Kisan S/O. Soma Rathod (C-8098) vs The State Of Maharashtra And Anr
2017 Latest Caselaw 5811 Bom

                                        (1)                             crwp665.17

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD


                CRIMINAL WRIT PETITION NO. 665 OF 2017


Kisan s/o. Soma Rathod (C-8098)                           ..       Petitioner
Age. 38 years,
Central Prison, Aurangabad.

                                      Versus

1.    The State of Maharashtra                            ..       Respondents
      Through Divisional Commissioner,
      Aurangabad.

2.    The State of Maharashtra
      Through Superintendent Central Prison,
      Aurangabad.


Mr.Rupesh A. Jaiswal, Advocate for the petitioner.
Ms.S.S. Raut, A.P.P. for respondent Nos. 1 and 2.

                                           CORAM :        S.S.SHINDE &
                                                          S.M.GAVHANE,JJ.

                                      RESERVED ON :       26.07.2017
                                    PRONOUNCED ON :       10.08.2017


J U D G M E N T [PER : S.M. GAVHANE, J.] :-

1. Rule. Rule made returnable forthwith and heard

finally with the consent of the parties.

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2. The petitioner - a life convict, who is

undergoing sentence in Aurangabad Central Prison, has

filed this petition under Article 226 of the Constitution

of India and claimed relief in terms of prayer clause

(B), which is reproduced as under :-

"B] To quash and set aside order of Respondent No.1 dated 21.02.2017 and thereby direct Respondent No.1 to release Petitioner on Parole Leave for 30 days on execution of Personal (P.R.) Bond and, (S.B.) Bond with Guarantor and or,"

3. The petitioner's case is that he was convicted

by the Sessions Judge, Mumbai for the offence punishable

under section 302 of the Indian Penal Code by judgment

and order dated 18.08.2007. He was an under-trial

prisoner since 23.10.1998, till he has been convicted by

the Trial Court. He applied to respondent No.2 - the

Superintendent, Central Prison, Aurangabad to release him

on parole. The said application was forwarded by the

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respondent No.2 to the respondent No.1 - the Divisional

Commissioner, Aurangabad. By impugned order dated

21.02.2017, the respondent No.1 rejected said application

on the ground that there is possibility of committing

serious crime by the petitioner on his releasing on

parole.

4. Aggrieved by the aforesaid order, the petitioner

has filed the present writ petition on the grounds that

there was no reason to give negative police report

against him. There is no material to show that he would

commit offence, if released on parole. He has not

committed any offence when he was previously released on

parole. Therefore, report of the police authorities in

this respect is without any basis. Earlier on one

occasion he was released on parole in the year 2013, he

surrendered one day after the expiry of the said period.

The respondent No.1 failed to consider that, mother of

the petitioner is suffering from post menopausal uterine

bleeding and she needs to be operated on urgent basis.

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The respondent No.1 has not properly appreciated the

relevant rules and particularly Rule 19 of the Prisons

(Bombay Furlough and Parole) Rules, 1959.

5. On the respondent's behalf an affidavit of Vijay

s/o. Sahebrao Raut, who is working as a Tahsildar in the

office of respondent No.1, is filed. In the said

affidavit, he has stated that the Superintendent, Central

Prison, Aurangabad had submitted proposal to sanction

parole to the petitioner in the office of the respondent

No.1. In pursuance of the said proposal a report was

called from the Office of Assistant Commissioner of

Police, Mumbai Division, who submitted report after

enquiry mentioning that Agripada Police Station has

submitted a report that if the petitioner is granted

parole, there is possibility of committing serious crime

by him. As such, strong objection was taken to release

the petitioner on parole by the Assistant Commissioner of

Police, Mumbai. So also, it is stated that there would

be election of Municipal Corporation, Mumbai in February,

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2017 and therefore also the Assistant Commissioner of

Police, Mumbai had objected to grant parole to the

petitioner. Considering the report of the Assistant

Commissioner of Police, Mumbai Divison, respondent No.1

rejected the petitioner's application on 21.02.2017.

Contending that there is no merit in the petition, the

respondents have claimed to dismiss the same.

6. Learned Counsel appearing for the petitioner

made submissions in the light of grounds referred to

above in the petition and more particularly he submitted

that there is no material to show that the petitioner

would commit serious offence in-case he is granted parole

and as such there is no basis to the report of the

Assistant Commissioner of Police, Mumbai Divison,

objecting to grant parole application of the petitioner.

Merely because respondent No.2 - Superintendent, Central

Prison, Aurangabad has not recommended to grant parole to

the petitioner is not a ground to reject the petitioner's

application for parole. Learned Counsel further submitted

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that respondent No.1 has not considered medical

certificate of the mother of the petitioner dated

26.09.2016. Thus, the learned Counsel for the petitioner

has prayed to allow the writ petition and direct the

respondents to grant parole to the petitioner and release

him forthwith.

7. To support his submissions, learned Counsel for

the petitioner has relied upon ratio laid down in the

case of Mohammed Parvez Zulfikar Qureshi Vs. State of

Maharashtra & Ors., 2010 ALL MR (Cri) 574. In the said

case the petitioner was earlier released on furlough and

he surrendered himself to the Prison Authority after

completion of said furlough. It was held that there is

no substance in the apprehension posed in the alleged

adverse police report and consequently rejection of

parole of the petitioner was held not proper. The

impugned order was set aside and the petitioner was

ordered to be released on parole.

(7) crwp665.17

8. On the other hand, learned APP for the

respondents submits that there is possibility of

committing serious crime by the petitioner in-case he is

granted parole, as mentioned in the report of the

Assistant Commissioner of Police, Mumbai Division, as

stated in the affidavit-in-reply and thus she has claimed

to dismiss the petition stating that there is no merit in

it.

9. We have carefully considered the submissions

made by the learned Counsel appearing for the petitioner

and the learned A.P.P. appearing for the respondents.

Besides, we have carefully perused the impugned order

passed by the respondent No.1, copy of medical

certificate of mother of the petitioner and the affidavit

in reply submitted on behalf of the respondents. There

is no dispute that the petitioner is a life convict for

the offence punishable under section 302 of the Indian

Penal Code as per order dated 18.08.2007. Since

23.10.1998 till the date of subject application for

(8) crwp665.17

parole, he was released on parole only on one occasion in

the year 2013, and he reported to the jail authority one

day after expiry of period of parole. Thus, it is not

the case that when the petitioner was released on parole,

prior to the present application claiming 30 days'

parole, he did not report to the jail authority in time

or there was inordinate delay in reporting to the jail

authority after the period of parole was expired.

10. The petitioner had claimed 30 day's parole and

the application in this respect was forwarded to the

respondent No.1 by the respondent No.2 for sanctioning

the same. The said application was rejected by respondent

No.1 by order dated 21.02.2017. The said impugned order

[Exh."A"] passed by the respondent No.1 shows that

application for parole of the petitioner was rejected

mainly on two grounds. First ground is, that the

possibility of committing serious crime by the petitioner

cannot be denied, if he is granted parole, as the said

possibility is mentioned in the report of the Assistant

(9) crwp665.17

Commissioner of Police, Mumbai Division and second ground

is, that in the report of the respondent No.2 -

Superintendent, Central Prison, Aurangabad, said

respondent has not recommended to sanction the parole to

the petitioner. The report/letter of the Assistant

Commissioner of Police, Mumbai Division is not produced

on record by the respondents to show how and on what

basis the Assistant Commissioner of Police, Mumbai

Division has expressed the possibility of committing

serious crime by the petitioner, in-case he is released

on parole. So also, no independent material is produced

by the respondents to accept their contentions that there

is possibility of committing serious crime by the

petitioner, in-case of releasing him on parole. On the

contrary, after release on parole in the year 2013, the

petitioner reported to jail authority only one day after

expiry of the period of parole. This shows that there

was no inordinate delay on the part of the petitioner in

reporting to the jail authority after expiry of the

parole. Moreover, it is not the case of the respondents

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that when the petitioner was released on parole in the

year 2013, he committed any offence. Thus, there is

absolutely no evidence to show that there is substance in

the possibility expressed by the respondents that the

petitioner would commit serious crime, in-case he is

released on parole. Similarly, as regards second ground

of rejecting the petitioner's application of releasing

him on parole, there is no material to show that there is

any base for not recommending the case of the petitioner

to grant parole while forwarding his application for said

leave by respondent No.2 to respondent No.1. There is no

material produced by the respondents to show that since

when the petitioner is in jail, his behaviour in jail is

not good or that there are complaints against him to the

jail authority by other prisoners or others. Therefore,

two grounds referred to above on the basis of which the

respondent No.1 has rejected the petitioner's application

for parole are not sustainable. In-fact, on considering

the ground of illness of mother of the petitioner as

stated in medical certificate dated 26.09.2016, which

( 11 ) crwp665.17

states that she is suffering from Mereorrhagia (Heavy

bleeding from uterus) i.e. post menopausal uterine

bleeding since three months, issued by Dr.Mahendra Y.

Sawant, the respondent No.1 should have considered the

petitioner's application for parole.

11. For the reasons discussed above, we hold that

the impugned order passed by respondent No.1 is not

sustainable and the same is liable to be set aside. In

the result, the following order is passed :-

                (i)              The writ petition is allowed.


                (ii)     The   impugned   order   dated   21.02.2017 

passed by respondent No.1, rejecting the petitioner's application for parole of 30 days is quashed and set aside.

(iii) The Respondent No.1-The Divisional Commissioner, Aurangabad is directed to release the petitioner on parole for a period of 30 (thirty) days from the day of his furnishing surety as per the existing rules and regulations in this respect and on completion of other procedural formalities, if any.

( 12 ) crwp665.17

12. Rule is made absolute in above terms. The writ

petition stands disposed of accordingly. There shall be

no order as to costs.

       [S.M.GAVHANE,J.]                         [S.S.SHINDE,J.]



snk/2017/AUG17/crwp665.17