1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.48 OF 2010 Santosh Dattaray Taak, Convict No.6782, Central Prison, Aurangabad R/o Sainagar Chand Colony, Nanded .. PETITIONER VERSUS 1. The State of Maharashtra through the Secretary, Home Department, Mantralaya, Mumbai 2. The Divisional Commissioner, Aurangabad 3. The Superintendent of Police, Nanded 4. The Superintendent of Central Prison, Aurangabad .. RESPONDENTS Shri A.D.Rajput, Advocate (appointed) for the petitioner Shri S.D.Kaldate, Assistant Public Prosecutor for respondents CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE : 3rd February, 2010 ORAL JUDGMENT (PER SHRIHARI P.DAVARE, 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 2. The subject matter of the present petition is the challenge to the order dated 30.10.2009 passed by the Divisional Commissioner, Aurangabad rejecting the application for parole preferred by the petitioner herein and the petitioner herein prays for quashing the said order. 3. The petitioner herein came to be arrested under C.R.No. 52/2006 on 22.4.2006 for offence punishable under Section 302 of the Indian Penal Code. Accordingly, the learned Additional Sessions Judge, Gangakhed convicted the petitioner for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life by judgment and order rendered on 7.10.2008. Being aggrieved and dis- satisfied by the said judgment and order, the petitioner preferred Criminal Appeal No.714 of 2008 before this Court and the same has been admitted on 11.12.2008 and is pending. 4. During the pendency of the said appeal, the petitioner herein while undergoing the imprisonment for life preferred an application on 28.8.2009 for grant of 30 days parole leave on the ground that his wife namely Rekha is suffering from spinal cord ailment and she was advised by the doctor to undergo Hysterectomy surgery and the petitioner had also annexed the medical certificate dated 26.5.2009 along with the said 3 application. The Superintendent, Central Prison, Aurangabad forwarded the said application to Superintendent of Police, Nanded for his report in respect of the said application of the petitioner. Accordingly, the Superintendent of Police, Nanded submitted his report to Divisional Commissioner, Aurangabad on 8.10.2009, which was adverse to the petitioner. Basing upon the said Police report dated 8.10.2009, the Divisional Commissioner, Aurangabad passed an order on 30.10.2009 and rejected the petitioner’s application for parole leave which is under challenge in the present petition. 5. The learned Counsel for the petitioner submitted that the Police report dated 8.10.2009 which was adverse to the petitioner reflected four grounds, basing upon the same the Divisional Commissioner, Aurangabad rejected the petitioner’s application for parole which are as under : (i) The apprehension was posed that if the petitioner was released on parole, there was every possibility of danger to the lives of complainant, witnesses and his relatives; (ii) The apprehension was posed that there would be breach of public piece and tranquility as Loksabha elections were going on at the relevant time; 4 (iii) It was apprehended that although petitioner’s father Dattatray Maroti Taak is ready to give surety, his father may not be able to control him; and (iv) Petitioner is having habit of housebreaking, dacoity and he has a nature of absconding and, therefore, he would not surrender in time in prison. 6. As regards the said apprehensions, the learned Counsel for the petitioner has urged before us that the respondents have not produced any objective material to support the aforesaid apprehensions. It is also canvased by learned Counsel for the petitioner that no statements of the complainant and/or witnesses have been recorded and no statements have been produced to substantiate the apprehension of alleged threat etc. According to the learned Counsel for the petitioner, no other offence has been registered against the petitioner except the offence for which he is undergoing the imprisonment. It is further submitted that the Loksabha elections have been over and there is no substance in the said apprehension now. Accordingly, the learned Counsel for the petitioner submitted that the apprehensions posed by the respondents bear no substance and same are devoid of merits and, therefore, the petitioner is entitled to be released on parole leave to enable him to attend his wife’s surgery. 5 7. The respondents opposed the present application vehemently and filed affidavit-in-reply which is sworn in by Mr.Natha S/o Shankar Pardhi, working as Tahsildar in the office of the Divisional Commissioner, Aurangabad and submitted that after receipt of the application from the petitioner for parole, it was forwarded to the Superintendent of Police, Nanded who gave adverse Police report and basing upon the said Police report, the Divisional Commissioner, Aurangabad has passed the impugned order dated 30.10.2009 and rejected the application of the petitioner for parole and accordingly, the respondents supported the same and submitted that the Divisional Commissioner, Aurangabad has rightly rejected the application filed by the petitioner. 8. We have heard the submissions advanced by the learned Counsel for the petitioner as well as learned Assistant Public Prosecutor for the respondents and it is the matter of record that the respondents have not produced any objective material to support the alleged apprehensions expressed in the Police report nor any statements of the complainant/witnesses have been filed on record. Moreover, it is also pertinent to note that no other offence has been registered against the petitioner except the offence for which he is undergoing the imprisonment. Hence, we are of the considered view that present petition is required to be 6 allowed which would sub-serve the interest of justice to enable the petitioner to attend his wife’s surgery, quashing the impugned order dated 30.10.2009. However, simultaneously we are inclined to grant liberty to the respondents-authorities to impose necessary conditions upon the petitioner while granting the parole leave to the petitioner. 9. In the result, present Criminal Writ Petition No.48 of 2010 is allowed and the impugned order dated 30.10.2009 passed by Divisional Commissioner, Aurangabad stands quashed and set aside and it is directed that the petitioner be released on parole leave as per rules and regulations, in accordance with law. However, the respondents shall be at liberty to impose suitable conditions upon the petitioner while granting him the parole leave. We quantify the fees payable to the learned Counsel appointed on behalf of the petitioner at Rs.2,000/- (Rs.Two thousand). 10. Rule is thus made absolute on the above terms with no orders as to costs. ( SHRIHARI P.DAVARE ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/48.10criwp) 7