Bombay High Court
Sharad @ Sharadchandra Nimba ... vs The State Of Maharashtra on 10 November, 2017
Bench: S.S. Shinde
1 Cri.W.P.1008-17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1008
OF 2017
Sharad @ Sharadchandra S/o Nimba Patil,
Age - 35 years, sentence - Life Conviction
Convict No.8604,
Nashik Road Central Prison, Nashik. ... Petitioner
Versus
1. The State of Maharashtra
Through Home Department,
Mantralaya, Mumbai.
2. The Divisional Commissioner,
Nashik Division, Nashik. ... Respondents
...
Mr. Suniket A. Kulkarni, Advocate for Petitioner
(Appointed)
Mr. D.R.Kale, APP for Respondents - State
...
CORAM : S.S.SHINDE AND
MANGESH S. PATIL, JJ.
RESERVED ON : 01st November, 2017
PRONOUCED ON : 10th November, 2017
JUDGMENT : (Per Mangesh S. Patil, J.)
:-
Rule. The Rule is made returnable forthwith.
With the consent of both the sides the matter is heard
finally.
2 Cri.W.P.1008-17.odt
2. The petitioner, who is suffering a sentence of
imprisonment as a life convict and lodged in Central
Prison at Nashik, forwarded a letter to the Registry,
which has been treated as a Writ Petition and Advocate
Mr. Suniket A. Kulkarni has been appointed to represent
his cause.
3. We have heard the learned Advocate for the
petitioner and the learned APP and we have also
perused the papers annexed with the petition and the
affidavit-in-reply of Respondent No.2 with annexures
including the impugned orders.
4. Shortly stated the facts leading to the filing of this
Writ Petition are to the effect that while under going the
sentence, the petitioner applied for a parole under Rule
19 of the Prisons (Bombay Furlough and Parole) Rules,
1959 (herein after referred to as the 'Prisons Rules'). He
was initially granted a parole for 30 days with effect
from 04.06.2016. On 19.06.2016, he applied to
Respondent No.2 / Divisional Commissioner, Nashik
3 Cri.W.P.1008-17.odt
Division for extension of parole for a further period of 30
days. Respondent No.2 duly extended the parole by 30
days as prayed for. Since the mother of the petitioner
was ill and was advised rest, on 14.07.2016 he again
applied for a further extension of parole by 30 days. The
first period of extension of 30 days was to come to an
end on 04.08.2016. He was under the impression that
even his second request for extension must have been
allowed since on previous three occasions he was
similarly granted 90 days of parole in the year 2011,
2013 and 2014-15. He, accordingly, after expiry of 90
days duly surrendered back to the Jail on 03.09.2016.
However, Respondent No.2, on the same day passed an
order on his application dated 14.07.2016 and rejected
his request for extension of parole on the ground that
under the Prisons Rules, which were amended w.e.f.
26.08.2016, a prisoner is entitled to a maximum of 45
days of parole in a year and which can be extended upto
60 days once in a period of three years only under
exceptional circumstances. The appeal preferred by the
petitioner to the Home Department of the Government of
4 Cri.W.P.1008-17.odt
Maharashtra was also dismissed on 31.03.2017. In view
of such state of affairs, the Superintendent of Jail
issued a notice to the petitioner calling upon him to
show cause as to why his remission of 150 days should
not be deducted by way of punishment. The petitioner
has therefore sought an appropriate writ with following
prayer in Clause-B.
"By issuing a writ of certiorari or any other appropriate
writ or order or directions in the like nature, the order
dated 31.03.2017 passed by the Government of
Maharashtara thereby confirming the order passed by
Divisional Commissioner Nashik, dated 03.09.2016,
thereby refusing to grant extension of parole for the
period of 04.08.2016 to 02.09.2016 may kindly be
quashed and set aside, and the application of the
petitioner dated 14.07.2016 for extension of parole may
kindly be allowed."
5. The affidavit-in-reply filed on behalf of Respondent
No.2 supports the impugned orders.
6. The learned Advocate for the petitioner, in
consonance with the averments in the petition
submitted that there was no ground to refuse the
extension of parole by 30 days when the petitioner had
moved the application for that purpose on 14.07.2016.
Respondent No.2 as also the Home Department of the
5 Cri.W.P.1008-17.odt
Government of Maharashtra were in error in applying
the amended Prisons Rules when in fact the application
for extension was moved before the Rules were
amended. Thus, according to the learned Advocate, the
impugned order suffers from grave error and illegality.
7. The learned APP strongly supported the impugned
order.
8. There is no dispute about the fact that the
application for extension was moved by the petitioner on
14.07.2016. There is also no dispute that the Prisons
Rules were amended with effect from 26.08.2016. There
is similarly no dispute that under the unamended
Prisons Rules, a prisoner was eligible for a maximum
period including extension of a parole for 90 days which
has been brought down to 60 days by virtue of the
amendment dated 26.08.2016. There is no dispute that
the first extension which was granted to him was to
come to an end on 04.08.2016 and therefore, even before
expiry of such extension he had moved the application
6 Cri.W.P.1008-17.odt
for further / last extension on 14.07.2016. Considering
the fact that the Prisons Rules are not merely
procedural Rules but also include substantive rights of
prisoners to be released on furlough and parole, the
petitioner was entitled to be governed by the Prisons
Rules as those where in force either on the date on
which he moved the application i.e. 14.07.2016 or the
date on which his last extension was to begin after
expiry of the first extension on 04.08.2016. In any case,
the right to get an extension which was vesting in the
petitioner had crystalized and should have been
determined latest by 04.08.2016. In other words, his
entitlement to such extension should have been legally
considered as per the Prisons Rules, which were in force
when such right had accrued to him and stood
crystalized on 04.08.2016.
9. However, it is apparent that his application was
not promptly considered by Respondent No.2 and by the
impugned order, he rejected the request by applying the
Law / Prisons Rules, which stood amended and were in
7 Cri.W.P.1008-17.odt
force on 03.09.2016. In this manner, Respondent No.2
has committed a gross error in law in considering the
request of the petitioner for extension by applying
amended Prisons Rules instead of applying the rules as
they were in force on 04.08.2016. Similarly, even the
Home Department of the Government of Maharashtra
has fallen in grave error in overlooking this aspect of the
matter.
10. It is to be remembered that the petitioner must
have been under a legitimate expectation in view of the
previous experience of getting a parole extended upto 90
days on as many as three occasions that even this time
around his request would be favourably considered in
due course of time. As has been rightly submitted by
the learned Advocate for the petitioner had his
application been considered promptly and would have
rejected for some other valid reason, that would have
enabled him to surrender to the Jail promptly as he has
done on 03.09.2016.
8 Cri.W.P.1008-17.odt
11. Be that as it may, it is apparent that by the
impugned order the petitioner has been deprived of a
right which had accrued to him to get extension of
parole. We, therefore, find no hesitation in concluding
that the impugned order suffers from illegality and is
liable to be quashed and set aside as prayed for.
12. Hence the petition is allowed. The Rule is made
absolute in terms of prayer Clause-B.
13. Since, Mr. Suniket A. Kulkarni, the learned
counsel is appointed to prosecute the cause of the
petitioner, he would be entitled for the fees, as per the
schedule of fees maintained by the High Court Legal
Services Sub-Committee, Aurangabad.
(MANGESH S. PATIL, J.) (S.S.SHINDE, J.)
...
vmk/-
