SAHEBRAO KALURAM BHINTADE Vs. STATE OF MAHARASHTRA
LAWS(BOM)-2021-9-36
HIGH COURT OF BOMBAY
Decided on September 16,2021

Sahebrao Kaluram Bhintade Appellant
VERSUS
STATE OF MAHARASHTRA Respondents

JUDGEMENT

N.J.JAMADAR, J. - (1.)Rule. Rule made returnable forthwith and with the consent of the learned counsels for the parties, heard finally.
(2.)This petition under Article 226 of the Constitution of India assails the order dated 7th May 2021, whereby the prayer of the petitioner to release him on emergency parole, in accordance with Rule 19(1)(C)(ii) of Prisons (Bombay Furlough and Parole) Rules, 1959 ('Rules, 1959'), came to be rejected. The petitioner has also prayed that the exception carved out by the proviso to the said rule which debars the prisoners convicted for serious economic offences or offences under Special Acts like MCOC, PMLA, MPID, NDPS, UAPA etc. from availing the benefit of the said provision be read down to hold that at least the convicts (from the excluded categories), who are 65 years of age and above, are entitled to the benefit of the said rule.
(3.)The petition arises in the backdrop of the following facts :
(a) The petitioner is a 73 years old convict. He claims to be suffering from several co-morbidities. By the judgment and order dated 31st August 2012 in MCOC Case No. 7/2008, the petitioner came to be convicted inter alia for the offence punishable under section 3(2) of The Maharashtra Control of Organised Crime Act, 1999 ('MCOC') and sentenced to suffer imprisonment for life. The petitioner has been incarcerated since 29th April 2008.

(b) By the order dated 29 th May 2020, the petitioner was released on furlough for a period of 28 days. The petitioner sought extension of the period of furlough leave. However, the authorities did not take any decision thereon. The petitioner was thus constrained to prefer writ petition being Criminal Writ Petition ASDB-LD-VC No.139 of 2020. By order dated 10th July 2020, the said writ petition came to be disposed with a direction to the authorities to decide the application preferred by the petitioner within a period of 15 days thereof, keeping in view the age of the petitioner and the several ailments, which the petitioner claimed to be suffering from, and the period of the sentence undergone by him.

(c) By an order dated 4th August 2020, the competent authority rejected the prayer for extension of furlough leave on the premise that furlough cannot be granted for more than 21/28 days in one calender year.

(d) The petitioner surrendered and applied for emergency parole under Rule 19(1)(C)(ii) of the Rules, 1959. By the impugned order dated 7th May 2021, the petitioner's application came to be rejected, by invoking the proviso to Rule 19(1)(C), which excludes the prisoners, convicted for serious economic offences and offences under special acts like MCOC from the applicability of the rule which empowers the authorities to release the prisoners on emergency parole on account of Covid-19 Pandemic.

(e) The petitioner has again invoked writ jurisdiction of this Court on the ground that the authorities have failed to take into account the new guidelines of the High Power Committee, especially Clause 16(v) of the Minutes of the meeting dated 7th/11th May 2021. Under the said guidelines, according to the petitioner, the authorities are enjoined to consider the cases of the prisoners above 65 years of age and having co-morbidities more sympathetically notwithstanding the rejection of their earlier applications. The authorities also lost sight of the fact that the State of Maharashtra has taken a stand before the Supreme Court in Suo Motu Writ Petition (C) No.1/2020, that the State has taken into consideration the age of the convicts and the co-morbidities suffered, if any, at the time of recommending the release of the prisoners from jails. Even otherwise, the convicts above 65 years of age form a class by themselves. Therefore, in order to achieve the object behind introducing Rule 19(1)(C) in the wake of Covid-19 Pandemic, the proviso to the said rule is required to be read down and the convicts who fall within the ambit of the proviso, but are 65 years of age and above, are required to be extended the benefit of the said rule.



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