1 crWP 414/2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.414 OF 2009 * Dinkar S/o Manoharrao Banate Age 42 years Occu. : Nil, R/o Shirur (Anantpal), Taluka Shirur (Anantpal) District Latur (At present in Open Prison at Paithan, Taluka Paithan District Aurangabad) Prisoner No.3890. ... Petitioner. Versus 1) The State of Maharashtra Through Home Department, Mantralaya, Mumbai – 32. 2) The Divisional Commissioner, Aurangabad Division, Aurangabad. 3) The Superintendent of Prison Open Prison Paithan, Taluka Paithan, District Aurangabad. ... Respondents. -------- Shri. Netaji G. Kale, Advocate for the petitioner. Smt. R.R. Mane, Additional Public Prosecutor, for the State. -------- 2 crWP 414/2009 CORAM: NARESH H PATIL & SHRIHARI P DAVARE,JJ. DATE: 29th JULY 2009 ORAL JUDGMENT : (Pert Naresh H Patil, J.):-- 1) Heard. 2) Rule made returnable forthwith and taken up for final disposal. 3) The petitioner, a life convict, was released by an order dated 11-4-2008 passed by the Divisional Commissioner, Aurangabad for 30 days. He was released on 21-5-2008 according to the counsel appearing before us. The petitioner ought to have surrendered to the jail authorities on 21st June 2008. He applied for extension of leave on 5-6-2008. According to the reply filed we find that the office of the Superintendent of Police by Fax message dated 17-6-2008 communicated to the Divisional Commissioner stating therein that the reason put up by the petitioner for extension of leave was correct as his wife was ill. This report was received by the 3 crWP 414/2009 office of the Divisional Commissioner on 17-6-2008 and copy was forwarded to the Superintendent of Open Jail Paithan. 4) By an order dated 30-6-2008 the Divisional Commissioner rejected the petitioner’s request to grant ex-post facto sanction to his leave application. In the meanwhile the petitioner surrendered to the jail authorities on 25-7-2008 i.e. after more than 34 days than the earlier date of surrender i.e. 20th June 2008. 5) The petitioner challenges the order, Exhibit B, passed by the Divisional Commissioner. In other wards, he seeks condonation of his late surrender by allowing his application for extension of his surrender leave. 6) Affidavit-in-reply was filed by Mr. Natha Pardhi, Tahsildar in the office of the Divisional Commissioner. The deponent in para 5 of the reply categorically stated that the report filed by the office of the Superintendent of Police was received in the office of the Divisional Commissioner on 17-6-2006 which was, 4 crWP 414/2009 according to the deponent in favour of the petitioner. Perusal of the impugned order passed by the Divisional Commissioner does not show any reference to the Fax message received from the office of the Superintendent of Police dated 17-6-2008. The petitioner’s application was rejected on the sole ground that ex-post facto sanction could not be granted to such surrender which is beyond the initial permissible time. 7) The petitioner’s counsel made a grievance regarding some erasion occurring in the date of order passed by the Divisional Commissioner, which is apparent. The order passed by the Divisional Commissioner, according to the counsel, suffers from non application of mind as all the facts and circumstances of the case are not taken into consideration. 8) The learned Additional Public Prospector has supported the order passed by the Commissioner. The APP has placed reliance on the reply filed and states that the petitioner is not entitled to assume that as the office of the 5 crWP 414/2009 Superintendent of Police forwarded a favourable report in the office of the Commissioner the Commissioner in all probabilities would allow his application for extension of leave. The jail discipline and law, according to the APP, will have to be strictly followed and the petitioner was not entitled to assume that his application would be allowed by the Divisional Commissioner. 9) In the facts of the case we are of the opinion that the Divisional Commissioner shall pass a fresh reasoned order on the issue concerned. While passing the order the Divisional Commissioner shall take into consideration as to whether the fax message dated 17-6-2008 issued by the office of the Superintendent of Police was received by the office of the Divisional Commissioner. And if it was received whether it was placed before the Divisional Commissioner and if not placed then the responsibility shall be fixed on the officer concerned. Taking into consideration the report filed, the certificate of illness of the wife of 6 crWP 414/2009 the petitioner, the antecedents of the petitioner and conduct as a convict, the Divisional Commissioner shall pass reasoned order on its own merits and in accordance with law. 10) The impugned order passed by the Divisional Commissioner Aurangabad, Exhibit “B” to this writ petition, is quashed and set aside. The Divisional Commissioner shall pass a fresh reasoned order on its own merits within four weeks from the date of receipt of this order and communicate the same to the petitioner through jail authorities. 11) Rule is made absolute to the above extent. (SHRIHARI P. DAVARE, J.) (NARESH H PATIL, J.) rsl/ crwp.414.09