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7. I have considered the submissions of both learned Advocates at length. Considering the facts and circumstances of the case so also the respective submission of the learned Advocates, the provisions of relevant rules in respect of grant of parole as prescribed under Rules 18(1)(2) and 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959 are required to be referred, and therefore, the same are reproduced hereinbelow :

Rules 18(1X2) & 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959.

5. Secondly, he should consider the criteria laid down under Rule 4 of the Furlough and Parole Rules, 1959, particularly whether the prisoner is a habitual offender, his conduct in the prison and whether he has shown any tendency towards crime in the person and whether at any time he has escaped or attempted (o escape from lawful custody or has defaulted in any way in surrendering himself at the appropriate time after release on parole or furlough. Under Rule 8 Sub-rule (5) if furlough isn't recommended, the District Magistrate or the Commissioner of Police is required to mention adequate reasons therefore. Under Sub-rule (6) of Rule 8 the Sanctioning Authority is required to consider the said recommendation and pass an appropriate order. It does not mean that if the authority has not recommended it without any reason or for any insufficient reason, the Sanctioning Authority, i.e., the I. G. Prisons should not release the prisoner on furlough.

14. I have considered the submissions of both learned Advocates as well as considered various authorities on which reliance placed by the respective learned Advocate. Considering the submission of Mr. Oza, learned P.P., that after conviction by the Apex Court dated 10th July, 3997, the petitioner was absconding for about more than 2 years period so also drawn attention of this Court to past criminal history and the nature of the offence. It is also submission of the learned P.P. Mr. Oza that while in the jail custody, when the petitioner was produced before the C.J.M., Rajkot, he used mobile phone for administering threat to the public, and therefore, if he is released on parole, there are all likelihood of disturbance of public order and public peace. Therefore, the State Government has rightly rejected the application submitted by the petitioner. In light of this submission of Mr. Oza, learned P.P., the aspect which arises for consideration of this Court is that whether the State Government is entitled to consider all these aspects while considering the parole application submitted by the petitioner or not? No doubt, Parole is not a legal right of the convict alike furlough, but it is also right which has been guaranteed under the relevant Rules for which the petitioner is entitled in case of death of nearest relative. On an occasion of death of nearest relative of the convict and when an application for the parole is made before the State, it is the duty of the State to consider the relevant rules while dealing with the parole application of the convict. The State Government cannot discard the rules which are binding to the State Government at the time of passing the order on parole application. Therefore, it is necessary to note that Rule 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959 which clearly provides that a prisoner may be released on parole for such period not exceeding thirty days at a time, as the Competent Authority referred to in Rule 18, in its discretion may order, in cases of serious illness, or death of nearest relative such as mother, father, sister, brother, children, spouse of the prisoner, or in case of natural calamity such as house collapse, floods, fire. No such parole or extension of parole shall be granted without obtaining a police report in all cases except in the case of death of his nearest relatives mentioned above. In the case on hands, the cause for seeking parole on the ground of death of elder brother of the petitioner and this cause not been disputed by the respondents - State Government. Therefore, it is undisputed position before this Court that nearest relative of the petitioner i.e., elder brother has died on 18th May, 2001, and therefore, parole application has been submitted on 19th May, 2001, which has been rejected by the State Government on 29th May, 2001 and again after recommendations and representation from the political leaders, the State Government has again rejected on 15th June, 2001. Pursuant to the order passed by this Court on 22nd June, 2001, a communication dated 26th June, 2001 has been placed on record by the State Government, and therefore, parole application has been rejected by the State Government as per the affidavit filed by the Deputy Secretary, Home Department dated 4th July, 2001 which is on record, wherein the averments of Para 12 are as under :-

16. In furtherance of these objects, the Parole and Furlough Rules are framed in exercise of powers under Sections 59[5] and 28 of the Prisons Act, 1894."

15. Rule 19 of the Rules is very much clear which requires to gram parole application of the convict irrespective of the fact having adverse police report against the convict/prisoner.

16. It is necessary to note that State having serious apprehension that petitioner during parole may abscond or run away or disturb the public order and public peace. But State can take effective steps for such apprehension. The State can grant parole with full escort. If State is not able to control one person even with escort then, how the State can protect the citizens under the public order and public peace. Such apprehension cannot become a ground to reject the parole application. Such inhuman approach of State is not just and proper. The convicts or prisoners are not animals who can be treated in such inhuman manner. It is undisputed that said incident occurred in the family, which requires presence of the petitioner just to share the said occasion with family members. It is also necessary to have some family arrangements or adjustments after the death of the elder brother of the petitioner. So, merely some time lapse or the defence of the State that now the crucial time of occasion is over, is not enough to reject the application. Mental agony still remains in the mind of the family members on account of all of sudden death of the elder brother of the petitioner. Parole's Rule itself provide parole on such occasion even without police report. In such circumstances, rejecting parole application is little harsh and unjustified. In background of the said facts and circumstances of the present case, the relevant observations made by the Apex Court in case of Sunll Batra v. Delhi Administration, reported in AIR 1980 SC 1579 are quoted as under :-