wp895.11 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 895 OF 2011 Hemant s/o Mhasu Aware Age 30 years, Occ. Nil, R/o. Prisoner No.4222, Presently in Paithan Open Jail, Paithan, Tq. Paithan District Aurangabad ...Petitioner Versus 1) The State of Maharashtra 2) The Divisional Commissioner, Aurangabad 3) The Superintendent of Open Jail, Paithan. (Copy for all the respondents to be served on P.P. In the High Court of Judicature of Bombay, Bench at Aurangabad) ...Respondents ..... Mr. H.V. Tungar, advocate for the petitioner (appointed) Smt. S. D. Shelke, APP. for respondents ..... CORAM : S. B. DESHMUKH AND A.M. THIPSAY, JJ. DATE OF RESERVING THE JUDGMENT : 05.12.2011 DATE OF PRONOUNCING THE JUDGMENT : 12.12.2011 wp895.11 -2- JUDGMENT (PER A.M. THIPSAY, J.) :- 1. Rule. Rule made returnable forthwith. The learned APP waives service. By consent, heard forthwith. 2. This petition, under Article 226 of the Constitution, arises on the basis of a letter sent by the petitioner above named from Prison, raising a grievance regarding the order dated 02.09.2011 passed by the Divisional Commissioner, Aurangabad, refusing to grant parole leave, to the petitioner. 3. On 19.10.2011, this court appointed Mr. H.V. Tungar, advocate, to act for the petitioner. Mr. Tungar, advocate, has thereafter prepared this petition in proper form and has filed the same. 4. The petitioner has been convicted of the offence punishable under Section 302 of I.P.C. and has been sentenced to suffer life imprisonment. He is at present lodged in the open jail at Paithan. The petitioner has served the sentence, so far, for a period of 12 years. 5. The petitioner had previously made an application to the respondent No.2 – who is the competent authority in that regard - seeking release on parole leave, on the ground of illness of his mother. The said application was rejected by the respondent No.2 on wp895.11 -3- 18.12.2010. The petitioner had challenged the said order by filing criminal writ petition No. 438 of 2011 in this Court. This court dismissed the said writ petition on 4.7.2011. This Court, however, granted liberty to the petitioner to apply afresh for his release on parole after supporting the claim of illness of his mother (on which ground the parole leave was sought), by medical certificate. 6. On 27.7.2011, pursuant to the said order, the petitioner made a fresh application for his release on parole. This time, the petitioner annexed the medical certificate in respect of illness of his mother, to his application. The respondent No.2 rejected the said application on 2.9.2011. The petitioner, by the present petition, is challenging the said order dated 2.9.2011, passed by the respondent No.2. 7. We have gone through the petition and the annexures thereto. We have heard Mr. Tungar, learned advocate (appointed) for the petitioner and Smt. S.D. Shelke, learned APP for the respondents. 8. It is contended by Mr. Tungar, learned advocate for the petitioner, that the impugned order passed by the respondent No.2 is bad in law and that it has been passed without taking all the relevant circumstances into consideration. wp895.11 -4- 9. We have gone through the impugned order, a copy of which has been annexed to the writ petition. 10. The reasoning of the respondent No.2 is reflected in paras 3 and 4 of the impugned order. In para 3, the respondent No.2 has reproduced the contents of the police report, in which a remark that ‘the petitioner should not be released on parole leave’ has been made by the Commissioner of Police, Nashik. The reasoning of the respondent No.2 which is found in para 4 of the impugned order, may be reproduced here : “4. lcc iksyhl vgokykpk fopkj djrk lnj dSnh ;kaph vfHkopu jtk ukeatwj dj.ks ;ksX; gksbZy- dfjrk lnj dSnh ;kaph vfHkopu jtk eatwj dj.ks la;qfDrd gks.kkj ukgh-” The English translation of this would be : “Thus, on consideration of the police report, it would be proper to refuse parole leave to the prisoner. Therefore, it would not be proper to grant parole leave to the prisoner”. 11. A reading of the order passed by the respondent No.2, gives a clear impression that the respondent No.2 has based his decision only on the police report. The order does not indicate that the respondent wp895.11 -5- No.2 has applied his mind to all the relevant aspects of the matter, of which the remark or the opinion of the police was only one. 12. A perusal of the report submitted by the police mentions that the objection to release the prisoner on parole leave was on the ground No.2 and the ground No.4, as mentioned in the said report, which are as follows : “2- canh dz-4222 gsear Eglq vkokjs ;kus fnysyk tkehunkj ;kps ukR;kus esOgqus vlwu rs ukf’kd euik e/;s fcxkjh dkekl vlwu rs jtsP;k dkGkr can;koj y{k Bsow ‘kdrhy vls vkEgkl okVr ukgh- 3- ---------------------------------------------- 4- vkxkeh euik fuoM.kwd rlsp fn-31@7@2011 iklwu Jko.k efgU;kl o fnukad 02@08@2011 iklwu jetku iokZl izkjaHk >kysyk vkgs- fn-31@08@2011 jetku bZn fnukad 01@09@2011 rs 11@09@2011 ikosrks x.ks’kksRlo o uojk=ksRlo vls l.k @ mRlo lktjs gks.kkj vkgsr- dk;nk o lqO;oLFksP;k n`”Vhus cankscLrkr iksyhl iz’kklu O;Lr jkg.kkj vkgs- v’kkrp [kqUkkP;k xqUg;kr f’k{kk ykxysY;k dSn;kl 30 iWjksy jtsoj lksMY;kl R;kpsdMwu n[kyik= @ vn[kyik= xqUgk ?kMqwu ‘kkarrspk Hkax gks.;kph ‘kD;rk ukdkjrk ;sr ukgh-“ Thus, the police have objected to the release of the petitioner on parole only on the grounds; firstly, ‘that the police do not think that the wp895.11 -6- surety would be able to keep a proper watch over the prisoner’, and secondly, ‘due to the festivals falling within the relevant period, the release of the a prisoner, who had been convicted of murder, would create possibilities of commission of some cognizable or non cognizable offence by him, resulting into breach of peace’. 13. We find that as per the police report the reason given by the petitioner for his release on parole leave viz. sickness of his mother is true. 14. Mr. Tungar has drawn our attention to the circular/notification No. MIS-4501/1346/491/PRS-3 dated 25.10.2001 issued by the respondent No.2, a copy of which has been annexed to the petition at Exhibit “D”. It reflects the observations made by the respondent No.1 – the State of Maharashtra - that ‘instances were noticed where parole leave was refused to the prisoners only on the basis of the adverse police report.’ This circular/notification points out that the competent authority is expected to apply its own independent mind and then come to the conclusion regarding grant or rejection of parole leave. It is specifically mentioned therein that even if the police report would be adverse to the prisoner, the competent authority should apply its own mind and take a decision, taking in consideration various decisions given by the courts from time to time . wp895.11 -7- 15. It appears to us, that in the present case, the respondent No.2, who is the competent authority, has failed to apply his mind to the issue involved and has based his conclusion only on the adverse report of the police. It also appears that he did not take into consideration several other relevant aspects of the matter such as the previous history and conduct of the petitioner, etc. Since the order suffers from non application of mind and also from failure to take into consideration all the relevant aspects, it cannot be termed as proper or in accordance with law. 16. We are therefore, inclined to set aside the impugned order and remand the matter back to the competent authority to consider the application of the petitioner for parole leave afresh, by taking into consideration all relevant aspects of the matter and in consonance with the guidelines provided for by the respondent No.1 in the Circular/ Notification No. MIS-4501/1346/491/PRS-3 dated 25.10.2001. 17. The competent authority shall decide the application within a period of eight weeks from today. 18. The petition is partly allowed in the aforesaid terms and to the aforesaid extent. wp895.11 -8- 19. Rule is made absolute accordingly. 20. A copy of this judgment be served upon to the petitioner in prison, and compliance be reported by the concerned Prison authority. 21. We quantify the fees payable to the learned advocate appointed for the petitioner, at Rs.1,500/-. *****