Tushar Sahebrao Dalal vs State Of Mah. Thr. Divisional ...
2022 Latest Caselaw 4377 Bom

                                                    1                                  crwp832.21.odt


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

                CRIMINAL WRIT PETITION NO. 832 OF 2021


      Shri Tushar Sahebrao Dalal
      Convict No.C/9067,
      Aged -Major, Occ: Nil, Confined at
      Central Prison, Nagpur                                    ... PETITIONER

             ---VERSUS---

  1. The State of Maharashtra,
     Through Divisional Commissioner,
     Nagpur.
  2. Superintendent, Central Prison,
     Nagpur                                                     ...RESPONDENTS

 -------------------------------------------------------------------------------------------
 Mrs S.D. Wankhede, Advocate for petitioner.
 Ms N.R. Tripathi, Additional Public Prosecutor for respondents.
 -------------------------------------------------------------------------------------------

               CORAM : V. M. DESHPANDE AND
                       AMIT BORKAR, JJ.

               DATE            : 26th APRIL, 2022.


 JUDGMENT : (PER - AMIT BORKAR, J.)

 1.            Heard.

2. Rule. Rule made returnable forthwith.

3. By this petition under Articles 226 and 227 of the

Constitution of India the petitioner is challenging the order dated

27.09.2021 passed by the respondent no.1 rejecting the

application for parole of the petitioner on the ground that the

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petitioner is not eligible under Rule 4(10) of the Prison (Mumbai

Parole and Furlough) Rules, 1957 (hereinafter 'Rules of 1957', for

short).

4. The petitioner convicted for the offence under Section

302 of the Indian Penal Code and is undergoing sentence in

Nagpur Prison. On the date of filing of application he had

completed 7 years of imprisonment.

5. The petitioner filed an application for his release on

parole, which has been rejected by the impugned order dated

27.09.2021 by relying on Rule 4(10) of Rules of 1957.

6. The petitioner has therefore challenged said order by

way of this petition.

7. This Court on 26.11.2021 issued notice to the

respondents. In response of which, the respondent no.1 has filed

reply stating that the petitioner is not eligible for being released

for parole as he has not surrendered himself volunteerily on

earlier occasion when he was released on parole.

8. We have carefully considered the provisions of Rule

4(10) of the Rules of 1957.

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9. The learned counsel for the petitioner placed reliance on

judgment of this Court in the case of Kunal s/o Motiram Maske Vs.

State of Maharashtra and another (Criminal Writ Petition No.556

of 2019). This Court in paragraph 5 has held as under :

"5) Considering above facts and further objection raised by learned Additional Public Prosecutor of petitioner absconding after being released on furlough leave on 26/9/2017 and was required to be arrested and brought back to prison after lapse of 199 days, we find that this by itself can be no ground for rejecting application of petitioner in view of law laid down by the Hon'ble Apex Court in State of Maharashtra and another Vs. Suresh Pandurang Darvakar (AIR 2006 SC 2471) that furlough and parole are to be granted for two different purposes and that it is not necessary to state the reasons while releasing prisoner on furlough, but in case of parole, reasons are required to be indicated in terms of the Rules and that the prisoners on earlier occasion did not surrender after expiry of period of furlough or parole cannot by itself be a ground to deny such leave."

10. In view of observations made by this Court in

paragraph 5, we find that there is no impediment for releasing the

petitioner on parole as prayed for.

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11. We therefore pass the following order:

i.The impugned order dated 27.09.2021 is quashed and set aside.

ii. The respondent no.2 is directed to release the petitioner on parole for a period of 30 days on such terms and conditions as are permissible under the Rules within one week from the date of production of this order.

iii. In view of peculiar facts and circumstances, this order shall not act as a precedent in any other case.

Rule in above terms. Pending application(s), if any, stand(s)

disposed of.

                          JUDGE                                       JUDGE

Wagh