Allowed

Amit S/O Gajanan Gandhi v. State of Mah. Thr. the Superintendent of Prison Central Prison Nagpur

Bombay HC24 Jan 2023WP/47/2023

Case brief

AI extract

What is this about?

The High Court allowed a criminal writ petition seeking regular parole for a convict awaiting the delivery of his wife. Although the petitioner had not met the timeframe eligibility under the Prison Rules, the Court granted a 30-day parole due to the urgent medical necessity and lack of caretakers in the family.

What did the court decide?

Quashed the rejection order dated 01.12.2022. Granted regular parole for 30 days subject to terms imposed by the Prisoner Authority.

Amit S/O Gajanan Gandhi Vs State of Mah. Thr… — Pension and Retirement Benefits | Bombay HC (2023)

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

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CRIMINAL WRIT PETITION NO. 47/2023

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Amit s/o. Gajanan Gandhi,
aged 38 years (In Jail).,
Convict No. C-5876,
Central Prison, Nagpur.

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 PETITIONER

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VERSUS

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State of Maharashtra trough
the Superintendent of Prison,
Central Prison, Nagpur.

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RESPONDENT

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Mr. Nitesh Samundre, Advocate for petitioner.
Mrs. N. Tripati, APP for respondent/State.

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CORAM : VINAY JOSHI AND
 VALMIKI SA MENEZES JJ.
 DATE OF JUDGMENT ON: 24.01.2023

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ORAL JUDGMENT (PER VINAY JOSHI, J. )

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Rule. Rule made returnable forthwith.

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2. Heard finally by consent of learned counsel appearing for

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the parties.

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3.The petitioner has been convicted in Sessions Case

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No. 348/2001 for the offence punishable under Sections 302, 376, 364,

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201 of the Indian Penal Code. The maximum sentence imposed is to
undergo imprisonment for life. It has been submitted that after
categorization, the petitioner was to undergo 28 years of imprisonment.
4.The petitioner is seeking regular parole in terms of Rule
19(3) of the Prisons (Bombay Furlough and Parole) Rules, 1959 (‘Prison
Rules’) for the purpose of delivery of his wife. Initially, Divisional
Commissioner, Nagpur Division, Nagpur has allowed parole application
vide order dated 12.10.2022, however the same authority has reviewed
its own order and rejected the same on 01.12.2022. The petitioner has
initially challenged the impugned rejection order dated 01.12.2022 in
Criminal Writ Petition No. 902/2022. This Court has expressed that the
petitioner was already on furlough leave and unless he surrenders
himself, his urge cannot be considered. This Court has also directed the
petitioner to surrender on or before 13.01.2023 with liberty to make
fresh request on his surrender. In pursuance of that, the petitioner has
come up before us after surrender.

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5.It reveals that authority has rejected petitioner’s application
for regular parole on the ground that the petitioner has not surrendered
after furlough leave, therefore, application cannot be considered in
terms of Rule 19(3)(C)(ii) of the Prisons Rules. The said Rule
contemplates that the prisoner shall be eligible for subsequent release on
regular parole, only after completion of one and half year of actual
imprisonment to be counted from his last return either from furlough or

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regular parole.

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6.Admittedly, when the application was made as well as the
petitioner has applied to this Court, he was on furlough leave. meaning
thereby, he does not fit himself in the above criteria. In pursuance of
direction of this Court, the petitioner has surrendered at Central Prison,
Nagpur on 13.01.2023 and thereafter, has renewed his prayer. The
petitioner has produced several medical papers to substantiate the
causes that he is expecting a child. Particularly, our attention has been
invited to the medical papers that probably tomorrow (25.01.2023) is a
date of delivery of his wife. It is contended that there is nobody to look
after the petitioner’s wife in such condition. It is informed that already
petitioner’s wife has been admitted at the Government Medical College
and Hospital, Nagpur for the said purpose. There is no denial of facts
about cause canvased for rejecting parole.

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7.The only resistance is on account of the rider requiring
petitioner to make him self eligible in terms of Rule 19(C)(ii) of the
Prison Rules which concededly has not been complied with. Rule 19(C)
(ii) has been substituted by notification dated 10.02.2022. Prior to
notification, there was a similar proviso under Rule 19(2) making a
condition of eligibility for regular parole of staying in Jail for the period
of one year after expiry of his last release on emergency or regular
parole. The said proviso to Rule 19(2) was subject matter of challenge
before the Full Bench of this Court in case of Kantilal Nandlal Jaiswal

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Vs. Divisional Commissioner, Nagpur, 2019(6) Mh.L.J. 186, wherein the
said proviso has been held to be violative to Articles 14 and 21 of the
Constitution of India.

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8.We find that the newly introduced condition of Rule 19(2)
(C)(ii) is having similar flavor which has been already dealt by the Full
Bench of this Court. Full Bench in para 34 of the decision has expressed
that there is no sense in not entertaining the urge for release earlier in
peculiar facts. In case at hand, the petitioner has produced document to

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show that his wife is about deliver a child tomorrow (25.01.2023) and
there is nobody in the family to take care. Considering the peculiar
facts of the case, we are inclined to grant regular parole.

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9.In view of above, petition is allowed. Impugned order
dated 01.12.2022 is hereby quashed and set aside. We hold that the
petitioner is entitled for regular parole for 30 days on usual terms and
conditions which may be imposed by the Prisoner Authority as it deems
fit and proper.

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10. Petition stands disposed of in above terms.

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11.Act on steno copy.

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(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)

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JITENDRA BHARAT GOHANE

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Gohane

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Digitally signed by JITENDRA BHARAT GOHANE Date: 2023.01.24 19:14:45 +0530

Amit S/O Gajanan Gandhi v. State of Mah. Thr. the Superintendent of Prison Central Prison Nagpur

Case brief

What is this about?

What did the court decide?

Amit S/O Gajanan Gandhi v. State of Mah. Thr. the Superintendent of Prison Central Prison Nagpur

Case brief

What is this about?

What did the court decide?

What the court decided

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