parole and furlough. We fnd that the issue involved in Subham s/o. Devidas Gajbhare's case is similar to the one in the present case. As learned counsel for the petitioner had appeared in Subham s/o. Devidas Gajbhare's case which was decided as recently as on 13th October, 2020, following the best practices of the Bar, we would have expected the Counsel for the petitioner to have brought this decision to our notice though the same is adverse to the petitioner's cause. Learned counsel for the petitioner has tendered apology for the same. Be that as it may, we proceed to deal with the issue in the light of the decisions above stated.

11. The Government of Maharashtra made the rules called "The Maharashtra Prisons (Mumbai Furlough and Parole (Amendment) Rules, 2020 thereby amending sub-Rule (1) of Rule 19 of the Maharashtra Prisons (Mumbai Furlough and Parole) cri.wpst. 3206-20.doc Rules, 1959. The following Clause was added after Clause (B) in sub-Rule (1) of Rule 19 of the said Rules as by way of an amendment :

"(C) On declaration of epidemic under the Epidemic Diseases Act, 1897, by State Government :
In view of the nature of conditions imposed in Notifcation dated 8 th May 2020, the Rules of Parole and Furlough need to be seen for consideration of emergency parole under the Notifcation dated 8 th May 2020. Rule 4(21) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959 shows that when there is conviction for Sexual Ofences against minor then beneft of the furlough cannot be given to such a prisoner. Today, the learned Addl. Public Prosecutor produced on record the new guidelines given by the High Power Committee constituted for present purpose. The guidelines dated 11 th May 2020 show that the Committee has advised not to give beneft when conviction is for ofence punishable U/S. 366(A) and also U/S. 376 of I.P.C. In Rule 4(12), rape is also covered and so such convict is not entitled to get beneft of the parole and furlough. In view of these circumstances, this Court holds that no error can be found in the order made by the respondent. The writ petition stands dismissed."