Bombay High Court
Arun S/O Gulab Gawli C-8535 vs Divisional Commissioner, Nagpur ... on 26 February, 2020
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, Madhav J. Jamdar
Judgment 1 CWP 89.20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.89 OF 2020
Arun s/o Gulab Gawli, C-8535,
Aged about 66 years,
R/o. Gitai Society, Dagdi Chawl,
Baburao Jagtap Marg,
Byculla (W), Mumbai-11,
Presently Nagpur Central Prison,
Nagpur. .. Petitioner
.. Versus ..
1] Divisional Commissioner,
Nagpur Division,
Nagpur.
2] The Superintendent Central Prison,
Nagpur. .. Respondents
..........
Shri R.M. Daga, Advocate with Shri M.N. Ali, Advocate for the
petitioner,
Shri A.D. Sonak, Additional Public Prosecutor for the respondents-
State.
..........
CORAM : SUNIL B. SHUKRE AND
MADHAV J. JAMDAR, JJ.
DATED : 26th FEBRUARY, 2020.
ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)
1] Rule. Rule made returnable forthwith. Heard finally forthwith by consent of the learned counsel for the parties. ::: Uploaded on - 04/03/2020 ::: Downloaded on - 24/03/2020 02:01:34 :::
Judgment 2 CWP 89.20.odt 2] The petitioner, who upon his conviction, for the offences
punishable under Sections 302, 120 (B) of the Indian Penal Code r/w Section 3 (1) (i), 3 (i) (ii), 3 (2), 3 (4) of the Maharashtra Control of Organized Crime Act, is undergoing sentence of imprisonment for life along with other accused persons. Presently, he has been lodged in Nagpur Central Jail. The petitioner was tried and convicted by the learned Sessions Judge, Mumbai. He was lodged in Nagpur Jail. He appears to have been temporarily transferred to Taloja Jail. 3] The petitioner made an application to the respondent no.1 for grant of parole to him on the count of serious illness of his spouse. It is not in dispute that on merits of the application the petitioner has been found to be eligible to be released on parole. What is at issue is the background of the petitioner which has made authorities apprehend that if he is released on parole even temporarily, the petitioner may indulge in unruly behaviour and may also commit some cognizable offence. The authorities are of the opinion that the petitioner being leader of a gang of criminals and having a fearsome influence in the area surrounding his residential place at Mumbai, there is a possibility of breach of public peace and public order and that there is also a danger to his life. The authorities are of the view that ::: Uploaded on - 04/03/2020 ::: Downloaded on - 24/03/2020 02:01:34 ::: Judgment 3 CWP 89.20.odt there exists in the family of the petitioner an alternate support for taking proper care of ailing wife of the petitioner. These grounds formed the basis of the impugned order dated 22.01.2020, by which the parole application of the petitioner came to be rejected. Petitioner has challenged this order in the present petition. 4] Shri Daga, learned Advocate for petitioner submits that the impugned order is perverse, arbitrary and illegal, while learned Additional Public Prosecutor maintains that it is perfectly legal. 5] On going through the impugned order which is based upon adverse police report, we find that the authority i.e. respondent no.1 has not referred to any material on the basis of which afore-stated apprehension could have been expressed by him. Neither the impugned order nor the police report refer to even the basic fact that there exists some material on record, which upon perusal, would show that apprehension so expressed by the authority has a reasonable foundation, though in an executive order like the impugned order, it is not necessary for the authority passing the order to dwell upon the reasons in detail. It is necessary for such authority to reach his subjective satisfaction upon consideration of the material available on record and if it is shown that the subjective satisfaction was without ::: Uploaded on - 04/03/2020 ::: Downloaded on - 24/03/2020 02:01:34 ::: Judgment 4 CWP 89.20.odt any basis, it would be an unreasonable order and hence be an order vulnerable in law. This is called principle of Wednesbury unreasonableness (See Sumit s/o Ramkrishna Maraskolhe .vs. Deputy Commissioner of Police Zone-1, Nagpur and another, reported in [2019 (2) Mh.L.J. (Cri.) 14 (Full Bench). By applying this principle to the impugned order, we find that it does not satisfy the test of principle of Wednesbury unreasonableness and, therefore, it cannot be sustained in the eye of law.
6] Apart from what is stated above, there is another reason why the impugned order could not be upheld by this Court. The impugned order does not deal with what has been done by the authorities on the earlier occasions while considering the previous parole and furlough applications of the petitioner. The reply additionally filed by the respondent no.1 gives a chart of the parole and furlough granted on earlier occasions to the petitioner. The reply shows that the petitioner was on parole during the period of 17.4.2018 to 25.4.2018 during which period offences punishable under sections 143, 147, 148, 323, 427, 506, 385, 387 r/w Sec. 149 of the IPC were registered against the wife of the petitioner and that the petitioner is a prime leader of Gavali Gang. The reply, however, does not go beyond that. It does not say that the afore-stated offences came ::: Uploaded on - 04/03/2020 ::: Downloaded on - 24/03/2020 02:01:34 ::: Judgment 5 CWP 89.20.odt to be registered against the wife of the petitioner on account of the petitioner being a main leader of Gavali Gang or presence of the petitioner during that period of time at his residence led to commission of those offences. Above all, after registration of these offences, the petitioner has been released on furlough leave on 8.5.2019. Therefore, the registration of the said offences against the wife of the petitioner would have no bearing upon the background and conduct of the petitioner and also any possibility of the happening of any criminal event on account of release of the petitioner now. 7] There are charts given in the reply. These charts show that petitioner has been released on furlough on three occasions in the past and he has been released on parole on four occasions in the past. For the sake of convenience, the charts are reproduced as below :
Furlough Leave Sr. Particulars Date of Date of Remarks No. Release Surrendered 1 Furlough leave 13.04.2016 Surrendered Surrendered on due date himself i.e. on 12.5.2016.
2 Furlough leave (as 04.05.2017 Surrendered Surrendered per order by Hon'ble on due date himself i.e. High Court) on 02.06.2017 ::: Uploaded on - 04/03/2020 ::: Downloaded on - 24/03/2020 02:01:34 ::: Judgment 6 CWP 89.20.odt 3 Furlough leave (as 08.05.2019 Surrendered Surrendered per order by Hon'ble on due date himself i.e. High Court) on 06.06.2019 Parole Leave Sr. Particulars Date of Date of Remarks No. Release Surrendered 1 Parole leave (As per 05.05.2015 Surrendered Surrendered order by the Hon'ble on due date himself i.e. High Court) on 12.6.2015.
2 Parole leave (As per 21.10.2016 Surrendered Surrendered
order by the Hon'ble on due date himself i.e.
High Court) on
02.11.2016
3 Parole leave 17.04.2018 Surrendered Surrendered
(Emergency parole on due date himself i.e.
leave) on
25.04.2018
4 Parole leave (As per 30.04.2018 Surrendered Surrendered
order by the Hon'ble on due date himself i.e.
High Court) on
30.06.2018
8] A bare perusal of the charts would show that on each
occasion when the petitioner was released on furlough or parole, the petitioner had surrendered himself on due date to the prison authorities. There is nothing in the reply from which it could be known that on any of the earlier occasions, when the petitioner was at large either on furlough or parole, any attempt to endanger life of the ::: Uploaded on - 04/03/2020 ::: Downloaded on - 24/03/2020 02:01:34 ::: Judgment 7 CWP 89.20.odt petitioner was made. Similarly, there is no reference made in the reply to any untoward incident in relation to breach of public peace and public order or otherwise because of the presence of the petitioner temporarily at his residence in Mumbai. So, it could be found without any hesitation that the apprehension expressed in the impugned order is fanciful and arbitrary. The impugned order also speaks of presence of a person in the family to support ailing wife of the petitioner. We find that this could not be the reason to reject parole, as no person in the family can extend a support or help to an ill wife as her husband would and in such a case, the husband himself would like to see his wife or otherwise his anxiety will affect his well being adversely. The impugned order, therefore, must go.
9] Learned APP submits that there is a provision under Rule 4 of the Prisons (Furlough and Parole) Rules, 1959 which lays down that the prisoner be not granted parole when the police report is adverse. This rule applies to an application filed for seeking furlough. However, in view of Rule 22 (2) of the Prisons (Furlough and Parole) Rules, 1959, said Rule 4 would be relevant for deciding also the parole application. But, at the same time, it cannot be laid down as a rule of universal application that just because police report is adverse, no parole can be granted. All will depend on facts and circumstances of ::: Uploaded on - 04/03/2020 ::: Downloaded on - 24/03/2020 02:01:34 ::: Judgment 8 CWP 89.20.odt each case and in a given case, it is possible that though the police report is adverse, it may not be accepted to be true because the adverse opinion expressed therein is not founded on any reasonable criterion or material. Rule 8 (5) of the Prisons (Furlough and Parole) Rules, 1959 also requires adequate reasons to be given for rejecting the parole application. So, if the police report is adverse and discloses no material or existence of any material for basing any such adverse conclusion, it could be rejected by recording reasons. Here, we have already found that impugned order is unreasonable because it is based upon a police report which does not satisfy this criterion.
10] In the result, we are inclined to allow the petition. The petition is allowed. The impugned order is hereby quashed and set aside. The respondent no.1 is directed to grant parole leave to the petitioner as per the entitlement and eligibility and upon such conditions, as may be permissible to be imposed upon the petitioner in terms of Prisons (Furlough and Parole) Rules, 1959, within a period of one week, from the date of receipt of this order.
Rule accordingly.
(MADHAV J. JAMDAR, J.) (SUNIL B. SHUKRE, J.)
Gulande
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