Libertatem Magazine

Bombay HC: Condition of Release to be Complied With When Convict Has Not Availed Furlough

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The writ petition filed by a convict succeeds as the Court finds it expedient to release the petitioner when he has not taken advantage of a furlough and finds insisting on compliance with the terms of his or her release to be burdensome.

Brief facts

The present Criminal Writ Petition has been moved by a convict suffering life imprisonment for offenses punishable under Sections 302 and 309 of the Indian Penal Code. Although his application for emergency parole application had been turned down by impugned order dated 15th March 2021 for the reason that the Petitioner has in the past never gone on either furlough or parole as per the official record, thereby not fulfilling the required criterion that convict should have returned on time twice on last two releases against which the present Petition is filed which succeed in the Court of Law.

Arguments from both sides

The learned Advocate for the Petitioner, Mr. Aniket Vagal, submitted before the Hon’ble Court that the Petitioner had not availed of furlough or parole even once in the last more than 9 years. As such, there is no question of his surrendering on time twice before. He submits that Rule 19 (1) (C) is with regard to the release of Prisoners on emergency parole, categorizing them with reference to the period of the sentence – seven years or less and above seven years.

For the seven years and above category, rule 19 (1) (C) (ii) apparently refers to release and return on time, twice. He submits that reference to return on time twice earlier, in rule 19 (1) (C) (ii) has been with a view to having an assurance of conduct/tendency of the Prisoner to abide by conditions and rules. He submits that for the absence of release and returns on time twice before making an application for emergency parole, the release of the Petitioner should not be hindered, looking at the intendment underlying the provision.

He further submitted that, the Court has often come across applications involving similar circumstances as in the Nikita Gadgil Case. He refers to decisions of this High Court, dated 30th June 2020 in Criminal Writ Petition No. 571 of 2020 in the case of “Kavita Dilip Baviskar V/s The State of Maharashtra” and, dated 5th January 2021 in Criminal Writ Petition No. 1626 of 2020 in the Case of “Navshad @ Naishad Makrani Batla V/s State of Maharashtra”, where under impugned orders by authorities rejecting the request for release on emergency parole, like the one impugned here, were set aside and Respondents were directed to give the benefit of amended rule 19 (1) (C) (ii) to the Petitioners on usual terms and conditions.

Court’s Observations

Regard was paid to the submissions advanced by the learned Advocates for both the Petitioners as well as the Respondent. The Court has considered the necessitated amendment to Rule 19 (1) incorporating clause (C) due to the COVID-19 pandemic. The Division Bench of this Court also referred to its order dated 30th June 2020 in “Kavita V/s The State”.

Court’s Decision

In the light of the submissions put forth by the learned counsel for the applicant, the Court had considered it expedient to release Petitioners finding that the order impugned in the said Petition would not be sustainable. The Writ Petition succeeds.

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