Radheshyam Bhagwandas Shah vs The State Of Maharashtra
2017 Latest Caselaw 9997 Bom

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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

                                                  ...................
            Appearances
            Ms. Rohini M. Dandekar Advocate (appointed) for the Petitioner
            Ms. V.S. Mhaispurkar   APP for the State
                                                   ...................



                              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

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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

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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

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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 ]




jfoanz vkacsjdj                                                         4 of 4