Radhe Jholidas Mandal vs The State Of Maharashtra
2018 Latest Caselaw 342 Bom

                                                                  23. Cri.WP 5034-17.doc

DDR

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION
                            WRIT PETITION NO. 5034 OF 2017

       Radhe Jholidas Mandal                                     ...Petitioner
               Vs.
       The State of Maharashtra                                  ...Respondent
                                      ...........
       Mr. Prosper D'Souza, Advocate appointed for the petitioner.
       Mrs. G.P. Mulekar, A.P.P. - State.
                                      ...........

                        CORAM : SMT. V.K. TAHILRAMANI ACTING C.J.  
                                       AND M.S.KARNIK, J.

DATE : 11th JANUARY, 2018.

ORAL JUDGMENT (PER SMT. V.K. TAHILRAMANI, A.C.J.):-

Heard both sides.

2. The petitioner preferred an application for death

parole on 14/5/2016, on the ground that his mother expired on

30/4/2016. The said application was rejected by order dated

3/5/2017. Being aggrieved thereby the petitioner preferred an

appeal which was dismissed by order dated 1/7/2017, hence,

this petition.

23. Cri.WP 5034-17.doc

3. The application of the petitioner for death parole

came to be rejected on the ground that a prisoner who is

convicted for the offence such as dacoity, terrorist crime,

kidnapping, smuggling or under the NDPS Act cannot be

granted furlough. Notification dated 26/8/2016 states that the

prisoners who cannot be granted furlough, are also not eligible

to be released on parole. The learned APP placed reliance on

Rule 4 (13) which states that a prisoner is not eligible to be

released on furlough, if he has been convicted for the offence of

dacoity, terrorist crime, kidnapping, smuggling or under the

NDPS Act. As stated earlier, this Notification is dated 26/8/2016

and the application of the petitioner is dated 14/5/2016, hence,

this Notification cannot be made applicable to the case of the

present petitioner. Moreover, Rule 4(13) of Prisons (Bombay

Furlough & Parole) Rules, 1959, speaks of 'dacoity' which falls

under Section 395 of the Indian Penal Code whereas the

petitioner has been convicted for the offence of 'robbery' which

falls under Section 392 of the Indian Penal Code. In this view of

the matter, also this Notification cannot be made applicable to

23. Cri.WP 5034-17.doc

the case of the petitioner. The case of the petitioner does not fall

under Rule 4 (13). Thus, the grounds on which the application

of the petitioner for parole came to be rejected are not good

grounds and deserves to be set aside.

4. As far as appellate order is concerned, it states that

emergency parole on account of death cannot be granted 1 year

after the death, hence, the appeal was dismissed. No doubt, the

mother of the petitioner expired on 30/4/2016 but it is noticed

that the petitioner preferred the application for parole on

14/5/2016. The said application came to be rejected on

3/5/2017 and the appellate order is passed on 1/7/2017 i.e.

more than one year after the petitioner preferred the application

for death parole. As far as delay of more than one year is

concerned, the petitioner cannot be held responsible for the

same and it is the authorities who have delayed in considering

the application of the petitioner for death parole. The authorities

cannot take advantage of delay which was caused by them. As

far as this aspect is concerned, the learned APP states that after

the petitioner preferred the application for death parole, the

23. Cri.WP 5034-17.doc

police report was called from Madhubani, State of Bihar and as

the police report was not received, there was delay in deciding

the application and the appeal of the petitioner. She further

pointed out that the police report was finally received on

30/9/2017. The copy of the said police report is taken on record

and marked 'X' for identification. The said police report shows

that the mother of the petitioner expired on 3/4/2016 at

Madhubani, State of Bihar. In this view of the matter, we find

that none of the grounds are good grounds and the rejection

order and the appellate order are set aside. The petitioner shall

be released on parole subject to usual terms and conditions as

set out by the competent authority. The Writ Petition is disposed

of accordingly.

5. Rule is made absolute in above terms.

6. Office to communicate this order to the petitioner

who is in Nashik Road Central Prison, Nashik.

 (M.S.KARNIK, J.)                                (ACTING CHIEF JUSTICE)