Bombay High Court
Manmeetsingh Surendrasingh Digwa (In ... vs Divisional Commissioner Nagpur ... on 7 February, 2018
Author: Vasanti A Naik
Bench: Vasanti A Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 65 OF 2018
PETITIONER :- Manmeetsingh Surendrasingh Digwa,
aged about adult,
R/o Plot No.128, behind Sagar Beerbar,
Vaishali Nagar, Kamal Chowk, Nagpur
...VERSUS...
RESPONDENTS :- 1. Divisional Commissioner,
Nagpur Division, Nagpur.
2. Superintendent of Jail,
Central Prison, Nagpur District Nagpur.
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Ms.S.B. Khobragade, Counsel for the Petitioner.
Mr.A.M. Joshi, APP for the respondents.
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CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 07.02.2018 O R A L J U D G M E N T (Per : Smt.Vasanti A Naik, J.)
1. Rule. Rule made returnable forthwith. The writ petition is heard finally at the stage of the admission with the consent of the learned counsel for the parties.
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2. By this criminal writ petition, the petitioner challenges the order passed by the Divisional Commissioner, Nagpur dated 14.12.2017, rejecting the application of the petitioner for grant of Parole leave.
3. Ms. Khobragade, the learned counsel for the petitioner states that merely because the appeal filed against the petitioner against the judgment of his conviction is pending in the High Court, the Divisional Commissioner, Nagpur could not have rejected the application filed by the petitioner for Parole leave. It is stated that the physically challenged brother of the petitioner would be undergoing an eye operation and since there is nobody else in the family to take care of him, the Divisional Commissioner ought to have granted the prayer made by the petitioner.
4. Shri.Joshi, the learned Additional Public Prosecutor appearing for the respondents states that apart from the fact that the appeal filed by the petitioner is pending in this Court, it would be necessary to note that the petitioner has sought Parole leave for 45 days for a minor eye operation of his brother. It is stated that for an eye operation, it would not be necessary for the petitioner to seek Parole KAVITA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 02:05:05 ::: 907-wp(cril.) 65-18-Judgment 3/4 leave of 45 days.
5. Since the Parole leave of the petitioner is rejected solely because the appeal filed by the petitioner against the judgment of his conviction is pending in the High Court, it would be necessary to set aside the order of the Divisional Commissioner and direct the respondent to release the petitioner on Parole. The brother of the petitioner would be undergoing an eye surgery and the said fact is not disputed. Since, the brother of the petitioner is physically challenged, it would be necessary for the petitioner to take care of his brother as according to the petitioner, there is no one else in his family to take care of him. The provisions of Rule 4(11) of the Prisons (Bombay Parole and Furlough) Rules 1959, so far as they provide that parole or furlough could not be granted when the appeal of the convict is pending are challenged in this Court in more than a couple of criminal writ petitions and after prima facie finding that the rule is arbitrary and illegal, we have granted Parole and furlough to several convicts. Since, there is no other reason for rejecting the Parole leave of the petitioner, it would be necessary to direct the Divisional Commissioner to pass an order granting Parole leave of at least 15 days to the petitioner.
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6. Hence, for the reasons aforesaid, the writ Petition is partly allowed. The impugned order is quashed and set aside. The Divisional Commissioner is directed to pass an order granting parole leave of at least 15 days to the petitioner on such terms and conditions that are required to be fulfilled as per Rules of 1959 including the furnishing of surety as is required by Rule 6 of the Rules. The Petitioner should be released on Parole within one week from the date on which he furnishes the surety as is required by Rule 6 of the Rules. Rule is made absolute in the aforesaid terms.
JUDGE JUDGE
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