Allowed

Kisan S/O. Soma Rathod (C-8098) v. the State of Maharashtra and Anr.

Bombay HC10 Aug 2017WP/665/2017

Case brief

AI extract

What is this about?

In this criminal writ petition, a life convict sought parole to allow his mother urgent surgery. The High Court of Bombay held that the rejection of the application based on a police report lacking independent material was unsustainable. The court quashed the rejection order and directed the Divisional Commissioner to grant parole for 30 days upon furnishing surety.

What did the court decide?

Impugned order rejecting parole application is quashed; Respondent No. 1 directed to release petitioner on parole for 30 days upon furnishing surety.

Kisan S/O. Soma Rathod (C-8098) Vs the State… — Pension and Retirement Benefits | Bombay HC (2017)

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( 1 ) crwp665.17

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 665 OF 2017

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Kisan s/o. Soma Rathod (C-8098)..Petitioner
Age. 38 years,
Central Prison, Aurangabad.

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Versus

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1. The State of Maharashtra .. Respondents Through Divisional Commissioner, Aurangabad.

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2. The State of Maharashtra

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Through Superintendent Central Prison, Aurangabad.

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Mr.Rupesh A. Jaiswal, Advocate for the petitioner.
Ms.S.S. Raut, A.P.P. for respondent Nos. 1 and 2.

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CORAM: S.S.SHINDE &
S.M.GAVHANE,JJ.
 RESERVED ON:26.07.2017
PRONOUNCED ON:10.08.2017

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J U D G M E N T [PER : S.M. GAVHANE, J.] :-

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1.Rule. Rule made returnable forthwith and heard

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finally with the consent of the parties.

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2.The petitioner – a life convict, who is
undergoing sentence in Aurangabad Central Prison, has
filed this petition under Article 226 of the Constitution
of India and claimed relief in terms of prayer clause
(B), which is reproduced as under :-

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“B]To quash and set aside order of
Respondent No.1 dated 21.02.2017 and thereby
direct Respondent No.1 to release Petitioner on
Parole Leave for 30 days on execution of
Personal (P.R.) Bond and, (S.B.) Bond with
Guarantor and or,”

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3.The petitioner's case is that he was convicted
by the Sessions Judge, Mumbai for the offence punishable
under section 302 of the Indian Penal Code by judgment
and order dated 18.08.2007. He was an under-trial
prisoner since 23.10.1998, till he has been convicted by
the Trial Court. He applied to respondent No.2 – the
Superintendent, Central Prison, Aurangabad to release him

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on parole. The said application was forwarded by the

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respondent No.2 to the respondent No.1 – the Divisional
Commissioner, Aurangabad. By impugned order dated
21.02.2017, the respondent No.1 rejected said application
on the ground that there is possibility of committing
serious crime by the petitioner on his releasing on
parole.

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4.Aggrieved by the aforesaid order, the petitioner

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has filed the present writ petition on the grounds that

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there was no reason to give negative police report
against him. There is no material to show that he would

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commit offence, if released on parole. He has not

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committed any offence when he was previously released on
parole. Therefore, report of the police authorities in

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this respect is without any basis. Earlier on one

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occasion he was released on parole in the year 2013, he
surrendered one day after the expiry of the said period.

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The respondent No.1 failed to consider that, mother of

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the petitioner is suffering from post menopausal uterine

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bleeding and she needs to be operated on urgent basis.

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The respondent No.1 has not properly appreciated the

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relevant rules and particularly Rule 19 of the Prisons
(Bombay Furlough and Parole) Rules, 1959.

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5.On the respondent's behalf an affidavit of Vijay
s/o. Sahebrao Raut, who is working as a Tahsildar in the
office of respondent No.1, is filed. In the said
affidavit, he has stated that the Superintendent, Central
Prison, Aurangabad had submitted proposal to sanction
parole to the petitioner in the office of the respondent
No.1. In pursuance of the said proposal a report was

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called from the Office of Assistant Commissioner of

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Police, Mumbai Division, who submitted report after
enquiry mentioning that Agripada Police Station has
submitted a report that if the petitioner is granted
parole, there is possibility of committing serious crime
by him. As such, strong objection was taken to release
the petitioner on parole by the Assistant Commissioner of
Police, Mumbai. So also, it is stated that there would

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be election of Municipal Corporation, Mumbai in February,

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2017 and therefore also the Assistant Commissioner of

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Police, Mumbai had objected to grant parole to the
petitioner. Considering the report of the Assistant
Commissioner of Police, Mumbai Divison, respondent No.1
rejected the petitioner's application on 21.02.2017.
Contending that there is no merit in the petition, the
respondents have claimed to dismiss the same.

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6.Learned Counsel appearing for the petitioner
made submissions in the light of grounds referred to
above in the petition and more particularly he submitted
that there is no material to show that the petitioner

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would commit serious offence in-case he is granted parole
and as such there is no basis to the report of the
Assistant Commissioner of Police, Mumbai Divison,
objecting to grant parole application of the petitioner.
Merely because respondent No.2 – Superintendent, Central
Prison, Aurangabad has not recommended to grant parole to
the petitioner is not a ground to reject the petitioner's

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application for parole. Learned Counsel further submitted

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that respondent No.1 has not considered medical
certificate of the mother of the petitioner dated
26.09.2016. Thus, the learned Counsel for the petitioner
has prayed to allow the writ petition and direct the
respondents to grant parole to the petitioner and release
him forthwith.

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7.To support his submissions, learned Counsel for

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the petitioner has relied upon ratio laid down in the
case of Mohammed Parvez Zulfikar Qureshi Vs. State of
Maharashtra & Ors., 2010 ALL MR (Cri) 574. In the said
case the petitioner was earlier released on furlough and
he surrendered himself to the Prison Authority after
completion of said furlough. It was held that there is
no substance in the apprehension posed in the alleged
adverse police report and consequently rejection of
parole of the petitioner was held not proper. The
impugned order was set aside and the petitioner was

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ordered to be released on parole.

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8.On the other hand, learned APP for the

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respondents submits that there is possibility of
committing serious crime by the petitioner in-case he is
granted parole, as mentioned in the report of the
Assistant Commissioner of Police, Mumbai Division, as
stated in the affidavit-in-reply and thus she has claimed
to dismiss the petition stating that there is no merit in
it.

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9.We have carefully considered the submissions

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made by the learned Counsel appearing for the petitioner
and the learned A.P.P. appearing for the respondents.

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Besides, we have carefully perused the impugned order
passed by the respondent No.1, copy of medical
certificate of mother of the petitioner and the affidavit

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in reply submitted on behalf of the respondents. There
is no dispute that the petitioner is a life convict for
the offence punishable under section 302 of the Indian

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Penal Code as per order dated 18.08.2007. Since
23.10.1998 till the date of subject application for

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parole, he was released on parole only on one occasion in
the year 2013, and he reported to the jail authority one
day after expiry of period of parole. Thus, it is not
the case that when the petitioner was released on parole,
prior to the present application claiming 30 days'
parole, he did not report to the jail authority in time
or there was inordinate delay in reporting to the jail
authority after the period of parole was expired.

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10.The petitioner had claimed 30 day's parole and

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the application in this respect was forwarded to the
respondent No.1 by the respondent No.2 for sanctioning
the same. The said application was rejected by respondent
No.1 by order dated 21.02.2017. The said impugned order
[Exh.”A”] passed by the respondent No.1 shows that
application for parole of the petitioner was rejected
mainly on two grounds. First ground is, that the
possibility of committing serious crime by the petitioner
cannot be denied, if he is granted parole, as the said
possibility is mentioned in the report of the Assistant

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Commissioner of Police, Mumbai Division and second ground

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is, that in the report of the respondent No.2 –

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Superintendent, Central Prison, Aurangabad, said
respondent has not recommended to sanction the parole to
the petitioner. The report/letter of the Assistant
Commissioner of Police, Mumbai Division is not produced
on record by the respondents to show how and on what

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basis the Assistant Commissioner of Police, Mumbai
Division has expressed the possibility of committing
serious crime by the petitioner, in-case he is released
on parole. So also, no independent material is produced
by the respondents to accept their contentions that there

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is possibility of committing serious crime by the
petitioner, in-case of releasing him on parole. On the

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contrary, after release on parole in the year 2013, the
petitioner reported to jail authority only one day after
expiry of the period of parole. This shows that there

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was no inordinate delay on the part of the petitioner in

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reporting to the jail authority after expiry of the
parole. Moreover, it is not the case of the respondents

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( 10 ) crwp665.17

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that when the petitioner was released on parole in the

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year 2013, he committed any offence. Thus, there is
absolutely no evidence to show that there is substance in
the possibility expressed by the respondents that the
petitioner would commit serious crime, in-case he is
released on parole. Similarly, as regards second ground
of rejecting the petitioner's application of releasing

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him on parole, there is no material to show that there is
any base for not recommending the case of the petitioner
to grant parole while forwarding his application for said
leave by respondent No.2 to respondent No.1. There is no
material produced by the respondents to show that since

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when the petitioner is in jail, his behaviour in jail is
not good or that there are complaints against him to the
jail authority by other prisoners or others. Therefore,

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two grounds referred to above on the basis of which the
respondent No.1 has rejected the petitioner's application

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for parole are not sustainable. In-fact, on considering

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the ground of illness of mother of the petitioner as
stated in medical certificate dated 26.09.2016, which

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states that she is suffering from Mereorrhagia (Heavy
bleeding from uterus) i.e. post menopausal uterine
bleeding since three months, issued by Dr.Mahendra Y.
Sawant, the respondent No.1 should have considered the
petitioner's application for parole.

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11.For the reasons discussed above, we hold that
the impugned order passed by respondent No.1 is not
sustainable and the same is liable to be set aside. In
the result, the following order is passed :-

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(i)The writ petition is allowed.

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(ii)The impugned order dated 21.02.2017
passed by respondent No.1, rejecting the
petitioner's application for parole of 30 days
is quashed and set aside.

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(iii)The Respondent No.1-The Divisional
Commissioner, Aurangabad is directed to release
the petitioner on parole for a period of 30
(thirty) days from the day of his furnishing
surety as per the existing rules and regulations
in this respect and on completion of other
procedural formalities, if any.

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( 12 ) crwp665.17

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12.Rule is made absolute in above terms. The writ
petition stands disposed of accordingly. There shall be

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no order as to costs.

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[S.M.GAVHANE,J.] [S.S.SHINDE,J.]

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snk/2017/AUG17/ crwp665.17

Kisan S/O. Soma Rathod (C-8098) v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Kisan S/O. Soma Rathod (C-8098) v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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