Criminal Writ Petition No. 537/2021-BOM HC- Nagpur Prison Superintendent gets 7 days in jail for selectively declining emergency parole requests, Bombay HC says 35 prisoners were denied their residual fundamental right under Article 21 Justices V.M. Deshpande & Amit Borkar [16-03-2022]

Read Order: Hanuman Anandrao Pendam v. State of Maharashtra and ors 

Tulip Kanth

Nagpur, April 5, 2022: The Nagpur Bench of the Bombay High Court has directed the Superintendent of Central Prison in Nagpur to undergo simple imprisonment for seven days and pay a fine of Rs 5,000 for denying parole to 35 eligible prisoners and releasing six ineligible prisoners on emergency parole. The Superintendent has also been held guilty of contempt for committing wilful disobedience of the binding precedent of this Court in Milind Ashok Patil and Ors vs State of Maharashtra, Criminal Writ Petition-ASDB- LD-VC No.65/2020.

The Bench of Justice V.M. Deshpande and Justice Amit Borkar said, “…as many as 35 prisoners who were eligible for being released on emergency parole were denied that right. Strictly speaking, the binding precedent in the case of Milind Ashok Patil and Ors vs State of Maharashtra has been disobeyed 35 times by the Contemnor in spite of clear knowledge. Moreover, it is also an undisputed fact that six prisoners were released on emergency parole even though they were not eligible as per the judgment of this Court in the case of Milind Ashok Patil. Therefore, we are of the considered view that at least in 41 cases, the Contemnor has intentionally disobeyed the binding precedent of this Court.”

The HIgh Court was considering a suo motu contempt initiated in exercise of the power under Article 215 of the Constitution of India against a Contemnor Shri Anupkumar M. Kumre, Superintendent of Central Prison, Nagpur, mainly on the grounds that the Contemnor selectively chose to apply the binding precedent of this Court as regards the release of prisoners in Central Prison, Nagpur on emergency parole in wilful disobedience of the judgment of this Court in Milind Ashok Patil’s Case(Supra). 

It was pointed out that the contemnor refused to release 35 prisoners on emergency parole though eligible and granted emergency parole to 6 prisoners though ineligible. Furthermore, in addition to the aforesaid grounds, notice was issued for making misleading statements in the affidavit filed before this Court, though cautioned twice earlier by two Co-ordinate Benches of this Court.

The factual background of this case was that on May 8,2020, Rule 19(1)(c) in the Maharashtra Prisons (Bombay Furlough and Parole) (Amendment) Rules, 2020 was introduced providing for the grant of emergency parole in view of the emergent Covid pandemic. One of the prisoners, namely Hanuman Anandrao Pendam, filed this Writ Petition seeking directions against the Contemnor for his release on emergency parole. In pursuance of the notice, the Contemnor filed a reply stating that the Petitioner did not surrender on his own and was required to be arrested. 

When this Court was about to dismiss the present Petition, the Advocate for Petitioner submitted that the Contemnor had released similar prisoners on parole though they were ineligible. Later,the Court called for entire data in respect of the cases where the contemnor had released prisoners and rejected emergency parole under the Rules. The Contemnor stated that 90 prisoners were denied emergency parole as they were found ineligible as per the Rules. 

The Report of the Deputy Commissioner of Police (Detection), Crime Branch, Nagpur revealed that the Superintendent had rejected emergency parole application of 35 prisoners despite being eligible and six prisoners were granted emergency parole leave though they were not eligible.

Since this Court was prima-facie satisfied that the Contemnor did not follow the judgment of this Court in Milind Ashok Patil’s Case(Supra) in its letter and spirit, this Court issued notice for initiation of contempt proceedings against the Contemnor. The Contemnor pressed the defence of lack of knowledge of the aforementioned judgment.

The Bench was of the opinion that the authorities dealing with the emergency parole were required to have been alive to the emergent situation of a pandemic as the class of prisoners held to be entitled to the benefit of emergency parole could be released, resulting in decongestion of the prisons. The introduction of emergency parole was to meet the unprecedented situation with unprecedented measures. 

It was in these circumstances that the Division Bench of this Court in Milind Ashok Patil’s Case (Supra) laid down guidelines for granting such emergency parole.  It was also observed therein that  the object while granting the emergency parole was to see that overcrowding in prison was reduced. However, at the same time, it was to ensure that the habitual offender or prisoners who are likely to abscond are deprived of emergency parole and therefore, the aforesaid amended rule was brought into effect.

The Court clarified that it did not accept the defence raised by the Contemnor that he was not aware of the judgment in Milind Ashok Patil’s Case (Supra) as in the reply before the Disciplinary Authority, he had clearly stated that he was aware of this judgment.  Another reason for not accepting this defence was that the Contemnor had received the final writ which contained the judgment of this Court wherein this Court had referred and relied on Milind Ashok Patil’s Case(Supra). The third reason given by the Court was that all the earlier affidavits proceeded on the foundation that the Contemnor had knowledge of this judgment. However, due to pressure of work and due to inadvertence, compliance to the judgment of this Court was not made.

“ In the facts of the present case where 35 poor prisoners were denied their residual fundamental right under Article 21 of the Constitution of India, most of whom could not afford to challenge the denial of emergency parole. Per contra, six ineligible prisoners were released on emergency parole for reasons best known to him”, affirmed the Bench.

The Bench opined that the reply of the Contemnor before the Disciplinary Authority showed wilful disobedience on his part by not following the binding precedent of this Court at least 41 times. Not accepting the Contemnor’s submission that there was no wilful disobedience on his part, the High Court said, “Had the case been in relation to a singular or small number of prisoners, which could have been regarded as a mistake, but having conscious knowledge about the judgment and passing 41 orders either refusing or granting emergency parole because other prisons have not followed the binding precedent, is nothing but wilful disobedience of the binding precedent of this Court.”

Considering the fact that the defiant acts on the part of the Contemnor affected the residual liberty of 41 prisoners, the Bench opined that the apology tendered by the Contemnor was made only to avoid the punishment.

Thus, holding the Superintendent-Contemnor guilty of committing wilful disobedience of the binding precedent of this Court Milind Ashok Patil’s case(Supra), the High Court ordered his imprisonment for seven days.