Bombay High Court
Swapnil S/O. Madhavrao Wakde (In ... vs State Of Maharashtra Thr. ... on 19 December, 2017
Bench: Ravi K. Deshpande
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THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 1094 OF 2017
Swapnil S/o Madhavrao Wakde
(C-9568) Central Prison,
Nagpur. ... Petitioner
VERSUS
(1) State of Maharashtra through
Divisional Commissioner, Nagpur.
(2) Superintendent of Central Prison,
Nagpur. ... Respondents
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Shri A. Y. Sharma, Advocate for the petitioner
Mrs. S. S. Jachak, Additional Public Prosecutor for the respondents
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CORAM : R. K. DESHPANDE AND
M. G. GIRATKAR, JJ.
DATE : 19-12-2017
JUDGMENT (Per : M. G. Giratkar, J.)
Rule. Rule made returnable forthwith. Heard by consent
of the learned counsels appearing for the parties.
2. The petitioner has challenged the impugned order dated
30-10-2017 passed by the respondent no. 1 rejecting the parole leave
application of the petitioner. It is submitted that the petitioner was
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convicted for the offence punishable under Section 302 of the Indian
Penal Code. Since date of arrest i.e. from 12-3-2014, he is in jail. He
applied for parole leave on the ground of illness of his wife. His
application is rejected on the ground that there was no recommendation
by the Superintendent of Police, Chandrapur stating that if he is
released on parole, he would threatened the prosecution witnesses. It is
admitted in the police report that wife of the petitioner is suffering from
fibroadenoma. Dr. Agade advised her to take further treatment from
Gynecologist. It is also mentioned in the impugned order that the
petitioner has filed appeal against his conviction, therefore, as per rule
4(b)(11), he is not entitled for leave, at last, prayed to quash and set
aside the impugned order.
3. Heard learned counsel Shri Sharma for the petitioner and
Mrs. Jachak, learned Additional Public Prosecutor for the respondents.
4. Perused the impugned order. From the perusal of
impugned order, it is clear that as per rule 4(b)(11), his application
came to be rejected on the ground that he has filed appeal against
conviction and it is pending. This Court has granted parole/furlough
leave in cases where appeals are pending against the conviction
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challenging the judgment of conviction. Challenging the judgment of
conviction is fundamental right of the convict and on that ground,
parole/furlough leave cannot be rejected. Hence, impugned order is
liable to be quashed and set aside. In the result, we pass the following
order.
ORDER
(i) The writ petition is allowed in terms of prayer clause
(1) and we hereby quash and set aside the impugned order
dated 30-10-2017 passed by the respondent no. 1. We direct
the respondents to release the petitioner on parole leave for a
period of 30 days for the medical treatment of his wife on
such terms and conditions which they deem fit and proper.
(ii) Rule is made absolute in aforesaid terms with no order
as to costs.
JUDGE JUDGE
wasnik
