Bombay High Court
Balaji Maruti Londhe (C-8833) vs The State Of Maharashtra on 23 December, 2016
Bench: S.S. Shinde
1497.16WP
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1497 OF 2016
Balaji S/o Maroti Londhe
Age : 31 years, Occ : Nil,
R/o Presently in Central Prison,
Nashik, Tq. & Dist. Nashik.
ig PETITIONER
VERSUS
1. The State of Maharashtra,
Through it's Secretary,
Home Department, Mantralaya,
Mumbai.
2. The Divisional Commissioner,
General Administration Department,
Nashik Road, Nashik,
Tq. & Dist. Nashik.
3. The Superintendent of Prison
Central Prison, Nashik,
Dist. Nashik.
..RESPONDENTS
...
Mr. S.R. Shirsat, Advocate for the
petitioner (appointed).
Mr.P.G. Borade, APP for Respondent-State.
CORAM : S.S. SHINDE &
P.R. BORA, JJ.
RESERVED ON : 22 December, 2016
nd
PRONOUNCED ON : 23rd December, 2016.
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1497.16WP
2
JUDGMENT ( S.S. SHINDE, J)
Rule. Rule made returnable forthwith
and heard finally with the consent of the
learned counsel appearing for the parties.
2. The brief facts leading for filing
this Criminal Writ Petition are as under:-
The petitioner is convicted and
sentenced for life imprisonment. Presently
the petitioner is in Central Prison, Nashik.
The petitioner submitted application along
with necessary documents on 25th April, 2016
before the Respondent No.3 and prayed for
grant of parole leave on the ground of
serious illness of his mother. Thereafter,
after verifying all the record and facts of
the case, the Respondent No.2 was pleased to
allow the proposal of the petitioner on 25 th
August, 2016 and directed the Respondent No.3
to release the petitioner on parole leave on
the terms and conditions mentioned in the
order. The Respondent No.1 issued Government
Notification dated 26th August, 2016, thereby
amending the Prison Act, 1894 and substituted
some clauses. The petitioner was not released
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as per order dated 25th August, 2016 passed by
the Respondent No.2, in view of newly amended
clause No.5(C)(ii) vide Notification dated
26th August, 2016, therefore, he requested the
Respondent No.3 to forward his request for
granting extension.
The Respondent No.3 forwarded the
representation dated 19th September, 2016
submitted by the petitioner to the respondent
No.2 and sought necessary orders. It is
specifically mentioned in the said letter
that, the petitioner could not be released
due to newly substituted clause No.5(C)(ii)
of the Notification and lastly requested to
pass appropriate orders. Again on 3rd October,
2016, the Respondent No.3 sent reminder
letter and requested the respondent No.2 to
pass appropriate order on the representation
of the petitioner, as the period of
sanctioned leave was already lapsed.
Therefore, it would be necessary to grant
extension and pass the appropriate order. On
4th October, 2016, the Respondent No.2 without
considering the date of earlier order i.e.
25th August, 2016 and the date of issuance of
notification i.e. on 26th August, 2016, was
pleased to reject the request of the
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petitioner by giving retrospective effect to
the said notification, though there was no
provision to give retrospective effect to the
said notification.
3. The learned counsel appearing for
the petitioner submits that, the Respondent
No.2 erred while giving retrospective effect
to the Government Notification dated 26th
August, 2016 issued by Home Department,
Government of Maharashtra. Therefore, the
action of the Respondent No.2 is not only
illegal but also causing great injustice to
the petitioner. The learned counsel further
submits that, the Respondent No.2 erred while
observing that, the petitioner is not
eligible to grant parole leave as per clause
No.5(C)(ii) of the Government Notification
dated 26th August, 2016. It is submitted that,
the Respondent No.3 vide reminder letter
dated 3rd October, 2016 specifically brought
to the notice of the Respondent No.2 that,
the petitioner has completed 6 months period
of actual imprisonment to be counted from his
last return from parole as prescribed in
clause 5(C)(ii) of the said Notification. It
is submitted that, the decision of the
Respondent No.2 to give retrospective effect
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to the Government Notification dated 26th
August, 2016 is contrary to the judgment of
the Division Bench of the Bombay High Court
at Principal Seat in the case of Subhash
Hiralal Bhosale V/s State of Maharashtra and
anr.1. It is submitted that, the date on
which the petitioner applied for parole leave
is the relevant date. At the relevant date,
when the petitioner applied and his
application was considered, the Notification
referred in the impugned order was not issued
by the State Government. In fact the said
Notification came to be issued on 26th August,
2016. In the present case, after considering
the record of the petitioner and proposal,
the Divisional Commissioner passed the
detailed order on 25th August, 2016 (Exhibit-A
Page 13) and granted parole leave of 30 days
on condition stipulated in the said order. It
is submitted that, the very same authority
reviewed the earlier order and relying upon
the Notification dated 26th August, 2016, more
specifically, the Rule 5(C)(ii) of the said
Notification, rejected the prayer of the
petitioner for extension of parole leave.
Therefore, the learned counsel appearing for
the petitioner relying upon the pleadings in
1 2013(4) Bom.C.R. (Cri.)318
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the Petition and annexures thereto, submits
that, the Petition may be allowed.
4. On the other hand, the learned
A.P.P. appearing for the Respondent/State
submits that, in case the petitioner files
the fresh application, his prayer for
releasing him on parole leave can be
considered.
5. We have given careful consideration
to the submissions advanced by the learned
counsel appearing for the petitioner and the
learned A.P.P. appearing for the
Respondent/State. With their able assistance,
we have perused the grounds taken in the
Petition, annexures thereto and the reply
filed by the Respondent.
6. In fact the prayer of the petitioner
for extension of parole leave should relate
back to the date of application filed by him
for releasing him on parole leave in view of
the judgment of the Division Bench in the
case of Subhash Hiralal Bhosale (Supra). In
the said judgment in para 21, it is observed
that, it is not the date on which the
petitioner was convicted and sentenced which
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is relevant but the date on which he applied
for furlough leave. The furlough leave
provisions will apply when the petitioner is
undergoing sentence and applies for leave. It
is further observed that, the
Notification/Rules, which are in force on the
date of filing such application will govern
the prayers in the said application.
7.
In the facts of the present case, it
appears that the petitioner applied for
extension of parole leave prior to issuance
of Notification dated 26th August, 2016. In
that view of the matter, the
Notification/Rules which were in force on the
date of application filed by the petitioner
were relevant and the Respondent No.2 was not
correct in placing the reliance on the
Notification issued by the Government of
Maharashtra, Department of Home on 26 th
August, 2016 (Rule 5(C)(ii) therein).
8. In the light of the discussion
hereinabove, we quash and set aside the order
dated 4th October, 2016 passed by the
Respondent No.2. The order dated 25th August,
2016 passed by the Respondent No.2 stands
restored. Accordingly we direct the
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Respondents to act upon the said order
forthwith and on fulfillment of condition in
the said order release the petitioner on
parole leave for 30 days.
9. The Petition is allowed in the above
terms and the same stands disposed of.
10. Rule is made absolute in the above
terms.
(P.R. BORA, J.) (S.S. SHINDE, J.)
SGA
