Bombay High Court orders 7 days jail for prison superintendent for denying emergency parole to eligible prisoners

In a very significant development with far reaching consequences, the Nagpur Bench of Bombay High Court in a recent, refreshing, robust, rational and remarkable judgment titled Hanuman Anandrao Pendam v State of Maharashtra in Criminal Writ Petition No. 537/2021 delivered as recently as on March 16, 2022 has held the Superintendent of Central Prison, Nagpur – Anupkumar M Kumre – guilty of contempt and sentenced him to seven days simple imprisonment for selectively denying prisoners emergency parole during the Covid pandemic. The Division Bench of Justice VM Deshpande and Justice Amit Borkar refused to accept Kumre’s apology, fined him Rs 5,000 and suspended the sentence for 10 weeks, allowing him to approach the Supreme Court for relief. The Nagpur Bench of Bombay High Court observed that, “If the Court finds that the Government’s (officials) action in rejecting the grant of parole to a prisoner has the effect of suffocating the Articles 14 and 21 of the Constitution of India, in that case, the Court must act to restore the rule of law and respect the residuary fundamental rights of the prisoners.” Very rightly so!

To start with, this oral judgment authored by Justice Amit Borkar by a Bench of Nagpur Bench of Bombay High Court comprising of himself and Justice VM Deshpande sets the ball rolling by first and foremost putting forth in para 3 that, “This is 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 the case of Milind Ashok Patil and Ors vs State of Maharashtra, in Criminal Writ Petition-ASDBLD-VC No.65/2020 thereby refusing to release 35 prisoners on emergency parole though eligible and granting emergency parole to 6 prisoners though ineligible. Furthermore, in addition to the aforesaid grounds, notice was issued for making misleading statements made in the affidavit filed before this Court, though cautioned twice earlier by two Co-ordinate Benches of this Court.”

While elaborating on the facts, the Bench then stipulates in para 4 that, “The facts which necessitated initiation of sou-motu contempt proceedings, which are relevant for adjudication of the present proceedings briefly are as under:-

The State of Maharashtra on 08/05/2020 introduced Rule 19(1)(c) in the Maharashtra Prisons (Bombay Furlough and Parole) (Amendment) Rules, 2020 (for short “the said Rules”) providing for the grant of emergency parole in view of the emergent Corona 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.”

As it turned out, the Bench then discloses in para 5 that, “On 03/08/2021, this Court issued notice to the Contemnor and others, pursuance of which the Contemnor filed affidavit-in-reply on 11/08/2021 justifying the rejection of the emergency parole leave of the Petitioner stating that he was absconding for 14 days after expiry of the period of furlough leave of 21 days. However, curiously, the Contemnor filed another affidavit dated 14/09/2021, taking a U-turn and stating that the Petitioner had reported on time on 16/02/2021. However, the Petitioner was directed to go to the Government Hospital for undergoing a Covid test.”

To put things in perspective, the Bench then envisages in para 6 that, “On 27/09/2021, 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, but she was not having copies of such orders. She placed on record one such copy of the order. We, therefore, appointed Mr. F.T. Mirza as Amicus Curiae to assist the Court, as the Advocate appearing for Petitioner is a new entrant in the Bar. We also directed the Contemnor to file his personal affidavit giving all the details in respect of the orders passed after the policy of emergency Corona parole was introduced in a tabular form giving the details of prisoners/convicts who were released on emergency parole though surrendered late on their own as well as those brought in jail be using Police machinery and entire data in respect of the cases where he had released prisoners and rejected emergency parole under the Rules.”

Furthermore, the Bench then discloses in para 7 that, “In pursuance of the said order, the Contemnor filed his affidavit dated 28/09/2021, wherein he stated that 90 prisoners were denied emergency parole as they were found ineligible as per the Rules. The Contemnor, along with the said affidavit, filed five lists which are as under:-

i) List of 292 prisoners who were granted parole;

(ii) List of six prisoners who reported late;

(iii) List of six prisoners who surrendered on their own and were released on parole;

(iv) List of 63 prisoners released on parole; and

(v) List of 90 prisoners who were refused parole.”

As things stand, the Bench then points out in para 8 that, “At this stage, it needs to be noted that Prisoner Suresh Bhoyer’s name is mentioned in the two lists. One list shows that he reported late by seven days and another list shows that he reported on time.”

Notably, the Bench then remarks in para 9 that, “On 30/09/2021 learned Amicus Curiae invited the attention of this Court to various judgments (unreported) of the Co-ordinate Bench of this Court and in particular the order passed in Criminal Writ Petition No. 1069/2020 wherein the Co-ordinate Bench of this Court noted the manner in which the Prison Authorities flout the orders of this Court. Therefore, we directed the Respondent No. 2 to give details of the following facts on oath.

“i. The names of prisoners who were released on emergency parole under Rules though they were not released earlier twice;

ii. The names of prisoners who were denied emergency parole under Rules on the ground that they are residents of other States;

iii. The names of prisoners who were granted emergency parole though residents of other states.

iv. The names of prisoners who were released on emergency parole and after the expiry of the period of 45 days, their parole leave was not automatically extended;

v. The names of prisoners who were released on emergency parole under Rules and after the expiry of 45 days period their parole leave was automatically extended;

vi. The number of applications that were pending for more than one month where the prisoners had sought their release on emergency parole;”

It cannot be glossed over that the Bench then notes in para 10 that, “This Court, after comparing the anomalies in the affidavit, by the order dated 04/10/2021, directed the Contemnor to file an affidavit as to why different treatment is given to different prisoners though they were similarly situated. For the sake of clarity, Paragraphs 1 and 3 of the order dated 04/10/2021 are reproduced herein under:-

“1. In pursuance of order dated 30/09/2021, the respondent No.2 has filed his affidavit dated 01/10/2021 giving list of prisoners, as directed in the said order. Annexure – I of the said affidavit give list of the prisoners, who were released under Rule 19(1)(c) of the Prison Rules, 1959, though they were not released earlier twice. It needs to be noted that in an affidavit dated 20/09/2021, the respondent No.2 by way of Annexure R-7 has given a list of the prisoners whose parole leave had been rejected under Rule 19(1)(c) of the Prison Rules, 1959 for the reason that they were not released earlier on two occasions. The comparison between the affidavits on the face of it shows that the respondent No.2 has released many prisoners but on the same ground has refused parole leave to others during the same period. It is therefore, necessary for the respondent No.2 to explain, prima facie, arbitrary exercise of power.

3. The respondent No.2 shall file his detailed affidavit which shall include explanation / reasons as to why different treatment is given to different prisoners though all were similarly situated. The respondent No.2 shall explain in detail his explanation in relation to any other matter which he things relevant for adjudication of the present petition.””

As we see, the Bench then reveals in para 11 that, “In compliance with the order dated 04/10/2021, the Contemnor filed another affidavit on 06/10/2021 justifying his stand. In Paragraph 5 of the said affidavit, the Contemnor has stated on oath that he had carefully gone through the lists prepared by his office. Further, in Paragraph 1 of the said affidavit, he stated that he had carefully gone through the orders passed by this Court dated 30/09/2021 and 04/10/2021. He had also verified the position available on record in his office.”

Quite significantly, the Bench then observes in para 12 that, “Not being satisfied by the explanation offered by the Contemnor, this Court, on 08/10/2021, issued a notice of suo motu contempt under Rule 9(1) of the Contempt of the Courts (Bombay High Court) Rules, 1994 to Shri Anupkumar M. Kumre. This Court, in the order dated 08/10/2021, gave the detailed reasons as to why prima-facie action for Contempt of Court needs to be taken against the Contemnor. The Co-ordinate Bench of this Court had warned the Contemnor from giving false information or misleading the Court while filing his affidavit. For the sake of convenience, Paragraphs 7 & 8 of the order dated 08/10/2021 read as under:-

“7. The first instance of the indicator of the arbitrariness of respondent no.2 was noted by this Court in Criminal Writ Petition No. 524/2020 in order dated 25th November 2020. (Coram: Sunil B. Shukre and Avinash G. Gharote JJ.) wherein this Court in Para no.11 has observed thus :

“The respondent no. 2 is requested to be cautious in performing of his duty and refrain from any attempt from giving false information to the Court or misleading the Court while filing his reply on affidavit in future.”

8. The second instance is the order passed by this Court in Civil Application No. 188/2021 in Contempt Petition No.56/2021 wherein this Court by order dated 26th February,2021 (Croam: Z.A. Haq and Amit B Borkar, JJ.) by taking a suo moto cognisance of refusal on the part of respondent no.2 to release of a prisoner on bail in spite of specific order passed by the Court. The Court observed in para no.7 that the tenor of the respondent’s explanation shows that he had utterly brushed aside the directions given by the Court to release the accused therein who has overlooked the issue of personal liberty of the accused. Then Court observed that respondent no.2 could not sit in appeal over the directions given by the competent Court. If such action is tolerated, there will not be any meaning to the principle of the rule of law which is the foundation of an institution functioning in a democratic set up. That time, Court noted in earlier order referred to hereinabove and observed that the second respondent had repeated the mistake within a span of ten weeks. Though Court accepted the unconditional apology tendered by the respondent Court was of the view that the entry about the said order should be taken in the service book of respondent no.2, so that officer of such high rank does not commit such a blunder.

Accordingly, we are informed that an entry in the service book of the respondent no.2 was taken, and this Court was communicated with the said fact by way of an affidavit.”

Without mincing any words, the Bench then holds in para 79 that, “On an overall view of the precedent relied upon by the Contemnor and the learned Amicus Curiae, we are satisfied that this Court should not extend the mercy of discharging the Contemnor by accepting his apology as it would amount to encouraging his behaviour of selectively applying binding precedent of this Court. This is not the solitary instance, but earlier Co-ordinate Benches of this Court have cautioned the Contemnor by observing not to indulge in misleading the Court. In spite of such caution, it appears that the Contemnor has filed affidavits before this Court making false statements and giving incorrect information on several occasions, which we have noted earlier. At the cost of repetition, we must mention that on the earlier date of hearing, the Advocate for the Contemnor was made aware of the consequences of the statement made in an affidavit dated 08/03/2022 wherein the Contemnor had feigned ignorance to the judgment of this Court. During the course of the hearing, the Advocate was allowed to go out of the Courtroom to make Contemnor aware of the consequences of making a false statement in an affidavit. In spite of granting sufficient time, the Contemnor persisted with his defence of being not aware of the judgment of this Court in the case of Milind Ashok Patil, which we have found to be false in view of the documents on record. The conduct for which the apology has been tendered cannot be ignored without compromising the dignity of the Court. We, therefore, hold the Contemnor guilty of wilful disobedience of the judgment of this Court in the case of Milind Ashok Patil.”

Most forthrightly, the Bench then holds in para 81 that, “While awarding a sentence on the Contemnor, the Court does so to uphold the majesty of law and not with an idea of vindicating the prestige of the Court. It is really to see that the unflinching faith of people in Courts remains intact. This Court is conscious of the legal position that sentence of fine should be rule and imprisonment is an exception. 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. In spite of caution by two Co-ordinate Benches not to mislead this Court by filing false affidavits, the Contemnor has pleaded false defence of lack of knowledge. The reply before Disciplinary Authority shows that the Contemnor has intentionally disobeyed binding precedent 41 times.”

To be sure, the Bench then maintains in para 82 that, “Section 12(1) of the Contempt of Courts Act provides that the maximum amount of fine may extend to two thousand rupees. It is well settled that the inherent power to punish for contempt is provided in Article 215 of the Constitution of India which states that every High Courts shall be a Court of Record and shall have all the powers of such a Court including the power to punish for contempt of itself. This Constitutional power is an absolute power which cannot be abridged by any statutory law. This power contemplated by Article 215 of the Constitution of India cannot be abridged or controlled by any statute and so, no limitation as contemplated by Section 12 of the Contempt of Courts Act, 1971 can be read in the exercise of that power. When the High Court exercises its powers derived from Article 215 of the Constitution of India, the Contempt of Courts Act 1971, could only be regarded as laying down the procedure to be followed.”

Most remarkably, the Bench then hastens to add in para 83 that, “Therefore, in facts of the present case, we are imposing a fine of Rupees Five Thousand in exercise of the power under Article 215 of Constitution of India deriving support from observations in the recent judgment of the Hon’ble Supreme Court in the case of Re: Vijay Kurle and Others reported in 2020 SCC OnLine SC 407 which is affirmed in Prashant Bhushan, In re (Contempt Matter),(2021) 1 SCC 745; Prashant Bhushan, In re (Contempt Matter),(2021) 3 SCC 160, wherein in Paragraph 36, it is observed as under,

“36. A careful analysis of the Constitution Bench decision leaves no manner of doubt that Section 15 of the Act is not a substantive provision conferring contempt jurisdiction. The Constitution Bench finally left the question of whether the maximum sentence prescribed by the Act binds the Supreme Court open. The observations made in Para 38 referred to above clearly indicate that the Constitution Bench was of the view that the punishment prescribed in the Act could only be a guideline and nothing more. Certain observations made in this judgment that the Court exceeded its jurisdiction in Vinay Chandra Mishra’s case (supra) by taking away the right of practice for a period of 3 years have to be read in the context that the Apex Court held that Article 129 could not take over the jurisdiction of the Bar Council of the State or the Bar Council of India to punish an advocate. These observations, in our opinion, have to be read with the other observations quoted hereinabove, which clearly show that the Constitution Bench held that “Parliament has not enacted any law dealing with the powers of the Supreme Court with regard to investigation and punishment of contempt of itself.” The Court also held that Section 15 is not a substantive provision conferring contempt jurisdiction. Therefore, it is only a procedural section, especially in so far as suo moto contempts are concerned. It is thus clear that the powers of the Supreme Court to punish for contempt committed of itself is a power not subject to the provisions of the Act. Therefore, the only requirement is to follow a procedure that is just, fair and in accordance with the rules framed by this Court.”

Going ahead, the Bench then holds in para 84 that, “Therefore, we pass the following order:-

(a) The Contemnor Anupkumar Kumre is held guilty of committing wilful disobedience of the binding precedent of this Court in the case of Milind Ashok Patil.

(b) The Contemnor Anupkumar Kumre shall undergo simple imprisonment for seven days. In addition, the Contemnor shall pay a fine of Rs. Five Thousand, in default, he shall undergo simple imprisonment for a further seven days.

(c) At this stage, learned Advocate for the Contemnor prays for suspension of the sentence. Accordingly, considering the facts of the case, we suspend the sentence of imprisonment and fine for a period of 10 weeks.

(d) We express our gratitude for the valuable assistance rendered by learned Amicus Curiae Shri F.T. Mirza, Advocate.”

To summarize, the Nagpur Bench of Bombay High Court has taken a very strong exception to the Jail Superintendent’s despicable stand of selectively denying emergency parole to eligible prisoners during the Covid pandemic. This alone explains why the Court ordered 7 day jail term for him. It merits no reiteration that all those men in uniform who hold high position like that of Jail Superintendent as we see in this notable case then full care should be taken to ensure that no one is denied emergency parole who deserves it! It shall be in their own best interests! No doubt, all the courts must also definitely act similarly in similar such cases like the Nagpur Bench of Bombay High Court has done in this noteworthy case so that no men in uniform can ever dare to take the legal rights of prisoners for granted!

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