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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 62 OF 2017
PETITIONER : Bablu @ Yogendra S/o Subhash Usare (In Jail)
(C-4782), Central Prison, Amravati
VERSUS
RESPONDENTS: 1] State of Maharashtra,
through Divisional Commissioner,
Amravati
2] The Superintendent of Central Prison,
Amravati.
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Mr. A. Y. Sharma, Advocate appointed for the petitioner.
Mr. M. K. Pathan, A.P.P. for respondent nos.1 and 2
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CORAM : PRASANNA B. VARALE and
MURLIDHAR G. GIRATKAR, JJ.
DATE : JUNE 09, 2017. ORAL JUDGMENT
Rule. Rule is made returnable forthwith. Heard finally by consent.
2] The grievance of the petitioner in the present petition is rejection of his prayer for grant of extension of parole leave. ::: Uploaded on - 12/06/2017 ::: Downloaded on - 13/06/2017 00:39:35 :::
2 CRIWP62.17.odt 3] The petitioner/convict (C-4782), presently lodged in
Central Prison, Amravati, is suffering conviction under Section 304-B of the Indian Penal Code. The petitioner, on the ground of ailment of his wife, had submitted an application seeking parole leave. It seems that there was no adverse material against the petitioner and as such an order was passed in favour of the petitioner granting him parole leave for 30 days. The petitioner was accordingly released on 26.4.2016. During the period of parole leave availed by the petitioner, he submitted an application dated 07.5.2016 for extension of parole leave. A copy of the application is placed on record at Annexure-A. It was submitted in the application that his wife is seriously ailing and needs medical advise and assistance. It was further submitted that as there is no other adult male member in the family to look after the ailing wife, he may be granted extension of parole leave by 30 days. As there was no decision or any information received by the petitioner on his application, the petitioner took recourse to the Right to Information Act, 2005. By communication dated 17.11.2016, it was informed to the petitioner that his application was returned back in view of the Government Gazette publication, by which the relevant furlough and parole rules ::: Uploaded on - 12/06/2017 ::: Downloaded on - 13/06/2017 00:39:35 ::: 3 CRIWP62.17.odt have undergone a change.
4] Mr. Sharma, the learned counsel for the petitioner submitted that the action of the authorities namely not granting extension of parole leave and returning back the application to the authorities on the ground of change in the Rules, is clearly unsustainable. The learned counsel further submitted that the petitioner had submitted the application for extension during the period of parole leave granted to him and as per the Rules prevalent at the time of submission of the application, he was entitled to extension on the ground raised by him namely, ailment of his wife. The learned counsel, in support of his submissions, placed reliance on the judgment of this Court in the case of Sharad Devaram Shelake .vs. The State of Maharashtra, reported in 2016 All M.R. (Cri) 4128.
5] In the reply filed by the State, the ground of change of Rules is reiterated, supporting the action of the respondent authorities.
6] In view of the above referred facts, we are of the opinion
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that the action of the respondent authorities is clearly unsustainable. The application seeking parole leave was already granted by the respondent no.1 and the applicant was availing the same for 30 days. That period of parole was to expire on 25.6.2016 and much prior to expiry of the said period, the petitioner had submitted the application for extension i.e. on 07.5.2016 and he could have certainly benefited by the Rules prevailing at that time. The respondent authorities could not have rejected the prayer of the petitioner for extension giving retrospective effect to the Rules. The learned counsel for the petitioner was justified in submitting that the relevant date for consideration of the application for extension was the date on which, the petitioner had submitted the application. It would be useful to refer to the relevant observations of the Division Bench of this Court in the judgment in Sharad Shelake's case (supra).
"19. The Division Bench of this Court in the case of Subhash Hiralal Bhosale Vs. State of Maharashtra & Anr. 2014 All MR (Cri) 4330, has held that the relevant date is the date of application for furlough and not the date of conviction. It, therefore, follows that the relevant date is the date of application and not date of offence or date of conviction. Thus, it is not the date on which the offence was registered or the prisoner was convicted and sentenced which is relevant but the date on which he applied for furlough leave. If the application is after ::: Uploaded on - 12/06/2017 ::: Downloaded on - 13/06/2017 00:39:35 ::: 5 CRIWP62.17.odt 23.2.2012, the Notification / Circular dated 23.2.2012 would apply. The decision in the case of Subhash Bhosale (supra) is dated 4.9.2013 and the decision in the case of Balu Ubale [2014 All MR (Cri) 2413] (supra) is dated 18.2.2014 and the decision in the case of Sardar Khan (supra) is dated 5.3.2014. Both these decisions were rendered in ignorance of the earlier decision of the Division Bench of this Court in the case of Subhash Bhosale (supra) by which the issue was concluded that the relevant date to be considered in relation to the Circular dated 23.2.2012 is the date of application. The decision in the case of Subhash Bhosale (supra) was not pointed out when the case of Balu Ubale [2014 All MR (Cri) 2413](supra) and Sardar Khan (supra) were decided. Thus, it will have to be held that these two decisions are per incuriam. In this view of the matter, reliance on these decisions would not advance the case of the petitioner.
7] The learned counsel for the petitioner submitted that the respondent authorities may initiate action against the petitioner for surrendering late by 10 days for no fault of the petitioner. The grievance of the learned counsel for the petitioner is justified. The respondent authorities could not have returned back the application of the petitioner. It was necessary for the respondent-authorities to pass certain orders on the application. The respondent authorities clearly erred in taking unreasonable stand for which the petitioner is not required to suffer.
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6 CRIWP62.17.odt 8] In the result, the criminal writ petition is allowed.
The respondent authorities are hereby directed not to initiate any action against the petitioner treating surrender of the petitioner as belated surrender.
The fees of the learned counsel appointed for the petitioner is quantified at Rs.1,500/- (Rupees One thousand Five hundred only).
JUDGE JUDGE
Diwale
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