The central legal point established is that the condition in the Notification dated 08.05.2020 should not disentitle prisoners from claiming the benefit of emergency parole leave, and discrimination based on the number of inmates in the Open Jail is unjustified.

JUDGMENT

Sandip Kumar Chandrabhan More, J. - Rule. Rule made returnable forthwith and by consent, heard finally at admission stage.

2. By way of this Criminal Writ Petition, the petitioner is seeking a direction to Respondent No. 2 to release her husband Shaikh Rashid Shaikh Abdul Gaffur i.e. Convict No. C-5345 on emergency parole leave as per Notification dated 08.05.2020, by quashing the order dated 15.12.2021, passed by Respondent No. 2, under which, the aforesaid leave has been rejected.

3. According to the petitioner, her husband i.e. convict Shaikh Rashid is convicted for the offence punishable under Section 302 read with 34 of the Indian Penal Code vide judgment and order dated 30.07.2021, passed by the Additional Sessions Judge-III, Aurangabad and he is sentenced to suffer imprisonment for life. The petitioner's husband has presently served sentence of more than ten years and five months without remission. As such, it is claimed by the petitioner that her husband is entitled for release on emergency parole leave, as mentioned above.

4. The learned Counsel for the petitioner submits that as per the judicial pronouncement of this Court (Coram: T.V. Nalawade and S.D. Kulkarni, JJ) in Criminal Writ Petition No. 571 of 2020, decided on 30.06.2020, in the case of Kavita w/o Dilip Baviskar Vs. State of Maharashtra, the issue of rejecting leave applications of the convicts, in terms of the Notification dated 08.05.2020, issued by the State Government in the backdrop of outbreak of Covid-19 pandemic situation, no more survives especially when this Court, in the aforesaid judgment and in various subsequent cases thereafter, has interpreted the condition laid down in the aforesaid Government Notification and held that the said condition is to ensure that the prisoner/convict should return to the jail on his own in time after the emergency parole period is over.

5. The learned Counsel for the petitioner also submits that rejection of emergency leave of the convict, even though there are less number of inmates in the Open Jail at present, is not at all proper, since it cannot be ignored that most of the intimates in the Open Jail have been released on emergency parole leave and, therefore, there is no reason for the Respondent-authorities to discriminate the husband of the petitioner on the ground that there are less number of intimates in the Open Jail at present i.e. 33 as against the capacity of 500 inmates in the Open Jail.

6. It is significant to note that in terms of the Notification dated 08.05.2020, issued by the State Government in the backdrop of outbreak of Covid-19 pandemic situation, the Respondent-authorities have rejected so many leave applications solely on the ground that in terms of the said Notification, the prisoners ought to have availed either furlough or parole leave in the past and that such prisoners ought have returned to the Jail in time on such last occasions. Further, the Respondent-authorities have also rejected the leave applications of the convicts/prisoners on the ground that there are less number of inmates present in the Open Jail as compared to the total capacity of 500 inmates in the Open Jail.

7. The learned A. P. P., appearing on behalf of the Respondent-authorities, though has opposed the petition, but submitted that this Court may pass appropriate order in view of the aforesaid judgment of this Court in the case of Kavita w/o Dilip Baviskar Vs. State of Maharashtra (supra) and the subsequent judgments in various other cases.

8. We have gone through the judgment of this Court in the case of Kavita w/o Dilip Baviskar Vs. State of Maharashtra (supra), In paragraphs no. 4 and 5 of the said judgment, this Court has made the following observations:

''4 In the notification dated 8th May 2020, the State Government has given direction to the Jail Authority to see that the prisoners, who are behind the bars, are released on emergency parole in view of the situation created by pandemic of Covid-19 virus. In the