Partly allowed

Vinod S/O Lakhesingh Dhurvey v. State of Mah. Thr. the Dig of Prison Central Prison Eastern Region Nagpur and 2

Bombay HC11 Apr 2022WP/49/2022

Case brief

AI extract

What is this about?

The Nagpur Bench quashed the prison superintendent's order rejecting an emergency parole application. The Court held that the convicts were eligible for parole under Rule 19 of the Maharashtra Prisons Rules, 1959 and directed authorities to consider the application.

What did the court decide?

Impugned order dated 24.12.2021 quashed; Respondent No.3 directed to decide parole application as per Ayyaz Khan judgment.

Vinod S/O Lakhesingh Dhurvey Vs State of Mah… — Pension and Retirement Benefits | Bombay HC (2022)

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crwp49.22.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR

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CRIMINAL WRIT PETITION NO. 49 OF 2022

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Vinod s/o Lakhesingh Dhurvey
Aged about 32 years,
R/o Mundarai (Buma), Seoni,
Dist. Seoni, (M.P.)
Presently Convict No.C/7221,
Central Prison, Nagpur

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… PETITIONER

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 ---VERSUS---

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1.State of Maharashtra, Through the Deputy Inspector, General of Prison, Central Prison, Eastern Region, Nagpur

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2.Divisional Commissioner, Division Nagpur, Nagpur.

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3.The Superintendent of Prison, Central Prison, Nagpur

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...RESPONDENTS

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Shri V.N. Mate, Advocate for petitioner.

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Ms N.R. Tripathi, Additional Public Prosecutor for respondents.

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CORAM :V. M. DESHPANDE AND

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AMIT BORKAR, JJ.

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DATE : 11th APRIL, 2022.

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JUDGMENT : (PER -AMIT BORKAR, J.)

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1. Heard.

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2.Rule. Rule made returnable forthwith.

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crwp49.22.odt

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3.By this writ petition under Articles 226 and 227 of the
Constitution of India the petitioner is challenging the order dated
24.12.2021 refusing to release the petitioner on emergency
parole.

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4.The petitioner is convict under Sections 396 and 397 of
the Indian Penal Code (IPC) and sentenced to undergo life
imprisonment.

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5.The petitioner on 09.10.2021 applied for his release on
emergency parole, which has been rejected by respondent no.3 by
its order dated 24.12.2021.

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6.The petitioner has therefore challenged the said order
by way of present writ petition. This Court issued notice to the
respondents, in pursuance of which, the respondent no.3 has filed
reply stating that the petitioner having been convicted for the
offence punishable under Sections 396 and 397 of IPC is not
eligible for release on emergency parole.

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7.Insofar as the eligibility of the petitioner is concerned, as
we have already held that the language of Rule 19 of the
Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959
entitled all prisoners subject to disqualification mentioned in the
said Rules. The coordinate Bench of this Court in the case of
Baburao Marotrao Dakhore Vs. State of Maharashtra reported in

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2017 (4) BCR (Cri.) 701 had occasion to interpret the Rule 19 as

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was in existence in the said year. The coordinate Bench of this
Court held that insofar as release of prisoners on emergency
parole is concerned, the eligibility prescribed under Rule 4 of the
Rules of 1959 are not attracted.

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8.We are of the view that insofar as the refusal of
respondent no.3 to release the petitioner on the ground of
petitioner having been convicted the under Section 394 is
concerned, the petitioner is eligible for being released the
petitioner under Rule 19 of the Rules of 1959.

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9.Ms N.R. Tripathi, learned Additional Public Prosecutor
invited our attention to the judgment of this Court in Criminal
Writ Petition No.146 of 2021, wherein the Division Bench of this
Court in paragraphs 6 and 7 has observed as under:

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“6. It is also necessary to note that in Suo Motu Writ Petition (Civil) No.3/2020, while considering the issue about extension of the period of limitation, the Hon'ble Apex Court has observed as under :-

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“Though, we have not seen the end of the
pandemic, there is considerable improvement. The
lockdown has been lifted and the country is
returning to normalcy. Almost all the Courts and
Tribunals are functioning either physically or by
virtual mode. We are of the opinion that the order
dated 15.03.2020 has served its purpose and in view

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crwp49.22.odt

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of the changing scenario relating to the pandemic,
the extension of limitation should come to an end.”
In view of the above, it would therefore be necessary,
for the Superintendent of Jail to, from time to time,
assess the Covid-19 situation in the Prisons; ascertain
the number of Covid-19 patients in the Prison;
determine whether they could be kept in isolation;
whether social distancing norms can be safely followed
considering the number of Covid-19 patients; what is
the threat perception to the Non-Covid patients;
whether there is requirement of decongestion of the
Prison; in case there is requirement of decongestion,
the number of prisoners which would be required to be
released, to ensure social distancing norms and
avoiding spread of the virus; the category of prisoners
who can be released, depending upon the Covid-19
situation in the locality, to which such released
prisoners are expected to go.

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7. It is only when, the Superintendent of Prisons, is of
the considered opinion, depending upon the factors
enumerated above and such other factors, as he thinks
necessary to be considered, that there is need for
decongestion of the Prisons to avoid the spread of the
Covid-19 virus, that it would be permissible for a
convicted prisoner to move an application, for
considering his release on account of the perceived
threat of spread of Covid-19 virus. We are constrained
to make the above observations, for the reason, that an
impression has been created that a release on Covid-19
parole, is a matter of right, which it is not.”

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crwp49.22.odt

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10. In the light of observations made by the coordinate

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Bench of this Court, which are binding on us, we pass the similar
order, which is passed in Criminal Writ Petition No.146 of 2021.

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11. We therefore pass the following order:

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(i) The impugned order dated 24.12.2021 is quashed and set aside.

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(ii) The respondent no.3 shall decide the emergency parole
application of the petitioner in the light of observations made
by this Court in the case of Ayyaz Khan Zabaz Khan Vs.
Divisional Commissioner, Division Amravati, Amravati and
another (Criminal Writ Petition No.146 of 2021).

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Rule in above terms. Pending application(s), if any, stand(s)
disposed of.

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JUDGEJUDGE

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Wagh

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Signed By:SURESH RAOSAHEB WAGH Personal Assistant to the Hon'ble Judge Signing Date:25.04.2022 14:36

Vinod S/O Lakhesingh Dhurvey v. State of Mah. Thr. the Dig of Prison Central Prison Eastern Region Nagpur and 2

Case brief

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Vinod S/O Lakhesingh Dhurvey v. State of Mah. Thr. the Dig of Prison Central Prison Eastern Region Nagpur and 2

Case brief

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