4. cri wp 5130-17.doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 5130 OF 2017
Radheshyam Bhagwandas Shah .. Petitioner
Versus
The State of Maharashtra .. Respondent
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Appearances
Ms. Rohini M. Dandekar Advocate (appointed) for the Petitioner
Ms. V.S. Mhaispurkar APP for the State
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CORAM : SMT. V.K. TAHILRAMANI, Acting C.J. &
M.S. KARNIK, J.
DATE : DECEMBER 21, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, A.C.J.] :
1. Heard both sides.
2. The petitioner is praying to release him for a period of 60 days to complete the course of "Dissertation" as part of study of MARD.
3. The petitioner had preferred an application for parole leave on 29.9.2011 before the District Magistrate, Vadodara jfoanz vkacsjdj 1 of 4 ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:27:44 :::
4. cri wp 5130-17.doc on the ground of sickness of his mother. By order dated 15.11.2011, the said application was rejected by the District Magistrate, Vadodara who has the authority to consider the case of the petitioner for parole leave. The application came to be rejected on the ground that he is not entitled for parole leave since his appeal is pending before the Division Bench of the High Court at Bombay. Thereafter, the petitioner preferred another application before the District Magistrate, Vadodra on 15.5.2012 seeking parole on the ground of sickness of his mother. The said application was rejected on the same ground i.e since his appeal was pending before the Division Bench of the High Court at Bombay, he was not entitled to parole leave. Thereafter, the petitioner preferred an application in the High Court at Bombay challenging the orders passed by the District Magistrate, Vadodara. However, the said application was returned to the High Court of Gujrat at Ahmedabad vide communication dated 7.2.2013 for taking further necessary action. The High Court of Gujrat at Ahmedabad relied on the decision in the case of State of jfoanz vkacsjdj 2 of 4 ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:27:44 :::
4. cri wp 5130-17.doc Gujarat Vs. Jayantilal Maganlal Patel 1 wherein it is held that the convict whose appeal is pending before the higher forum cannot be enlarged on parole leave. Reliance was specifically placed on paragraph 10 of the said judgment which reads as under:-
" The Prisons (Bombay Furlough and Parole) Rules, 1959 would not apply to the grant of parole to a convicted person whose appeal is pending before the Appellate Court and when the Appellate Court is in seisin of the matter and is empowered under Section 389 of the Code of Criminal Procedure, 1973 to pass appropriate orders. We are in agreement with the aforesaid view. We, therefore, hold that the power of grant of parole cannot be exercised by the administration where the appeals of the convict concerned are pending and such persons can be released on bail only by the Appellate Court under Section 389(1) of the Code of Criminal Procedure and not by the administration. The power of the administration will be exercisable only during the remainder of the period after conviction as held by the Supreme Court in K.M. Nanavati's case (supra).
[emphasis supplied]
4. In view of the fact that the appeal of the petitioner was pending before this Court, the petitioner has sent the present application / Writ Petition on 19.4.2016. It is 1 1995(2) GLH 260 jfoanz vkacsjdj 3 of 4 ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:27:44 :::
4. cri wp 5130-17.doc pertinent to note that this application for releasing the petitioner for a period of 60 days has been made in Cri. Appeal No. 487 of 2010 which was then pending before this Court. However, Cri. Appeal No. 487 of 2010 has been disposed of by this Court by order dated 4.5.2017. Now, there is no appeal of the petitioner pending before this Court. In this view of the matter, it would be appropriate that the petitioner prefers necessary application to the concerned Authority in the State of Gujarat. Thus, we are not inclined to interfere, rule is discharged.
5. Office to forthwith communicate this order to the petitioner who is in Vadodara Central Prison, Gujrat.
[ M.S. KARNIK, J ] [ ACTING CHIEF JUSTICE ]
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