Allowed

Amol Vasant Devkar v. the State of Maharashtra

Bombay HC7 Dec 2012WP/3702/2012

Case brief

AI extract

What is this about?

The Division Bench held that rejecting a parole application on the sole ground of past overstay of parole or furlough is unsustainable in law, as such a ground applies only to furlough. Consequently, the impugned order setting aside the earlier rejection and refusing parole was quashed.

What did the court decide?

The impugned order rejecting parole was quashed. The competent authority was directed to grant parole to the petitioner within two weeks.

Amol Vasant Devkar Vs the State of Maharashtra — Pension and Retirement Benefits | Bombay HC (2012)

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jp chavan

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 3702 OF 2012

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Mrs. Indrayani M. Koparkar for the petitioner Ms. Sangeeta S. Shinde, APP for the State.

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P.C.

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Rule. Learned APP waives service for the State. Forthwith taken up for final hearing.

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The petitioner applied for parole in accordance with the provisions of Prisons (Bombay Furlough and Parole) Rules, 1959. By order dated 8^th November, 2011, the said application was rejected. Rejection is on the ground that there is adverse police report and that considering the propensity of the petitioner, the surety will not be able to control him. The second ground is that when the petitioner was released on leave earlier, he did not return within the stipulated time. By order dated 31^st January, 2012, the State Government confirmed the said order by making an observation that while the petitioner was released on furlough and parole leave earlier, he overstayed for 12 and 34

days, respectively.

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The said order dated 31^st January, 2012 was subjected to challenge by the petitioner in Criminal Writ Petition No. 942 of 2012. By the judgment and order dated 1^st August, 2012, the Division Bench, by setting as the order rejecting parole, directed reconsideration of the same application. In paragraphs 6 and 7 of the judgment the Division Bench observed thus:

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“(6) The Petitioner contends that he has already been penalised for the said default committed by him by imposing deduction of remission period. Further, the Petitioner justly contends that the ground mentioned in the impugned order cannot be the basis to reject the Parole Application unlike in the case of grant of Furlough Leave, where that has been made specific ground for rejection of Furlough Leave Application, vide Rule 4(10). This position is reinforced even from Rule 28, which postulate that the provisions of Rule 8(5), 10, 11 and 12 shall mutatis mutandis apply in the case if release of prisoners on Parole.

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(7) In other words, provision as in Rule 4(10) is not attracted and provided for in the extant regulations to deny the request for grant of parole on the ground that the prisoner has overstayed Parole period or Furlough period in the past. Considering the fact that that is the sole ground mentioned in the impugned decision, the impugned decision cannot be sustained in law.”

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Accordingly, the case of the petitioner was reconsidered in terms of the order of the Division Bench. The challenge in this petition is to the order dated 10^th September, 2012 passed by the State Government. The impugned order refers to order dated 8^th November, 2011 by which prayer for parole was rejected by the Divisional Commissioner. In further part of the order, there is a reference to overstay by the petitioner when leave was granted earlier. What

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is observed in the order is that there is no reason to interfere with the order dated 8^th November, 2011.

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We may observe here that against the order dated 8^th November, 2011, an appeal was preferred by the petitioner which was dismissed by order dated 31^st January, 2012. By the aforesaid judgment and order dated 1^st August, 2012 in Writ Petition No. 942 of 2012, the said order was set aside with the aforesaid observations made in paragraphs 6 and 7. In the impugned order, again a reliance is placed on the fact that the petitioner had overstayed and there was adverse police report.

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It is not the case of the state government that when the petitioner was earlier released on parole and furlough leave he has misconducted himself or has committed any breach except the breach of overstay. It is not the case of the authorities that the ground of sickness of the petitioner’s mother is not genuine. On the contrary in the earlier order dated 8^th November, 2011, the Divisional Commissioner, after referring to the police report, had noted that the petitioner’s mother was ill. As far as the ground of overstay is concerned, the Division Bench, by the aforesaid order, has already held earlier that the said ground is not available for rejecting the application for parole and the said ground is available only for rejecting the application for furlough.

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Thus both the grounds in the impugned order dated 10^th September, 2012 cannot be sustained. Earlier, the application was rejected on the same two grounds and the said order was set aside by this Court. In view of these

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peculiar facts, while setting aside the order dated 10^th September, 2012, a direction will have to be issued to the competent authority to grant parole to the petitioner, subject to compliance of procedural formalities.

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Hence, we pass the following order.

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O R D E R

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i. The impugned order dated 12^th September, 2012 is quashed and set aside.

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ii. The Competent Authority (Divisional Commissioner) shall grant parole to the petitioner for an appropriate period subject to compliance of usual terms and conditions.

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iii. The concerned authority shall act upon authenticated copy of this order.

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iv. As and when the authenticated copy is ready, the learned APP shall forward the same to the competent authority.

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v. The order granting parole shall passed by the concerned authority within the period of two weeks from the date on which the Authenticated copy of this order is received by the said authority.

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vi. Rule is made absolute on the above terms.

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( S.S. SHINDE, J )

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( A.S. OKA, J )

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Amol Vasant Devkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Amol Vasant Devkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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