Research › Search › Judgment

Bombay High Court · body

2020 DIGILAW 738 (BOM)

Mukesh v. State Of Maharashtra

2020-06-02

ANIL S.KILOR, SUNIL B.SHUKRE

body2020
JUDGMENT Sunil B. Shukre, J. - Hearing was conducted through Video Conferencing and the learned counsel agreed that the audio and visual quality was proper. 2. Heard. Rule. Heard forthwith finally by consent of the parties. 3. Copy of the reply of respondents in the nature of instructions received from them by the learned Additional Public Prosecutor is taken on record. 4. It is not in dispute that the petitioner in the present case has been convicted and sentenced to suffer rigorous imprisonment for a period of five years. 5. Sub-Rule (1) of Rule 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959, (hereinafter called 'Prison Rules' for short) has been amended by the notification dated 8th May, 2020. The amendment in nutshell inserts one clause namely clause (C) which confers some benefit on the convicted prisoners by classifying them into two categories. The first category is of the prisoners whose maximum punishment is seven years or less and the second category relates to those whose maximum sentence is above seven years. For the sake of convenience, the clause (C) is reproduced is under: "(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 Notification 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 Notification is in force (in the event the said Notification is not issued within the first 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 emeregency 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 Notification 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 Notification is in force (in the event the said Notification is not issued within the first 45 days) The convicted prisoners shall report to the concerned police station within whose jurisdiction they are residing, once in every 30 days....." 6. A bare perusal of the provisions made in clause (C) of the Prison Rules should be enough for us to hold that previous conduct of a convicted prisoner whose maximum punishment is seven years or less in relation to jumping of parole or overstay is not relevant and whereas such conduct is relevant only for those convicted prisoners whose maximum sentence is above seven years. 7. In the present case, the petitioner does not dispute the fact that on the last occasion when released on parole, he had not surrendered himself before the jail authorities well in time and that the total period of his overstay was of 1426 days. It is this conduct of the petitioner which has formed the ground of opposition to this petition on the part of the respondents. However, as stated by us earlier, such conduct is not at all material sofar as those prisoners falling under the first category are concerned. As stated by us earlier, the petitioner's case falls in the first category. 8. In view of the above, we find that denial of benefit of notification dated 8th May, 2020 to the petitioner by the respondents is against the Prison Rules, as amended on 8th May, 2020 and therefore, the impugned action has to be termed as bad in law. 9. The petition is allowed. The respondents are directed to grant benefit of parole to the petitioner in terms of amended clause (C) of sub-rule (1) of Rule 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959, within a period of one week from the date of the order. 10. Rule is made absolute accordingly. 11. This order be uploaded on High Court website and also be communicated to the counsel appearing for the parties, either on the email address or on WhatsApp or by such other mode, as is permissible in law.