Ashok Sahadeo Shinde vs The State Of Maharashtra
2017 Latest Caselaw 8202 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


             CRIMINAL WRIT PETITION NO.1201 OF 2017


 Shri Ashok s/o Shahdeo Shinde,
 (Convict No. C-10732)
                                 ...PETITIONER 
        VERSUS             

 1) The State of Maharashtra,
    Through the Secretary,
    Home Department,
    Mantralaya, Mumbai-32,

 2) The Divisional Commissioner,
    Nashik Road Central Prison,
    Nashik, Dist-Nashik (Maharashtra)
                                 ...RESPONDENTS

                      ...
    Mr. Shantanu A. Deshpande Advocate appointed
    for Petitioner.
    Mr. A.B. Girase, Public Prosecutor for
    Respondent Nos.1 and 2.       
                      ...



               CORAM:   S.S. SHINDE AND
                        MANGESH S. PATIL, JJ.

DATE OF RESERVING JUDGMENT : 10TH OCTOBER, 2017.

DATE OF PRONOUNCING JUDGMENT: 13TH OCTOBER, 2017.

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JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and

heard finally with the consent of the learned

counsel appearing for the parties.

2. This Petition takes exception to the

order dated 8th March 2017 passed by the

Divisional Commissioner, Nashik thereby rejecting

the request of the Petitioner to release him on

parole and the order dated 14th June, 2017 passed

by the Additional Secretary, State of Maharashtra

thereby rejecting the appeal filed by the

Petitioner challenging the order passed by the

Divisional Commissioner, Nashik.

3. It is the case of the Petitioner herein

that he applied for furlough, however, by the

impugned order dated 8th March, 2017, his

application has been rejected. The appeal filed by

the Petitioner has been rejected by order dated

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14th June, 2017. In the impugned order passed by

the appellate authority, it is observed that the

medical certificate annexed by the Petitioner

along with the appeal regarding the ailment of his

mother was issued ten months back and the

Petitioner has not placed on record the medical

papers regarding the treatment given to his mother

and the tests conducted during the intervening

period. It is further mentioned in the order that

as the appeal filed by the Petitioner challenging

the conviction and sentence, is pending before the

High Court, in view of the Notification dated 26th

August, 2016 issued by the Home Department, State

of Maharashtra, parole cannot be granted to the

Petitioner.

4. There is no denial to the assertion of

the Petitioner that the Petitioner was earlier

released on furlough and reported back to the jail

authorities after expiry of the furlough leave.

Learned counsel for the Petitioner submits that

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earlier when the Petitioner was released on

parole/furlough, he did not misuse the liberty

granted to him. Learned counsel further submitted

that merely because appeal filed by the petitioner

against conviction and sentence is pending, is no

ground to deny him the furlough in view of the

orders passed by the Division Bench of the Bombay

High Court, Bench at Nagpur, in Criminal Writ

Petition No.196 of 2017 and Criminal Writ Petition

No.97 of 2017 [Arun s/o Gulab Gawli and another

vs. D.I.G.(Prisons) (East) Nagpur and another],

and Criminal Writ Petition No.462 of 2017 [Abdul

Rajjak Sheikh Abdul Nabi Shah vs. Divisional

Commissioner, Nagpur and others].

5. Learned Public Prosecutor, relying upon

the affidavit-in-reply filed by Naib Tahsildar

working in the office of the Divisional

Commissioner, Nashik and also relevant rules,

submits that the prayer of the Petitioner to

release him on parole has been rightly turned down

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by the Respondent authority. He further invites

our attention to the reasons assigned by the

Respondent authority while rejecting the

application of the Petitioner to release him on

furlough leave.

6. We have given careful consideration to

the submissions of the learned counsel appearing

for the Petitioner and learned Public Prosecutor

appearing for the State. Upon careful perusal of

the impugned order passed by the appellate

authority, it is mentioned that the medical

certificate annexed by the Petitioner along with

the appeal regarding the ailment of his mother is

issued ten months back and the Petitioner has not

placed on record the medical papers regarding the

treatment given to his mother and the tests

conducted during the intervening period. It is

further mentioned in the impugned order that as

the appeal filed by the Petitioner challenging the

conviction and sentence, is pending before the

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High Court, in view of the Notification dated 26th

August, 2016 issued by the Home Department, State

of Maharashtra, parole cannot be granted to the

Petitioner.

7. So far as the first ground is concerned,

the Petitioner can be asked to submit latest

medical certificate/report in respect of ailment

of his mother along with the reports of the test

conducted, if any. So far as the ground of

pendency of the appeal filed by the Petitioner

against conviction and sentence is concerned, the

said ground stated in the impugned order is not

sustainable. Merely because appeal filed by the

Petitioner challenging his conviction and sentence

is pending before the High Court is no ground to

deny him the parole/furlough in view of the orders

passed by the Division Bench of the Bombay High

Court, Bench at Nagpur, in Criminal Writ Petition

No.196 of 2017 and Criminal Writ Petition No.97 of

2017 [Arun s/o Gulab Gawli and another vs. D.I.G.

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(Prisons) (East) Nagpur and another], and Criminal

Writ Petition No.462 of 2017 [Abdul Rajjak Sheikh

Abdul Nabi Shah vs. Divisional Commissioner,

Nagpur and others].

8. In the light of above, impugned orders

are quashed and set aside. The Petitioner to file

fresh application with Respondent authorities,

accompanied with latest medical certificate/

report in respect of ailment of his mother. Upon

filing such application, we direct the Respondent

authorities to decide the same as expeditiously as

possible, however within TWO WEEKS from the date

of filing such application, without raising the

same objections/grounds, which have been raised in

the impugned orders.

9. Rule made absolute in above terms. The

Writ Petitions stands disposed of, accordingly.

10. We appreciate the sincere efforts taken

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by learned counsel Mr. Shantanu A. Deshpande in

promptly preparing the memo of the Petition,

filing the same within time and extending able

assistance during the course of hearing of the

Petition so as to reach to the correct conclusion.

Since, Mr. Shantanu A. Deshpande, learned counsel

is appointed to prosecute the cause of the

petitioner, his fees be paid as per the schedule

of fees maintained by the High Court Legal

Services Sub-Committee, Aurangabad.

[MANGESH S. PATIL, J.] [S.S. SHINDE, J.] asb/OCT17