"Emergency Parole Is Their Right"; Bombay HC Orders Enquiry By Chief Judicial Magistrates Of All Districts In Aurangabad On Allegations Of Bribery Against Jail Officials [Read Judgment]

Division bench of Justice TV Nalawade and Justice MG Sewlikar of the Aurangabad bench noted that the petitioners in the case, Kalekhan Pathan and Ramesh Nathbhajan had approached the Court in similar matter for similar directions and, Court had directed to decide the applications within fifteen days.

However, the applications were not decided by the jail authority, the petitioners were required to file the present proceedings. As there was apparent disobedience of the previous order, Court had expressed that it is likely to take action for disobedience of the order. On September 23, 2020, the APP produced on record copies of the order made on these two applications.

"It is clear that as this Court was about to take action, the jail authority was contacted and then the jail authorities decided the two applications on 23.09.2020. Both the applications are rejected by the jail authority."

The bench at Aurangabad as well the Principal bench at Mumbai has previously issued directions about the right of prisoners to get emergency parole. Reiterating interpretation of the said notification dated May 8 by the Courts, the bench said-

"The matter cannot be put to an end only by expressing that the petitioners may file another proceeding. Mang complaints are there which were taken cognizance by the TV channels and newspapers. It was published that the officers of the jail were demanding money even for acceptance of the application of the prisoners for emergency parole. This Court on many occasions had made orders for interpreting the Government notification dated 08.05.2020. This Court had given decisions as follows:-

i) The condition of notification that the prisoner ought to have availed furlough or parole atleast on two occasions cannot be used against him if he had not availed furlough or parole in the past though he was eligible for the same.

ii) This Court gave directions in mang matters to take decision as early as possible on the application given for emergency parole as the purpose behind the notification is to see the prisoners are protected from the infection of Covid-19 virus.

iii) This Court has held that in view of the wording of notification and object behind it, if the prisoner is given emergency parole under the notification, there is automatic extension of the parole period for further period as mentioned in the notification.

iv)This Court has observed that when a prisoner is eligible to get furlough, he has completed three gears of jail term and if he is convicted for imprisonment of life, he becomes eligible for consideration of emergency parole under notification dated 08.05.2020 and, the jail authority needs to consider all such applications together even when the prisoners have not fled application and the jail authority needs to pass order to the effect as to whether emergency parole can be availed by them or cannot be availed by them.

Court observed that although aforesaid orders are made in many matters, filing of the proceedings for aforesaid reliefs is going on. The jail authority is not ready to follow aforesaid orders and today's submission shows that as on today, as many as 130 applications filed for emergency parole are kept pending, Court was informed by the Public Prosecutor.

Importantly, referring to allegations of corruption against jail authorities and the possibility of ulterior motive in rejecting emergency parole, court said-

"There is a possibility that some prisoners who are eligible are not given the benefit of the notification dated 08.05.2020 for ulterior motive. As there are allegations of corruption against some officers and the circumstance that the previous jail superintendent came to be transferred due to such allegations and specific allegations are made by prisoners of demand of bribe, this Court has now decided to see that thorough inquiry is made into the matter. Such acts are serious and due to the action purpose behind the notifcation is defeated. The notification is issued due to a pandemic situation created by Covid-19 virus."

Thus, Court directed the Chief Judicial Magistrate/Additional Chief Judicial Magistrates of all the districts under the jurisdiction of this Court to go to the concerned central jail, open prisons, district prisons or the sub jails to make inquiry with the prisoners. They can take help of some Magistrate working with them so that the inquiry is completed as early as possible, Court said.

The bench observed-

"They are expected to see the Government notification dated 08.05.2020 and various orders made by this Court interpreting the above notification. They are expected to make inquiry with every prisoner to ascertain as to whether he was informed about his right to get emergency parole under the aforesaid notification. They are to ascertain as to whether the jail authority had refused to accept the application. They are to ascertain as to whether for some gratification, the applications of the prisoners were not accepted."

Moreover, keeping in mind the pandemic situation, Court directed the Jail Superintendents and the District Collectors of the districts to see that sufficient number of separate rooms are made available to the Chief Judicial Magistrates and the Magistrates who attend the jail for making inquiries. The rooms should be convenient and they should be sanitised everyday. The jail officer and the Collector to see that for protection PPE kit is made available to them on every occasion for their protection from Covid-19 virus as they are to make inquiry with the prisoners., Court said.

Finally, when the bench was informed that jail authorities delay the release of prisoners in cases where the Court has already granted release within seven days, the process has been delayed due to the condition of surety. Court said-

"The jail authority needs to hand over a copy of the order either of allowing emergency parole or rejection of emergency parole or giving of surety, immediately, on the same day to the prisoner and acknowledgement in writing is to be obtained from the prisoner for having received such copy."