The Bombay High Court passed a judgement on the 25th of January in the year 2021 in which it heard a referral made by the division bench in regards to the application of emergency parole. This was seen in the case of The State of Maharashtra Vs Guddu @ Kansha Wahab Shaikh (Criminal Application No. 2073 Of 2020) and the judgement was presided over by The Honourable Chief Justice Mr. S.V. Gangapurwala and The Honourable Mr. Justice S.P. Deshmukh.
FACTS OF THE CASE:
Guddu had been refused parole leave by the Superintendent, he had not availed parole or furlough leave on two occasions and also had not completed three years in jail prior to his application for emergency parole under Rule 19 (1) (C) of the Prisons (Bombay Furlough and Parole) Rules, 1959 also with the introduction of Rule 19 under the Amendment Rules of 2020, in the wake of COVID-19 pandemic, he was found not eligible for release on emergency parole leave and hence filed a writ petition in the Aurangabad High Court.
The criminal writ petition was allowed, granting emergency parole leave to Guddu, pursuant to Rule 19 (1) (C) of the Parole Rules. The criminal application was then moved by the State contending that Aurangabad Bench of high court would not have jurisdiction to entertain the criminal writ petition and it had been considered by two division benches that when order impugned is passed by an authority of prison in a particular district not covered by jurisdiction of Aurangabad Bench of high court, aggrieved convict would not be able to file proceedings in Aurangabad Bench. Guddu had then instructed to state that he would file a fresh application for emergency parole under Rule 19 (1) (C) of the Parole Rules, as soon as he completes three years in jail. The division bench, had thought it proper in the circumstances to recall order dated 26th October, 2020 in criminal writ petition No. 1362 of 2020 to the extent of emergency parole and had observed that order allowing the criminal writ petition would be rendered infructuous. The learned advocate for the prisoner had submitted before the division bench that convicts aggrieved by rejection of their application either for furlough/parole/ emergency parole leave should have no territorial limits/restrictions while it is within the powers of prison authorities/their discretion/administration to locate and re-locate the convicts to any jail in Maharashtra and had in justification referred to some instances.
The division bench in this case observed that it had not been able to align itself with the view taken by the division bench under order in the previous case which was referred to by the learned advocate for the prisoner and, as such, referred the following question to the full bench:
“Whether, a convict/prisoner can challenge the rejection of his parole application, only before the Forum of this Court having jurisdiction over the district in which the rejection order was passed and is precluded from approaching the bench having jurisdiction over the district in which the Trial Court convicting him/her is situated?”
The court in its judgement in regards to the case said that there does not appear to be any nexus between grant or refusal of parole and place of court convicting, ordinarily a prisoner would have to approach a forum of this court having jurisdiction over the district in which order of rejection is passed. But a convict/prisoner is not precluded from approaching the bench having jurisdiction over the district in which trial court has convicted him, if the order of rejection of parole is passed in the area of jurisdiction of forum where under conviction has taken place or if a nexus between refusal to grant parole and conviction could reasonably and validly be said to exist. However, in the latter case, the court could always be open in rare and exceptional cases for the Bench before which the proceeding is presented to examine the plea at the threshold and decide whether to receive the proceedings or not.
Hence the court answered the query and allowed this matter to rest.
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JUDGEMENT REVIEWED BY TANAV ZACHARIAH.