Dismissed

Shrihari Rajlingam Guntuka v. the State of Maharashtra and Anr.

Bombay HC1 Oct 2021WP/3208/2021

Case brief

AI extract

What is this about?

The Bombay High Court dismissed a writ petition seeking emergency parole. The court held that Rule 19(1)(c)(ii) of the Maharashtra Prisons Rules requires timely return for at least two prior releases. Given the petitioner’s persistent and prolonged overstays, including an eight-year absence, the prison authority was justified in rejecting the parole.

What did the court decide?

The petition was dismissed; the impugned order rejecting parole was upheld.

Shrihari Rajlingam Guntuka Vs the State of… — Pension and Retirement Benefits | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO.3208 OF 2021

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VISHAL SUBHASH PAREKAR

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Digitally signed by VISHAL SUBHASH PAREKAR Date: 2021.10.01 13:47:39 +0530

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Shrihari Rajlingam Guntuka

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vs.

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The State of Maharashtra and Others

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Ms. Sharda Chate, for the Petitioner.

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Mrs. S.D. Shinde, APP for the Respondent-State.

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…Petitioner

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...Respondents

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CORAM : S.S. SHINDE & N.J. JAMADAR, JJ.

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JUDGMENT RESERVED ON : 29^th SEPTEMBER, 2021 JUDGMENT PRONOUNCED ON : 1^st OCTOBER, 2021

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JUDGMENT : (Per N.J.Jamadar, J.)

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Rule. Rule made returnable forthwith and, with the consent of the counsels for the parties, heard fnalll.

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The challenge in this petition is to an order dated 1^st Mal, 2021 passed bl the Superintendent, Nashik Road Central Prison, Nashikrespondent No. 2, wherebl the application of the petitioner for releasing him on parole in accordance with the Rule 19(1)(c)(ii) of the Maharashtra Prisons (Maharashtra Furlough and Parole) Rules, 1959 (Rules, 1959) came to be rejected.

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The background facts necessarl for the determination of this

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Vishal Parekar, P.A.

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petition can be stated in brief as under:

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a] In Sessions Case No. 159 of 1993, the petitioner came to be convicted bl the Sessions Court, Mumbai for the offence punishable under section 302 read with 34 of Indian Penal Code, 1860 and sentenced to suffer imprisonment for life and pal fne of Rs. 5,000/with default stipulation, bl judgment and order dated 20^th Jull, 2004.

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b] In the wake of Covid 19 pandemic, the petitioner preferred an application for release on emergencl parole. Bl the impugned order, the Superintendent, Nashik Road Central Prison, wherein the petitioner has been lodged, was persuaded to reject the application holding, inter alia, that adequate safetl measures have been taken in the prison and all the prisoners above 45 lears of age have been vaccinated, and the petitioner did not fulfl the criteria for release as the petitioner had not returned to prison, on time, on four occasions, in the past. In the lear 2016, when the petitioner was released on parole, the petitioner had overstaled bl 2093 dals and was required to be apprehended and brought back to the prison to undergo the remainder of the sentence. Hence, the petitioner was not entitled to be released on emergencl parole.

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c] Being aggrieved, the petitioner has invoked the writ jurisdiction of this Court.

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Vishal Parekar, P.A.

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We have heard Ms. Sharda Chate, learned counsel for the petitioner and Mrs. Shinde, learned APP at length. With the assistance of the learned counsels for the parties, we have perused the material on record including the impugned order and the report submitted bl Superintendent, Prison to which a chart containing the details of incarceration of the petitioner is annexed.

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Ms. Chate, advanced a two-pronged submission. First, the fact the petitioner had overstaled, when he was released on furlough or parole in the past, is not germane for the determination of the praler for emergencl parole. It was submitted that the petitioner had alreadl been penalized bl striking his name off the remission register and permanentll debarring him from claiming beneft of remission. Second, while considering the entitlement for release on parole, what matters is the conduct of the prisoner in the prison. Since, the petitioner has been issued a certifcate for commendable conduct inside the prison, the authoritl could not have rejected the application for emergencl parole.

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In opposition to this, Mrs. Shidne, learned APP invited our attention to the provisions of Rule 19(1)(c), introduced vide Notifcation dated 8^th Mal, 2020, especialll the condition that the

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Vishal Parekar, P.A.

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convict should have returned to prison on time on the previous two releases, either on parole or furlough. Laling emphasis on the said condition, Mrs. Shinde, would urge that respondent No. 2 was within his rights in declining to release the petitioner on emergencl parole as the petitioner had overstaled for lears together.

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The chart of incarceration of the petitioner reveals that the petitioner had not returned to prison on time on previous four occasions:

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No.	Year	Period of overstal	Remarks
1	2006	238 dals	Surrendered suo moto
2	2008	409 dals	Arrested bl police
3	2009	46 dals	Arrested bl police
4	2010	2093 dals	Arrested bl police

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The aforesaid chart would indicate that the petitioner had never returned to prison on time. On three occasions, the petitioner was required to be apprehend and brought back to prison. In the circumstances, the aforesaid conduct of overstal, especialll the last one wherein the petitioner staled awal from the prison for almost six lears, cannot be said to be irrelevant and inconsequential.

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We fnd substance in the submission of Mrs. Shinde, learned APP, that under the Rules one of the condition which a prisoner is

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Vishal Parekar, P.A.

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required to fulfll to get the beneft of emergencl parole is return to the prison on time, on two previous occasions. Evidentll, this prescription is with a view to ensure that the prisoner would return to prison after the period of emergencl parole is over, and the assurance about such future conduct of the prisoner is sought to be drawn from the past conduct of the prisoner.

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We are, therefore, not persuaded to accede to the submission on behalf of the petitioner that the fact that the prisoner had not returned to prison, on time, in the past, has no bearing upon the claim for release on emergencl parole. Undoubtedll, the petitioner’s name has been struck off from the remission register. Yet, we are afraid to agree with the submission on behalf of the petitioner, in the peculiar facts of the case, that the factum of overstal cannot be construed against the petitioner as his name has been struck off the remission register.

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Ms. Chate invited the attention of the Court to a decision in the case of Sherkhan Mirbas Khan Pathan vs. The State of Maharashtra, Criminal Writ Petition No. 513 of 2021 dated 3^rd Mal, 2021 wherein this Court had directed the release of the convict on emergencl parole despite the convict having overstaled for a period

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Vishal Parekar, P.A.

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of 677 dals on the ground that the petitioner therein was alreadl saddled with penaltl of denial of remission. Reliance was also placed on the judgment of this Court in the case of Pratik Ambadas Borase vs. The State of Maharashtra, Criminal Writ Petition No. 3029 of 2020 dated 17^th December, 2020. In the said case, the petitioner therein had also reported late to prison.

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In our view, the judgments in aforesaid cases, do not advance the cause of the petitioner. The judgments are clearll distinguishable on facts. In the case at hand, not onll there is persistent default in returning back to prison on time but the period of overstal is also huge. The petitioner had remained out of prison for almost eight lears. In the circumstances, in our view, the respondent No. 2 was justifed in declining to release the petitioner on emergencl parole on account of the persistent and prolonged overstal. No fault can be found with the impugned order.

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For the foregoing reasons, no interference is warranted in the impugned order. The petition, therefore, deserves to be dismissed. Hence, the following order.

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Vishal Parekar, P.A.

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ORDER

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a] The petition stands dismissed.

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b] Rule stands discharged.