Bablu S/O. Subhash Usare (In Jail) vs State Of Maharashtra Thr. ...
2017 Latest Caselaw 2990 Bom

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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.

  ----------------------------------------------------------------------------------------------
            Mr. A. Y. Sharma, Advocate appointed for the petitioner.
            Mr. M. K. Pathan, A.P.P. for respondent nos.1 and 2
  ----------------------------------------------------------------------------------------------

                      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.

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 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

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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

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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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 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