Arun S/O Gulab Gawli vs Divisional Commissioner, Nagpur ...
2021 Latest Caselaw 6261 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.

              CRIMINAL WRIT PETN. NO. 258 OF 2021

PETITIONER :-                     Arun S/o Gulab Gawli, C-8535, Aged
                                  about 64 years, R/o. Gitai Society, Dagdi
                                  Chowl, Baburao Jagtap Marg, Byculla
                                  (W), Mumbai : 11.
                                  Presently Nagpur Central Prison, Nagpur.

                                      ...VERSUS...

RESPONDENTS :-               1. Divisional    Commissioner,                      Nagpur
                                Division, Nagpur.

                             2. The Superintendent                  Central      Prison,
                                Nagpur.

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             Mr. Mir Nagman Ali, Advocate for the petitioner.
              Mr. S. P. Deshpande, A.P. P. for the respondents.
-------------------------------------------------------------------------------------------

                       CORAM : Z.A.HAQ AND AMIT B. BORKAR, JJ.

DATED : 08.04.2021.

ORAL JUDGMENT : (Per : Amit B. Borkar, J.)

1. Heard.

2. Rule. Rule made returnable forthwith.

3. The present Criminal Writ Petition is directed against the

order dated 03/03/2021 passed by the respondent No.1, whereby the

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application of the petitioner for grant of parole leave came to be

rejected on the basis of adverse Police Report, in view of Rule 4(4) of

the Prisons (Bombay Furlough and Parole) Rules, 1959 (hereinafter

referred to as "Rules of 1959"). The petitioner is convicted for the

offences punishable under sections 302, 120(B) of the Indian Penal read

with sections 3(1)(i), 3(i)(ii), 3(2) and 3(4) of the Maharashtra Control

of Organized Crime Act is undergoing imprisonment for life. The

petitioner is undergoing sentence in Nagpur Central Jail.

4. The petitioner, on 26/12/2020, filed an application with

the respondent No.2 seeking parole leave of 45 days to perform surgery

of her wife, who is suffering from Chronic Suppurative Otitis Media

(CSOM) to left ear. The respondent No.2 called for report from the

Assistant Police Commissioner, Agripada Division, Mumbai by

communication dated 18/01/2021. The Assistant Police Commissioner

sent a report accepting the fact that the wife of the petitioner suffers

from illness as mentioned in the application and Jaslok Hospital,

Mumbai has issued an advise to his wife to undergo surgery. It is stated

in the report that the son and other relatives of the wife of the

petitioner are capable of taking care of her. It is also stated that when

the petitioner was granted leave earlier from 17/04/2018 till

25/04/2018, an offence bearing Crime No.165 of 2018 was registered

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against the wife of the petitioner. It is stated that since the petitioner is

a leader of syndicate and involved in number of criminal activities, the

Police Report was adverse. The respondent No.1, therefore, by order

dated 03/03/2021, rejected parole leave application of the petitioner.

5. The petitioner has therefore, filed present petition

challenging order dated 03/03/2021. This Court, on 18/03/2021

issued notice to the respondents. The respondent No.1 in pursuance of

notice of this Court filed a reply stating that in view of adverse Police

Report and the petitioner being involved in number of criminal

activities, his parole application is rightly rejected. The respondent

No.2 has filed reply stating that during parole leave granted to the

petitioner from 17/04/2018 to 25/04/2018, an offence was registered

against the wife of the petitioner. It is stated that if the petitioner is

released on parole leave, there is danger to the complainants and

witnesses. The respondent No.2 in paragraph-7 has indicated charts of

furlough and parole leave granted to the petitioner on earlier occasions,

which is as under:-

Furlough Chart

Sr. Particulars Date of Date of Remarks No. Release Surrendered 01 Furlough Leave 13.04.2016 Surrendered Surrender himself for 28 days on due date. i.e. on 12.05.2016 02 Furlough Leave (As per 04.05.2017 Surrendered Surrender himself

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order by Hon'ble High for 28 days on due date i.e. on 02.06.2017. Court) 03 Furlough Leave (As per 08.05.2019 Surrender Surrender himself order by Hon'ble High for 28 days on due date i.e. on 06.06.2019. Court) 04 Furlough Leave (As per 28.07.2020 Surrender Surrender himself order by Hon'ble High for 28 days on due date i.e. on 26.08.2020.

         Court)


                                   Parole Chart

Sr. Particulars                 Date          of Date     of Remarks
No.                             Release          Surrendered
01       Parole Leave (As per 05.05.2015 Surrendered Surrender himself

order by Hon'ble High for 15 days on due date. i.e. on 12.06.2015 Court) and extended 21 days 02 Parole Leave (As per 21.10.2016 Surrendered Surrender himself order by Hon'ble High for 13 days on due date i.e. on 02.11.2016. Court) 03 Parole Leave 17.04.2018 Surrender Surrender himself (Emergency Parole for 07 days on due date i.e. on 25.04.2018. leave) 04 Parole Leave (As per 30.04.2018 Surrender Surrender himself order by Hon'ble High for 45 days on due date i.e. on 30.06.2018.

         Court)                and extended
                               15 days
05       Parole Leave (As per 12.03.2020 Surrender Surrender himself

order by Hon'ble High for 45 days on due date i.e. on 03.06.2020.

         Court)                and extended
                               38 days

6. We have carefully considered the impugned order passed by

the respondent No.1. At this stage, it would be necessary to consider

Rule 19 of Rules of 1959. Rule 19 of Rules of 1959 contemplates that

the prisoner will be releases on parole for such period as the Competent

Authority in its discretion may order in case of serious illness or death

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of any member of prisoner's family or a nearest relatives or a pregnant

woman prisoner for delivery or for any other sufficient cause. Rule 22

of Rules of 1959 deals with procedure to be required by Authority after

receipt of application. Sub-rule (2) of Rule 22 makes it obligatory on

the part of the District Superintendent of Police or the Commissioner of

Police as the case may be to make enquiries and ascertain whether the

ground on which parole is applied is genuine and are required to submit

the report in this regard to the Competent Authority immediately

mentioning therein whether they recommend grant of parole or not.

7. The first reason for rejection of parole leave is the offence

allegedly committed by wife of the petitioner is Crime No.165 of 2018

under sections 143, 147, 149, 427, 506, 385, 386, 387 of the Indian

Penal Code during parole leave granted to the petitioner from

17/04/2018 to 25/04/2018. This Court while releasing the petitioner

on parole by judgment and order dated 26/02/2020 in Criminal Writ

Petition No.89 of 2020 had considered the said factor and granted

parole leave to the petitioner. This Court, while releasing the petitioner

on parole leave by order dated 26/02/2020 had also considered the

apprehension expressed in the impugned order that the petitioner is

leader of gang.

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8. The third reason for rejection of parole leave of the

petitioner is that the son and daughter of the petitioner can take care of

the wife of the petitioner in case of surgery. This court by order dated

26/02/2020 had released petitioner on parole leave on the ground of

illness of his wife. This Court while granting parole leave to the

petitioner in order dated 26/02/2021 had observed that no person in

the family can extend a support or help to ailing wife as her husband

would and in such a case, the husband himself would like to see his

wife or otherwise his anxiety will affect his well being adversely.

Perusal of certificate issued by Jaslok Hospital dated 15/03/2021

reflects that the date of surgery is postponed to 15/04/2021. The

report of enquiry prepared by the Assistant Police Commissioner,

Agripada Division, Mumbai does not dispute the fact of necessity of

surgery of wife of the petitioner and genuineness of certificate dated

15/03/2021. Taking into consideration the nature of serious illness i.e.

Chronic Suppurative Otitis Media (CSOM) to left ear, we are satisfied

that the petitioner deserves to be released on parole.

9. A bare perusal of the charts referred above show that on

each occasion whenever the petitioner was released on either furlough

or parole leave, the petitioner had surrendered himself on due date

before the Prison Authorities. The respondents have not pointed out

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that the petitioner had made any act to endanger life of any person, nor

is it pointed out that the petitioner has misused the parole or furlough

leave granted to him.

10. In the result, we pass following order.

i. The impugned order dated 03/03/2021 passed by the

respondent No.1 rejecting parole application No.6 of 2021

of the petitioner is quashed and set aside.

ii. The respondent No.1 is directed to grant parole leave to

the petitioner as per his entitlement, eligibility and upon

such conditions as may be permissible to be imposed upon

the petitioner in terms of the Prisons (Bombay Furlough

and Parole) Rules, 1959 within a period of one week from

the date of receipt of this order.

11. Rule is made absolute accordingly.

                       (AMIT B. BORKAR, J)                         (Z.A.HAQ, J)



 Ghanshyam
 Khunte
 Digitally signed by
 Ghanshyam Khunte
 Date: 2021.04.09
 15:54:55 +0530




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