STATE OF MAHARASHTRA Vs. GUDDU @ KANSHA WAHAB SHAIKH

JUDGEMENT

(1.) Events in the background which have led a division bench to frame the question for reference, would be pertinent to be referred to, succinctly.

(2.) The division bench, in its narration, has referred to that one Guddu alias Kansha Wahab Shaikh, respondent herein, had moved criminal writ petition No. 1362 of 2020 (upon conversion of criminal application in criminal appeal) in Bombay High Court, Aurangabad Bench aggrieved by an order rejecting his application for emergency parole passed by Superintendent of Central Prison, Nashik, on 28th September, 2020. Parole leave to said Guddu had been refused by the Superintendent, him having not availed parole or furlough leave on two occasions and that he had not completed three years in jail prior to his application for emergency parole under Rule 19 (1) (C) of the Prisons (Bombay Furlough and Parole) Rules, 1959 (the Parole Rules), introduced into Rule 19 under the Amendment Rules of 2020, in the wake of COVID-19 pandemic, finding that in the circumstances, he would not be eligible for release on emergency parole leave.

(3.) The criminal writ petition had been allowed, granting emergency parole leave to Guddu, pursuant to Rule 19 (1) (C) of the Parole Rules. Subsequently, criminal application No. 2073 of 2020 had been moved by the State contending that Aurangabad Bench of high court would not have jurisdiction to entertain the criminal writ petition, the order of rejection of emergency parole being passed at Nashik by the Central Jail Superintendent, having regard to orders passed by co-ordinate benches on 8th August, 2019 in criminal writ petition No. 1091 of 2019 and 22nd January, 2020 in criminal writ petitions No. 18 and 19 of 2020 viz; "Baldev Baliram Lonari V/s State of Maharashtra" and "Samadhan Pandit Choudhary and Umesh Ishwar Patil V/s the State of Maharashtra and Others", respectively. It had been contended, in the orders passed in the matters of "Baldev" and "Samadhan" (supra), it had been considered by two division benches that when order impugned is passed by an authority of prison in a particular district not covered by jurisdiction of Aurangabad Bench of high court, aggrieved convict would not be able to file proceedings in Aurangabad Bench. It appears that said Guddu had instructed to state that he would file a fresh application for emergency parole under Rule 19 (1) (C) of the Parole Rules, as soon as he completes three years in jail, while he had completed about two years and eight months. The division bench, having regard to aforesaid, had thought it proper in the circumstances to recall order dated 26th October, 2020 in criminal writ petition No. 1362 of 2020 to the extent of emergency parole and had observed that order allowing the criminal writ petition would be rendered infructuous. It appears that learned advocate for the prisoner/convict had submitted before the division bench that convicts aggrieved by rejection of their application either for furlough/parole/ emergency parole leave should have no territorial limits/restrictions while it is within the powers of prison authorities/their discretion/administration to locate and re-locate the convicts to any jail in Maharashtra and had in justification referred to some instances. The division bench thought those to be logical, while furlough/parole been a kind of concession. The division bench has further considered, with respect to the view emerging under orders dated 8th August, 2019 and 22nd January, 2020 in the cases of "Baldev" and "Samadhan" (supra), in the peculiar facts and circumstances of the cases under COVID-19 pandemic as under: