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The Aurangabad Bench of Bombay High court recently held that in the instance of emergency parole, the prisoner does not have to file any application for the extension of an emergency parole granted to him/her as per the rules.

The three judge bench comprising Sunil P. Deshmukh J., Mangesh S. Patil J., R. G. Avachat J., has held that nowhere in the provision it is explicitly mentioned that any action for extending the emergency parole requires an application.

Court noted that the provision of the “Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment) Rules, 2020 does not warrant any reimposition of conditions for extension of the parole.

Factual matrix:

On 8th of May, the government of Maharashtra promulgated “Maharashtra Prisons (Mumbai Furlough and Parole) (Amendment) Rules, 2020, adding clause (C) after clauses (A) and (B) to sub rule (1) of Rule 19 of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959. The clause (C) reads that,

“(C) On declaration of epidemic under the Epidemic Diseases Act, 1897, by State Government:

1. For convicted Prisoners whose maximum punishment is 7 years or less, on their application shall be favorably considered for release on emergency parole by the Superintendent of Prison for a period of 45 days or till such time that the State Government withdraws the Notification issued under the Epidemics Diseases Act, 1897, whichever is earlier. The initial period of 45 days shall stand extended periodically in blocks of 30 days each, till such time that the said Notification is in force (in the event the said Notification is not issued within the first 45 days). The convicted prisoners shall report to the concerned police station within whose jurisdiction they are residing, once in every 30 days.
2. For convicted prisoners whose maximum sentence is above 7 years shall on their application be appropriately considered for release on emergency parole by Superintendent of Prison, if the convict has returned to prison on time on last 2 releases (whether on parole or furlough), for the period of 45 days or till such time that the State Government withdraws the Notification issued under the Epidemics Diseases Act, 1897, whichever is earlier. The initial period of 45 days shall stand extended periodically in blocks of 30 days each, till such time that the said Notification is in force (in the event the said Notification is not issued within the first 45 days). The convicted prisoners shall report to the concerned police station within whose jurisdiction they are residing, once in every 30 days”

The court has referred to the Judgement by a division bench in the case of Dinesh s/o. Arjunsing Thakur Versus The State of Maharashtra Criminal Writ Petition No. 790 of 2020, where it was held that there is an automatic extension of parole beyond forty five days and the extension does not require a separate application or permission or an order. However, in an another division judgement of Sonu S/o. Chandrakant Shrinath Versus The State of Maharashtra and Another Criminal Writ Petition No. 790 of 2020 it was held that an application for extension of emergency parole before expiry of forty five days is mandatory and the prisoner could not avoid reporting back to prison on the pretext of pendency of application for extension beyond forty five days.

The court has also referred to the case of Jafar Shaikh Versus State of Maharashtra Criminal Writ Petition No. ASDB-LD-VC No. 235 of 2020, where it was held that the object behind the amendment is to ensure safety of the inmates by decongesting the prisons and directed the Superintendent of Yerwada Central Prison to pass appropriate orders regarding extension of emergency parole in accordance with Rules of 2020. Along with that the court has also referred to the case of Dhananjay S/o. Rajaram Dighe Versus The State of Maharashtra Criminal Writ Petition stamp No. 3027 of 2020, where the court observed that let the prisoner’s release on emergency parole imposing conditions ensuring that he will surrender upon expiry of emergency parole period.

Issues Raised:

Issues raised before the court was that whether there was any inconsistency between the two sentences under the clause (C) of Rule 19.

Issue 1 : Whether the first sentence in Rule 19 (1) ( C) ( i) "For convicted Prisoners whose maximum punishment is 7 years or less, on their application shall be favorably considered for release on emergency parole by the Superintendent of Prison for a period of 45 days or till such time that the State Government withdraws the Notification issued under the Epidemics Diseases Act, 1897, WHICHEVER IS EARLIER" is inconsistent to the subsequent sentence "The initial period of 45 days shall stand extended periodically in blocks of 30 days each, till such time that the said Notification is in force (in the event the said Notification is not issued within the first 45 days), thereby leading to an anomalous situation?

Issue 2 : Considering the effect of the second proviso and the undertaking mandated under Rule 24A read with Rule 27 (2) and the first sentence under Rule 19 (1) (C) (i) of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959, whether a prisoner would have to make an application for seeking extension of the emergency parole leave prior to the completion of his period of such leave granted under Rule 19 (1) (C) (i) ?

Court's Observations:

The court in this case observed that judgements in Dinesh Kumar case (supra), Sonu Shrinath case (supra), Jafar Sheikh case (supra) and Dhananjay Rajaram case (supra) regarding whether there should be an application for extension of emergency parole, were not on the same page.

The state in the present situation of pandemic was forced to recognise the need of emergency parole to the prisoners. The court observed that in the field of interpretation, the primary rule is the exact construction of the intention actually expressed in the language by the legislation.

Every word used in the legislation is to be given meaning. According to the court, the golden rule is to adhere to the ordinary meaning of the words used and to the grammatical construction. Another rule is to avoid interpretation which can reduce legislation to futility. Golden and harmonious construction rather be accepted based on the language used. The court highlighted that the provision would cover all folds of present, future and unforeseen pandemic/epidemic diseases. It does not appear to be a temporary visualisation of the measure. Rather than that it was introduces with a view that it would take care of the various epidemic eventualities. The language in the provision does not purport to confine the measure only to de-congestion.

The first sentence of the clause (C) (i) establishes that the authority to favourably consider an application of prisoners suffering sentence of seven or less on emergency parole for a period of forty-five days and emergency parole would be put to an end with the withdrawal notification under the ED Act. The second sentence intends to extend the notification beyond forty five days. It also states that “The initial period of 45 days shall stand extended periodically in blocks of 30 days each till such time notification is in force”. It also requires that prisoner released on parole has to attend the police station in every thirty days. Thus, the two sentences in clause (C) covers withdrawal of notification in less than forty-five days and extension of the notification beyond that period.

The court also recognised that there was no incompatibility between the two sentences. The first sentence does not appear to be inconsistent with subsequent sentences in the context of their operation.

Case Title: Nagnath s/o Sakharam Mane Versus The State of Maharashtra and Another

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