Criminal Writ Petition No.41 of 1998

18th February, 1998

Petitioner Counsel: Shri S.P. CHAPALGAONKAR
Respondent Counsel: Shri K.B. CHOUDHARY

JUDGMENT

BARDE, J.:- Heard Shri S.P. Chapalgaonkar, learned counsel for the petitioner and Shri K.B. Choudhary, learned A.P.P. for the respondents. Rule. By consent of the parties, Rule made returnable forthwith.

2. The petitioner who is 81 years of age, has filed this petition for parole. The Petitioner had applied for parole to the authorities in the month of July 1997 on the ground that he has to attend his old and ailing wife who was seriously ill. The Divisional Commissioner, Aurangabad, rejected the said application for parole in August 1997. The copy of the said order was not handed over to the petitioner. The petitioner thereafter filed Criminal Writ Petition No.425 of 1997, challenging the order of rejection of parole passed by the Divisional Commissioner, Aurangabad. In the said matter, as per the order dated 3.11.1997, this Court directed that if any appeal is filed by the petitioner before the State Government against the order of rejection of parole that be decided within 15 days and the said writ petition was disposed of.

3. It appears that the petitioner had not filed any appeal against the order of rejection of parole and the petitioner was not made aware that any matter regarding the grant of parole was considered by the State Government after the rejection of parole by the Divisional Commissioner.

4. The petitioner has contended that his wife is seriously ill and day by day her health is deteriorating. She is old and in such circumstances, he be released on parole for a period of 30 days.

5. The learned A.P.P. has filed on record the communication received from the Superintendent, Central Jail, Aurangabad. The learned A.P.P. has pointed out that even when the petitioner had not filed any appeal against the order of rejection of parole, the matter was considered by the Deputy Secretary, Home Department and the parole was rejected. It appears that the parole was rejected on two grounds; firstly that the petitioner has not completed the imprisonment of one year before asking for parole; and secondly on the ground that there was adverse report of the Superintendent of Police, against the petitioner.

6. The petitioner was convicted in Sessions Case No.62 of 1982 by the Additional Sessions Judge, Parbhani and the petitioner filed Appeal No.133 of 1983. That appeal was dismissed on 28.4.1988. Thereafter the appeal was filed before the Supreme Court and the petitioner was released on bail as per the orders of the Supreme Court on 4.5.1989. Ultimately, the appeal filed by the petitioner was rejected by the Supreme Court and the petitioner surrendered before the jail authorities on 6.4.1997.

7. It appears that the authorities have taken the view that since the petitioner surrendered on 6.4.1997 he had not completed the period of one year when he applied for parole and, therefore, he was not entitled to parole. It is really regrettable situation that the authorities have not taken into consideration the most important circumstance that the petitioner was in jail at least from 24.8.1983 when the Sessions Court convicted and sentenced the petitioner until 4.5.1989 when the Supreme Court released the petitioner on bail. This period of imprisonment cannot be ignored for any purpose. This matter was made clear by this Court, no doubt, while considering the application for furlough in Criminal Writ Petition No.442 of 1997. When it is very clear that the petitioner had undergone the imprisonment for nearly four years for the same offence for which he is undergoing the imprisonment, that period ought to have been taken into consideration by the concerned authorities.

8. The parole is granted as per Rules, Prison (Bombay Furlough and Parole) Rules, 1959. Rule 18 and 19 are the basic Rules for consideration of Parole. Rule 18 makes clear as to who should pass the orders regarding parole and Rule 19 provides for grounds on which parole can be granted. In these Rules, it is no where mentioned that prisoner must have undergone at least one year's imprisonment before asking for parole. The grounds on which parole is to be granted, are so clear in Rule 19 that no such condition of fixed period of imprisonment can be imposed because all these grounds are beyond the control of any individual and when such grounds are there, then only parole is to be granted and therefore wisely in Rules 18 and 19 it is not mentioned that prisoner must have undergone the imprisonment for the fixed period before considering his application for parole. However, neither the Divisional Commissioner, Aurangabad nor the Deputy Secretary, Home Department of the State of Maharashtra has applied mind before rejecting the application for parole on the ground that the prisoner has not completed the period of imprisonment of one year. This by itself is sufficient for us to interfere in the order passed by the Deputy Secretary, Home Department, State of Maharashtra, rejecting the application for parole.

9. The documents which are submitted by the learned A.P.P. only mention that there was adverse report of the Superintendent of Police and, therefore, the application for parole was rejected. What were the grounds for giving adverse report are not coming before this Court. It has to be noted that Sessions Case was of the year 1982. So the alleged offence had taken more than 16 years ago. The petitioner himself is 80 years of age. It is very difficult to believe that in such an old age, he would be cause of any breach of public peace or tranquility or is likely to commit any offence, for the authorities to be afraid of him to release him for a short period of one month that too, to attend his ailing wife. Here again, it appears that just to find out a ground to reject the application for parole, the authorities are hiding behind the report of the Superintendent of Police without ascertaining that how the person of 80 years of age would be able to cause breach of peace, that is the only ground under sub-rule (2) of Rule 22 of the Rules, on which the parole can be rejected. This is a clear case of non-application of mind. Hence, Writ Petition is allowed. The petitioner be released on parole for a period of 30 days from the date of release on his furnishing P.R. Bond of Rs.3000/-.

Rule made absolute.

Petition allowed.