1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.928 OF 2010 Dheeraj Shantilal Khakordiya PETITIONER VERSUS The State of Maharashtra RESPONDENT Mr.S.S.Bora, learned counsel for the petitioner (Appointed) Mr.D.R.Kale, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 30/11/2010 ORAL JUDGMENT : (Per P.V.Hardas, J.) 1. Rule. Rule returnable forthwith. With the consent of learned counsel for the parties, this petition is heard finally at the stage of admission. 2. A communication sent by the petitioner through jail, challenging the rejection of his application, seeking his release on parole, is the subject matter of challenge in the said communication. We had accordingly appointed Adv.Shri.S.S.Bora, learned counsel to represent the petitioner in this petition before us. 3. The petitioner challenges the order dated 12/08/2010, rejecting 2 the application of the petitioner, seeking his release on parole on the ground that the petitioner had not produced the medical certificate in respect of the ailment of his mother. The petitioner had applied for his release on parole by his application dated 12/05/2010 contending therein that on account of the ailment of his mother, parole be granted to him. The petitioner had stated that his mother was suffering from ailment of the spinal cord, and surgical intervention is necessary. The application was referred to the police for submitting their report and it appears that the report dated 16/07/2010 came to be submitted by the Supdt.of Police, Aurangabad, pointing out therein that the Police Inspector of Thane City Chowk Police Station had inquired and had submitted a report that the mother of the petitioner by name Kalibai Shantilal Khakordiya was suffering from the ailment of Spinal Cord and surgical intervention may be necessary. It appears that the same medical certificate had been produced before the Police Inspector of Thane City Chowk Police Station. The Divisional Commissioner, while rejecting the application of the petitioner, pointed out that since the medical certificate had not been annexed by the petitioner alongwith his application, he was unable to come to a subjective satisfaction in respect of the seriousness of the ailment of the petitioner's mother. 4. Shri.Bora, learned counsel for the petitioner has urged before us that the Divisional Commissioner ought to have relied upon the police report and ought to have granted parole to the petitioner. We are unable to agree with the aforesaid submissions. The Divisional 3 Commissioner is independently required to arrive at a subjective satisfaction in respect of the seriousness or the gravity of the ailment. To rely upon the police report mechanically, would render the order to be a mechanical order without application of mind. Since the petitioner had earlier produced a certificate before the Police Inspector of City Chowk Police Station, we see no reason as to why the said medical certificate would not have been produced by the petitioner. The production of the medical certificate in the present case therefore would be essential and on the basis of which the Divisional Commissioner would be arriving at the subjective satisfaction in respect of the gravity/seriousness of the ailment of the mother of the petitioner. This is not a case that there are no other persons in the family of the petitioner, and therefore the petitioner can not contend that he is unable to produce the medical certificate. The report of the Supdt. of Police clearly indicates that apart from the mother of the petitioner, father of the petitioner and his wife are also present in the house. 5. According to us, an opportunity needs to be given to the petitioner for placing the medical certificate of his mother on record. We, accordingly, partly allow this petition and quash and set aside the impugned order and permit the petitioner to produce the medical certificate within 3 weeks from today, and further direct the Divisional Commissioner to decide the application of the petitioner afresh in accordance with Law within the period of 2 weeks of production of the medical certificate by the petitioner. 4 6. Rule is thus made absolute on the terms indicated above as no order as to costs. We quantify the fees payable to the learned counsel appointed on behalf of the petitioner at Rs.1,500/-. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/NOV. 2010/cri-w-p-928-10