The discretionary nature of Covid-19 parole and the need for assessment of the pandemic situation in prisons to consider the release of prisoners for decongestion purposes.

JUDGMENT

Avinash G. Gharote, J. - The present petition, questions the order dated 19/10/2020, passed by the respondent no.2, Superintendent of Central Jail, Amravati, rejecting the application filed by the petitioner dated 6/10/2020, for release of parole on account of Covid-19, in view of the notification dated 08/05/2020, which has resulted in amendment of Rule 19 (1) of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959, (for short "the Prisons Rules" hereinafter) by insertion of Clause (C) thereof.

2. The impugned order states that though the petitioner, who is undergoing a sentence of life imprisonment for conviction under Section 302 of I.P.C., had returned on the due date on the last occasion, when he was released on parole, however, since Rule 19 (1) (C) (ii) of the Prisons Rules requires, the release and timely return on the last two occasions to be considered, the application of the petitioner has been rejected. In so far as the ground on which the application of the petitioner has been rejected, the same has been considered by learned Division Bench of this Court in Milind Ashok Patil and Ors. Vs. State of Maharashtra and Ors.,MANU/MH/0797/2020, decided on 16/07/2020, wherein it has been held that Rule 19 (1) (C) (ii) of the Prisons Rules, cannot be construed in a pedantic manner, rather, the same has to be construed in a practical way and a condition, which is impossible to be performed, cannot be made applicable, so as to deny the benefit to the prisoner. There cannot be any quarrel with the proposition as laid down, in light of which, the impugned order, which requires the release and return in due time of the petitioner, cannot be sustained.

3. However, what has to be looked into, is the purpose and object behind enacting Rule 19 (1) (C) of the Prisons Rules, which was so enacted, looking to the pandemic situation created on account of the Covid-19 situation, which required decongestion of Prisons, in order to contain and stop the spread of the virus. The position, as it was on 08/05/2020, when the notification was issued and Rule 19 (1) of the Prisons Rules was amended, has undergone a sea change since then and the position which was extant then, is no longer available now. It is in the changed circumstances that now the implementation of the provision relating to release of convicts, on account of an application being made for release on Covid-19 parole has to be considered.

4. It is trite, that Rule 19 (1) (C) of the Prisons Rules is not mandatory, but is an enabling provision, as it is couched in a language which confers discretion upon the Superintendent of Prisons, to consider the application, which consideration, could only be upon various factors prevailing, which in the opinion of the Superintendent of Prisons, may necessitate the release of prisoners, enabling the decongestion of the Prisons, in order to arrest the spread of the Covid-19 virus. Neither it can be said, that a claim to be released on Covid-19 parole is a right vested in the prisoner.

5. It is material to note that the Hon'ble Apex Court, in National Forum on Prison Reforms Vs. Government of NCT of Delhi and Ors., SLP (C) No.13021/2020, in which a challenge was laid to the order dated 20/10/2020, passed by the Delhi High Court, directing that there would be no further extension of interim bails under the order of the Court, which were on account of the Covid situation, whereby the prisoners released on interim bail were directed to surrender before the Jail Authorities, noting the improving situation, it has been directed that 2,318 prisoners, who were granted interim bail by the Trial Court and 356 prisoners, who were granted interim bail by the High Court, to surrender within 15 days from the date of the order.

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 :-

"Though, we have n