Allowed

Roshal Ali Din Mohmed Mukhiya Shaikh v. the State of Maharashtra

Bombay HC28 Oct 2021WP/2115/2021

Case brief

AI extract

What is this about?

The Bombay High Court allowed petitions seeking emergency (Covid) parole. The court set aside impugned orders rejecting applications based on a notification condition requiring prior furlough or parole returns. The authorities were directed to decide within two weeks ignoring the prior release condition.

What did the court decide?

Impugned orders set aside; Respondent authorities directed to decide on emergency parole petitions within two weeks ignoring prior release condition.

Roshal Ali Din Mohmed Mukhiya Shaikh Vs… — Constitutional and Fundamental Rights | Bombay HC (2021)

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1 / 3 47-48-49-WP-2115-2116-2117.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.2115 OF 2021

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Roshal Ali Din Mohmed Mukhiya Shaikh .... Petitioner versus State of Maharashtra .... Respondent

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WITH

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CRIMINAL WRIT PETITION NO.2116 OF 2021

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Manoj Ramji Chavare .... Petitioner versus State of Maharashtra .... Respondent

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WITH

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CRIMINAL WRIT PETITION NO.2117 OF 2021

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Rizwan Sarfaraz Shaikh .... Petitioner versus State of Maharashtra .... Respondent …....

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Mr.Ajinkya Udane, Advocate appointed through Legal Aid Panel, for Petitioners.

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Mr.K.V. Saste, APP for State/Respondent in WP No.2115/2021.

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Mr.J.P. Yagnik, APP for State/Respondent in WP No.2116/2021 and WP No.2117/2021.

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Digitally signed by MANUSHREE MANUSHREE V V NESARIKAR NESARIKAR Date: 2021.10.30 16:22:19 +0530

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CORAM : NITIN JAMDAR & SARANG V. KOTWAL, J. DATE : 28 OCTOBER 2021

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Nesarikar

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47-48-49-WP-2115-2116-2117.odt

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2 / 3

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P.C. :

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. These three Petitions have been filed through jail seeking emergency (Covid) parole. By the orders impugned in these Petitions the prayers of the Petitioners have been rejected. The ground given for rejection which is common in all Petitions hence they are taken up for disposal. The impugned orders refer to Notification under the Prisoners Act amending the Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment), Rules 2020, wherein in sub-rule (1) of rule 19 of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959, is amended to include clause (ii) in respect of grant of emergency parole. The added clause (ii) states that the convicted persons whose maximum sentence is about 7 years, shall be considered for release of emergency parole, if the convict has returned to prison on time for last two releases whether on parole or furlough. Pursuant to this stipulation in the impugned order, the superintendent of the concerned jail has rejected the application of the Petitioners on that ground that in the case of the Petitioners the eventuality of return to the prison on last two occasion has not arisen because they have been never granted furlough or parole.

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The Division Bench of this Court (Aurangabad Bench) in the case of Kavita Dilip Baviskar Vs. The State of Maharashtra¹ rendered on 30 June 2020 has observed that such a condition cannot be imposed in law and had set aside the orders and had directed the authorities to give benefit of notification dated 8 May 2020 and the

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1 Criminal Writ Petition No.571 of 2020

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amendment to the Petitioners. This decision is subsequently followed in the case of Gangadhar Ananda Kokate Vs. The State of Maharashtra² dated 4 August 2020 of Division Bench of High Court at Aurangabad.

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In these three cases the Petitioners have been directed to undergo sentence above seven years. Therefore first criteria is satisfied. As regard the condition of having not released on furlough and parole earlier, it has already been held to be bad in law by this Court. No contrary decision is shown. In the impugned order no other condition has been imposed. There is no reason therefore why benefit of the law already laid down by this Court should not be extended to the Petitioners.

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Accordingly we allow these three Petitions. The impugned orders are set aside and the Respondent authorities are directed to take a decision in respect of Petitioners’ Petitions for emergency (Covid) parole, in light of the rules as amended referred to above, without reference to the condition of having not been released on parole or furlough before. The decision be taken within period of two weeks from today. Writ Petitions are disposed of accordingly.

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(SARANG V. KOTWAL, J.)

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(NITIN JAMDAR, J.)

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2 Criminal Writ Petition No.761 of 2020

Roshal Ali Din Mohmed Mukhiya Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Roshal Ali Din Mohmed Mukhiya Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

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