Bombay High CourtWP/740/2024partly allowed

Dhiraj Arunrao Shinde v. Divisional Commissioner Amravati, Dist.Amravati And Another

2024-10-14Hon'Ble Shri Justice Vinay Joshi , Hon'Ble Shri Justice Abhay J. Mantri12 pages

2024:BHC-NAG:11612-DB

IN THE HIGH COURT OF JUDICATURE AT BOMBAY :

NAGPUR BENCH : NAGPUR.

CRIMINAL WRIT PETITION NO. 379/2024 with CRIMINAL WRIT PETITION NO.385/2024 with CRIMINAL WRIT PETITION NO.439/2024 with CRIMINAL WRIT PETITION NO.495/2024 with CRIMINAL WRIT PETITION NO.502/2024 with CRIMINAL WRIT PETITION NO.582/2024 with CRIMINAL WRIT PETITION NO.740/2024 with CRIMINAL WRIT PETITION NO.762/2024 with CRIMINAL WRIT PETITION NO.773/2024 with CRIMINAL WRIT PETITION NO.795/2024 with CRIMINAL WRIT PETITION NO.796/2024 with CRIMINAL WRIT PETITION NO.815/2024 with CRIMINAL WRIT PETITION NO.753/2024 ******** CRIMINAL WRIT PETITION NO. 379/2024 Raju @ Mukesh Poonamchand Patel (C-4864), aged about 42 yrs., Occ. NA, R/o. Bagmer, near Ram Mandir, Tah. Pandhana, Dist. Khandwa (M.P.)

Mr. Nikhil Joshi, APP for respondent Nos. 1 & 2. ---------------------------------- CRIMINAL WRIT PETITION NO.385/2024 Nilesh Ganpat Fushe (C-6124) aged about 30 yrs., Occ. NA, R/o. Post Sungaon, Tah. Jalgaon-Jamod, Dist. Buldhana.

Amravati Central Prison, Amravati.

Mr. M. K. Pathan, APP for respondent Nos. 1 & 2. ---------------------------------- CRIMINAL WRIT PETITION NO.439/2024 Golu @ Salim Khan Gaffar Khan Pathan (C-5788) aged about 28 yrs., Occ. NA, R/o. Nehru Nagar, Babhugaon, Tah. Babhugaon, Dist. Yavatmal.

Amravati Central Prison, Amravati.

... RESPONDENT Mr. N. Joshi, APP for respondent/State ---------------------------------- CRIMINAL WRIT PETITION NO.495/2024 Amol Vijay Deshmukh (C-5925), aged about 38 yrs., Occ. NA, R/o. Palshi, Tah. Sengaon, Dist. Hingoli.

Mrs. S. Kolhe, APP for respondent Nos. 1 & 2. ---------------------------- CRIMINAL WRIT PETITION NO.502/2024 Vijay Bhimrao Deshmukh (C-5924) aged about 62 yrs., Occ. NA, R/o. Palshi, Tah, Sengaon, Dist. Hingoli.

Mrs. S. Kolhe, APP for respondent Nos. 1 & 2. -------------------------------------- CRIMINAL WRIT PETITION NO.582/2024 Santosh Janardan Pagrut (C-687), aged about 45 yrs., Occ. NA, R/o. Ghusar, Tah. & Dist. Akola.

Morshi Open Prison, Amravati.

Mrs. S. Kolhe, APP for respondent Nos. 1 & 2. --------------------------------------

CRIMINAL WRIT PETITION NO.740/2024 Dhiraj Arunrao Shinde C-205 (6099) aged about 38 yrs., Occ. NA, R/o. Paratwada, Tah. Achalpur, Dist. Amravati.

Mr. A. Ghogare, APP for respondent Nos. 1 & 2. -------------------------------------- CRIMINAL WRIT PETITION NO.762/2024 Prafulla Baburao Sarode C-872(6068) aged about 46 yrs., Occ. NA, R/o. Manik Chowk, Sindkheda, Dist. Buldhana.

Superintendent of Open Prison, Morshi, Dist. Amravati.

Mrs. N. Tripathi, APP for respondent Nos. 1 & 2. -------------------------------------- CRIMINAL WRIT PETITION NO.773/2024 Rahul Babanrao Bhad (C-5889) aged about 30 yrs., Occ. NA, R/o. Hantoda, Tah. Anjangaon Surji, Dist. Amravati.

Mrs. N. Tripathi, APP for respondent Nos. 1 & 2. -------------------------------------- CRIMINAL WRIT PETITION NO.795/2024 Tushar Kiranrao Maskare (C-5971) aged about 30 yrs., Occ. NA, R/o. Tadni Purna, Chandur Bazar, Dist. Amravati.

Ms. S. Dhote, APP for respondent Nos. 1 & 2. -------------------------------------- CRIMINAL WRIT PETITION NO.796/2024 Dnyaneshwar Gangadhar Bhong (C-918) aged about 45 yrs., Occ. NA, R/o. Kaudgaon, Tah. Basmath, Dist. Hingoli.

Morshi Open Prison, Morshi, Dist. Amravati.

Mr. U. R. Phasate, APP for respondent Nos. 1 & 2. -------------------------------------- CRIMINAL WRIT PETITION NO.815/2024 Sanjay Tulshiram Bawankar (C-4756) aged about 45 yrs., Occ. NA, R/o. P.O. Kawtha Kadu, Tah. Chandur Railway, Dist. Amravati.

Mr. A. Badar, APP for respondent Nos. 1 & 2. -------------------------------------- CRIMINAL WRIT PETITION NO.753/2024 Pradip Mahadeorao Sahare, aged about 35 yrs., R/o.Rajni, Post Dorli (Bhandwalkar), Tah. Narkhed, Dist. Nagpur. C/666, Open Prison, Morshi.

Open Prison, Morshi, Dist. Amravati.

Ms. Sonali B. Khobragade, Advocate for petitioner. Mr. M. K. Pathan, APP for respondent Nos. 1 & 2. -------------------------------------- CORAM : VINAY JOSHI AND ABHAY J. MANTRI JJ.

DATE : 14.10.2024.

ORAL JUDGMENT (PER VINAY JOSHI, J.) :

Heard.

Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel appearing for the parties. 3.

These bath of petition raises a common issue that the convict's parole/ furlough leave has been rejected primly on the ground of amended Rules 19(3)(C)(ii) of the Prisons (Bombay Furlough and Parole) Rules, 1959 ("Rules of 1959"). The said rule postulates that a prisoner shall be eligible for subsequent release on regular parole/furlough only after completion of one and half years of actual imprisonment to be counted from his last return. 4.

Learned counsel appearing for applicant relied on the decision of this Court in case of Amit s/o Gajanan Gandhi Vs. State of Maharashtra in Criminal Writ Petition No.47/2023 decided on 24.01.2023, wherein the said issue has been exclusively dealt in para 7

and 8 of the decision which reads as below:

"7. The only resistance is on account of the rider requiring petitioner to make him self eligible in terms of Rule 19(C) (ii) of the Prison Rules which concededly has not been complied with. Rule 19(C)(ii) has been substituted by notification dated 10.02.2022. Prior to notification, there was a similar proviso under Rule 19(2) making a condition of eligibility for regular parole of staying in Jail for the period of one year after expiry of his last release on emergency or regular parole. The said proviso to Rule 19(2) was subject matter of challenge before the Full Bench of this Court in case of Kantilal Nandlal Jaiswal Vs. Divisional Commissioner, Nagpur, 2019(6) Mh.L.J. 186, wherein the said proviso has been held to be violative to Articles 14 and 21 of the Constitution of India.

8. We find that the newly introduced condition of Rule 19(2) (C)(ii) is having similar flavor which has been already dealt by the Full Bench of this Court. Full Bench in para 34 of the decision has expressed that there is no sense in not entertaining the urge for release earlier in peculiar facts. In case at hand, the petitioner has produced document to show that his wife is about deliver a child tomorrow (25.01.2023) and there is nobody in the family to take care. Considering the peculiar facts of the case, we are inclined to grant regular parole."

Apart, the learned counsel for petitioner would submit that in some of the cases, besides bar of Rule 19(3)(C)(ii) of the Rules of 1959, no other reason is assigned. As against this, the learned APP would submit that since the authority was much swayed by amended Rule 19(3)(C)(ii) of the Rules of 1959, therefore, the other grounds for rejection though discussed, have not been specified.

In view of law laid down by the Full Bench decision in case of Kantilal (supra) and the decision rendered by this Court in case of Amit (supra), the reason about amended Rule 19(3)(C)(ii) of the Rules of 1959 would not survive. The matter remains to scrutinize the application on rest of the grounds, if any including verification of the medical ground and on other general parameters.

In view of above, all petitions are partly allowed. We hereby quash and set aside the impugned orders passed by the authority in all above petitions. The petitioner, if desires, can produce additional documents in support of the cause canvassed for the parole to the Jail Superintendent within one week. On receiving the papers, the authority shall verify the

same, consider the petitioner's eligibility on all parameters and decide those applications afresh within two weeks thereafter. We make it clear that Rule 19(3)(C)(ii) of the Rules of 1959 shall not be ground for rejection, if petition is rejected on said ground, necessary action of contempt would be initiated.

All petitions stand disposed of accordingly.

(ABHAY J. MANTRI J.) (VINAY JOSHI, J.) Gohane Signed by: Mr. J. B. Gohane Designation: PA To Honourable Judge Date: 17/10/2024 11:01:13