Covid Parole Pre-Condition Of Timely Reporting Back In Last 2 Releases Applicable Only If Convict Is Released Twice; Bombay HC Reiterates, Allows Release Of 3 Murder Convicts [Read Order]

Division bench of Justice Revati Mohite Dere and Justice MS Karnik were hearing a criminal writ petition filed by Milind Ashok Patil and two others, who were convicted by a 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.

The present petition was filed challenging the order dated August 6, 2020 passed by the Superintendent of Prisons, Kolhapur Central Prison rejecting the applications made by the petitioners for furlough leave citing the State High Power Committee's notification dated May 8, 2020 the amended Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959.

However, another division bench of the High Court had heard the petitions filed by the same petitioners in July and set aside the orders passed by Superintendent, Kolhapur Central Prison observing that the amended clause relied upon by him for rejecting the pleas was applicable only when convicts have been released twice, however if they have been released once like in the case of two of the petitioners, there is no need to invoke the said clause against them.

In July's order, Justice Jamdar had noted-

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."

After concluding that the Superintendent had once again rejected the applications filed by the petitioners without even considering the High Court's order, the bench said-

"In our considered opinion, merely because the petitioners could not avail of the benefit of furlough or parole leave twice was no ground for the Respondent No.3 to reject their applications in view of the order passed by this Court in Criminal Writ Petition No.65 of 2020. The impugned order suffers from total non-application of mind.

Despite the Court specifically directing the Respondent No.3 to consider the applications made by the Petitioners in the light of the observations made in the order dated 16.07.2020, the applications are rejected without considering the observations made by this Court. This Court has clearly held that the condition mentioned in the amended clause C (ii) of convict returning back on time on last 2 releases will be applicable only if the convict is released on 2 occasions either on furlough leave or parole leave or their applications are rejected on the ground that they are habitual offenders or likely to abscond."

This Court had clarified that the Authorities can impose suitable stringent conditions on the convicts who were never released on parole or furlough or released on 1 occasion and returned back within time, if they are otherwise entitled for the benefit of emergency parole. Thus, in the light of the order passed by this Court, the applications for emergency Covid parole of the Petitioners could not have been rejected only on the ground that they do not fulfill the condition of surrendering on time in respect of the last 2 releases. The impugned order is unsustainable, Court said.

Finally, the Court noted that the Jail Superintendent had not considered the third petitioner's plea which was also in sheer violation of the directions of this Court. The bench observed-

"However, we notice that the Petitioner No.3 is similarly placed as the Petitioner Nos.1 and 2. Therefore, we are extending the relief in favour of Petitioner No.3 also in the interest of justice."

Thus, the Jail Superintendent's order dated August 6 was quashed and set aside. Court held that petitioners are entitled to the benefit of the notification dated May 8 for release on emergency Covid parole and accordingly they be released on emergency Covid parole on such terms and conditions as the Superintendent deems fit and proper in terms of the notification.

Advocate SB Talekar along with Advocate Madhavi Ayyapan appeared for the petitioners and Additional Public Prosecutor SD Shinde for the respondent State.

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