1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO. 3163 OF 2009 GOVIND JALBAJI PAWAR .. .. PETITIONER VERSUS THE STATE OF MAHARAHSHTRA .. .. RESPONDENT Mr. Murtaza M. Najmi Advocate (appointed) for the petitioner Smt. U. V. Kejariwal, APP CORAM: SMT. RANJANA DESAI & SMT. MRIDULA BHATKAR,JJ. DATED : 28th January, 2010 P.C. This petition is sent through jail. The petitioner is a life convict. He is lodged in Nashik Road Central Prison. He is aggrieved by the fact that his application for parole has been rejected. 2. We have heard at considerable length Mr. Najmi, learned advocate appointed for the petitioner. Mr. Najmi submitted that the petitioner made 2 application on 13/4/2009. The Superintendent, Nashik Road Central Prison sent a report to the Divisional Commissioner, Nashik on 18/8/09, however, the impugned order is passed on 16/11/09. Mr. Najmi submitted that there is an inordinate delay in passing the order. 3. Mr. Najmi drew our attention to Rule 22(2) of the Prison (Bombay Parole and Furlough Rules 1959 (‘the said Rules”) which states that the District Superintendent of Police concerned or the Commissioner of Police, Bombay, as the case may be, shall immediately make inquiries to ascertain whether the ground or grounds on which parole is applied for is or are genuine and submit immediately his report to the Competent Authority mentioning inter alia whether it recommends the grant of parole and also whether there is likelihood of breach of peace, if the prisoner is released on parole. Mr. Najmi laid stress on the word ‘immediately’ appearing at two places in sub-rule (2) and submitted that the Divisional Commissioner Nashik Region failed to note the need to expeditiously deal with the prisoner’s application for parole at all stages. 4. Learned counsel then drew our attention to the report submitted by DSP Nanded where inter alia it is stated that the petitioner’s wife is not ill and that she does not have to undergo any operation. It is also stated in the police report that the petitioner’s uncle has stated that he is not willing to stand surety 3 for the petitioner. 5. Mr. Najmi pointed out that in the impugned order though the Divisional Commissioner has stated that, if the petitioner is released on parole there is likelihood of breach of peace, he has not applied his mind to the question whether the petitioner’s wife is really ill or whether she requires any operation and whether anybody is prepared to stand surety for the petitioner. The impugned order, therefore, reflects non-application of mind. 6. Learned counsel relied on judgment of the Nagpur Bench of this court in Sahebrao Tukaram Juware (Council) v. State of Maharashtra, 2008 Cri. L. J. 134 where this court has dealt with a somewhat similar fact situation. The application for parole leave was on the ground of serious illness of the petitioner’s son. However, the application was rejected without referring to the grounds of illness of the son of the petitioner. This court set aside the order passed by the prison authority in that case. This court observed that procedure mentioned in Rule 22 of the said Rules is statutory in nature and is required to be followed strictly by the concerned authorities. This court emphasised the need to expeditiously dispose of the applications. This court also observed that orders will have to be passed with proper application of mind. We respectfully agree with this view. 4 7. Mr. Najmi submitted that adverse police reports are stereo type in nature. In almost all police reports it is stated that if the petitioner is released on furlough or parole there is likelihood of breach of peace and there is also possibility of the prisoner taking revenge of the prosecution witnesses. Counsel submitted that the reports are submitted without application of mind. He submitted that it is necessary for the authorities to apply mind and consider whether if the prisoner is released on parole or furlough there is really going to be any breach of peace. The prisoners conduct in the prison will also have to be kept in mind. Counsel also submitted that because of the inordinate delay in disposing of the applications on many occasions the applications become infructuous. 8. We find force in the submission of learned counsel. As observed by this court in Sahebrao’s case, Rule 22 is statutory in nature and must be strictly followed. We have also come across several cases where identical police reports are submitted and they are accepted by the Divisional Commissioner. These police reports are stereo type. 9. Learned APP submitted that number of prisoners have not returned to the prison after availing of furlough or parole facilities. This is also a fact. However, that is no justification for accepting stereo type police reports. The Divisional Commissioner will have to consider individual case on its own 5 merits after going through the prisoner’s record, his conduct and his reason for going on parole, Medical reports must be submitted expeditiously and orders will have also to be passed immediately in terms of Rule 22 of the said Rules. 10. This court has repeatedly observed that the Divisional Commissioner while dealing with the furlough and parole applications should take care and order should be passed after perusing the record and after applying mind to individual cases. However, we find that there is little improvement in the manner in which these applications are dealt with. In this matter, we would have set aside the impugned order dated 29/8/09, however, our attention is drawn by learned APP to the medical certificate issued by Sayyed Clinic. It is dated 2/4/09. The certificate states that the petitioner’s wife is suffering from Anemia . She has been advised rest for six weeks. She has been further advised to get herself examined from a Gynecologist. The certificate does not indicate that the petitioner’s wife needs any operation. Copy of the medical certificate is taken on record and marked ‘X’. 11. In the circumstances, this is not a case where the impugned order can be set aside. Needless to say that if the petitioner’s wife’s health deteriorates or if she really requires any operation, the petitioner can submit fresh medical certificate to that effect and apply for parole at that stage. If such an application is received, we expect the prison authorities to deal with it expeditiously, in 6 accordance with law and with proper application of mind. Petition is rejected. (Smt. Ranjana Desai, J.) (Smt. Mridula Bhatkar, J.)