Amended Parole Rule Having Pre-Condition Of Convict Returning Back In Time In Last 2 Releases, Applicable Only If Convict Is Released Twice: Bombay HC [Read Order]

The Bombay High Court on Thursday quashed and set aside the orders passed by Superintendent of Kolhapur Central Prison rejecting parole to three applicant convicts observing that the amended parole rule which states that convicts whose maximum sentence is above 7 years shall be considered for release on emergency parole if the convict has returned to prison on time on last 2 releases, is applicable only if the convict has been released on parole or furlough two times.

Division bench of Justice SS Shinde and Justice Madhav Jamdar were hearing a criminal writ petition filed by Milind Ashok Patil, Nishant Mane and Akshay Kondekar (deceased) lodged at Kolhapur Central jail.

The three petitioners and other three co-accused were held guilty and convicted by the judgment dated April 23, 2018, passed by the Additional Sessions Judge, Kolhapur for the offences punishable under Sections 302, 307, 143, 147, 148, 323, 504, 506 read with 149 and Section 120-B of IPC and sentenced to suffer imprisonment for life. They were also sentenced to suffer imprisonment for six years for having committed offences punishable under Section 307 read with Section 149 of the Indian Penal Code.

All six convicts were lodged at Kolhapur prison, preferred an appeal before the High Court against their conviction and sentence and it is still pending. In the meanwhile, one of the co-accused appellant Akshay Kondekar died while in jail. The petition states that as on July 15, a total of 631 prisoners have been detected positive in the State of Maharashtra whereas 4 prisoners have succumbed to death.

Petitioners initially sought to be released on emergency parole in view of the pandemic of Covid-19 and the decision of the State High Power Committee dated March 25, 2020 and May 8, 2020 and the amended Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959.

During the pendency of the petition, in an order dated June 15, Court directed the Jail Authorities to take decision on the applications of the petitioners seeking parole leave and to place before the Court such decisions on June 19, 2020. Accordingly, the Jail Authorities decided the applications seeking emergency parole leave by separate three orders dated June 16 and rejected applications of all three petitioners.

According to the petitioners, their applications seeking emergency parole were rejected by separate orders dated June 16 on the ground that, with respect to Ashok and Nishant, they were released once on furlough leave and they returned back to the jail within time, however, the requirement of amended Rule 19(i)(c)(ii) is that the convict has to return within time on last two releases (whether on parole or furlough) and as both of them have returned within time, but released only once and therefore, the said emergency parole application was rejected.

As far as Akshay Khondake is concerned, he was never released and/or never availed furlough or parole leave and therefore, his application was rejected. Meanwhile, two other convicts in the case, Pramod Shinde and Mahesh Patil, who is Ashok Patil's brother, were released on emergency parole as they fulfilled the condition laid out in the newly amended parole rule..

Petitioner's counsel Advocate Satish Talekar along with Adv Madhavi Ayyappan argued that the respondents are misreading the said amended parole rule and such interpretation shall not only lead to absurdity, but shall frustrate the very object of enacting the said amended parole rule.

Referring to the amended parole rule and observed-

"It is very clear that the said amended clause No. (C) is a provision made for short period and brought into existence for taking measures for protection of health and welfare of the prisoners to restrict the transmission of Covid-19, which inter alia includes that prisons should ensure maximum possible distancing among the prisoners and for this purpose, it has become necessary to prevent overcrowding of prisons in view of pandemic of Covid-19.

Thus, it is clear that the said amended provision is made for a short period and is brought into existence for the main objective of reducing the overcrowding in the jail."

The bench noted that while the object while granting the emergency parole is to see that overcrowding in prison is reduced, at the same time, it is to ensure that the habitual offender or prisoners who are likely to abscond are deprived of emergency parole and therefore, the aforesaid amended rule was brought into effect.

Finally, Justice Jamdar noted-

"However, if such convicts are never released either on furlough or parole previously or not released on 2 occasions either on furlough or parole and therefore, there was no occasion for them to return back within time on 2 occasions and therefore, not entitled for said benefit of emergency parole, such literal interpretation may lead to absurdity and in that event, there is no occasion to invoke condition imposed under the said amended Parole Rule."

Thus, the order rejecting applications filed by the petitioner convicts for emergency parole passed by Superintendent of Kolhapur Central Prison were quashed and set aside. Moreover, the applications were restored to file and the Superintendent has been directed to decide the same afresh within two weeks.

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