1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.934 OF 2010 Shaikh Abbas S/o.Shaikh Sandu, Age-Major, Convict No.C-6476, At present in Central Prison, Harsul, Aurangabad. PETITIONER VERSUS 1. The State of Maharashtra, Through it's Secretary, Home Department, Mantralaya, Mumbai-32 2. The Divisional Commissioner, Aurangabad Division, Aurangabad, 3. The Superintendent of Police, Aurangabad (Rural) 4. The Superintendent of Central Prison, Aurangabad RESPONDENTS Ms.Anita A.Gadekar, learned counsel for the petitioner (Appointed) Mr.B.V.Wagh, learned A.P.P. for respondents. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 15/11/2010 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 2 admission. 2. A communication sent by the petitioner through jail, challenging the impugned order dated 31/08/2010, by which his application came to be rejected, was registered as Criminal Writ Petition. We had accordingly appointed Ms.Anita Gadekar, as a learned counsel to represent the petitioner in this petition before us. 3. It appears that the petitioner was convicted in the year 1991, and till 2006, was on bail. The wife of the petitioner is suffering from severe Anemia with per vaginal bleeding with white discharge i.e. P.I.D. The Medical Officer has advised that she be referred to Government Medical College, Gynecology Department, as she may need operation and proper hospitalization with blood transfusion. The petitioner, on the basis of the said certificate, applied to the authorities, seeking his release on parole. By virtue of the impugned order, the Divisional Commissioner, Aurangabad rejected the application of the petitioner on the twin grounds, (1) that the petitioner, if released on parole, was likely to commit breach of peace, and (2) the brother of the petitioner was available for looking after the welfare of the wife of the petitioner. The Authorities also came to the conclusion that the wife of the petitioner was suffering from some ailment of the abdomen and no date for surgical intervention was fixed. 4. Learned counsel for the petitioner, who has ably argued this 3 petition, has urged before us that the petitioner was on bail till 2006 and the affidavit in reply filed on behalf of the respondents, does not disclose that the petitioner had, at any point of time, threatened either the prosecution witnesses or the complainant or had committed any breach of peace. In such circumstances, therefore, it is urged before us that the petitioner was on bail till 2006 and the affidavit in reply filed on behalf of the respondents does not disclose that the petitioner had at any point of time threatened either the prosecution witnesses or the complainant or had committed any breach of peace. In such circumstances, therefore, it is urged before us that the aforesaid grounds i.e. that if the petitioner is released on parole, he is likely to commit breach of peace, is a figment of imagination of the authorities. It is also urged before us by the learned counsel for the petitioner that the wife of the petitioner is suffering from a serious ailment i.e. per vaginal bleeding with white discharge and has been advised surgery. In such circumstances, the wife of the petitioner can be said to be suffering from the serious ailment, entitling the petitioner to apply for his release on parole. The learned APP has supported the order of the Divisional Commissioner rejecting the application of the petitioner for his release on parole. 5. In that light of the fact that the petitioner was on bail till 2006, and there are no instances of the petitioner threatening the prosecution witnesses, or committing any breach of peace, according to us, the apprehension of the respondents that the petitioner was 4 likely to commit breach of peace, is an apprehension which is not based on any factual data. The aforesaid reason, therefore, according to us, can not be used as a ground for rejecting the application of the petitioner. In respect of the second ground, we find that the wife of the petitioner is indeed suffering from a serious ailment. The certificate discloses that she was suffering from per vaginal bleeding with white discharge and has been advised proper treatment at the Government Medical Hospital, which would include surgical intervention also. In such circumstances, the brother of the petitioner would not be in a position to look after the wife of the petitioner. For the aforesaid reasons, according to us, the application of the petitioner ought to have been allowed. 6. Accordingly, this writ petition succeeds and the impugned order is hereby quashed and set aside and the petitioner is directed to be released on parole for the period, for which he had applied for on such terms and conditions which the authorities may deem fit and proper. 7. Rule is thus made absolute on the above terms with no order as to costs. However, we quantify the fees payable to the learned counsel appointed for the petitioner at Rs.1,500/-. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/NOV. 2010/cri.w.p.934-10