BALAJI MARUTI LONDHE Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule. Rule made returnable forthwith and heard finally with the consent of the learned counsel appearing for the parties.

(2.) The brief facts leading for filing this Criminal Writ Petition are as under:- The petitioner is convicted and sentenced for life imprisonment. Presently the petitioner is in Central Prison, Nashik. The petitioner submitted application along with necessary documents on 25th April, 2016 before the Respondent No.3 and prayed for grant of parole leave on the ground of serious illness of his mother. Thereafter, after verifying all the record and facts of the case, the Respondent No.2 was pleased to allow the proposal of the petitioner on 25 th August, 2016 and directed the Respondent No.3 to release the petitioner on parole leave on the terms and conditions mentioned in the order. The Respondent No.1 issued Government Notification dated 26th August, 2016, thereby amending the Prison Act, 1894 and substituted some clauses. The petitioner was not released as per order dated 25th August, 2016 passed by the Respondent No.2, in view of newly amended clause No.5(C)(ii) vide Notification dated 26th August, 2016, therefore, he requested the Respondent No.3 to forward his request for granting extension.

(3.) The learned counsel appearing for the petitioner submits that, the Respondent No.2 erred while giving retrospective effect to the Government Notification dated 26th August, 2016 issued by Home Department, Government of Maharashtra. Therefore, the action of the Respondent No.2 is not only illegal but also causing great injustice to the petitioner. The learned counsel further submits that, the Respondent No.2 erred while observing that, the petitioner is not eligible to grant parole leave as per clause No.5(C)(ii) of the Government Notification dated 26th August, 2016. It is submitted that, the Respondent No.3 vide reminder letter dated 3rd October, 2016 specifically brought to the notice of the Respondent No.2 that, the petitioner has completed 6 months period of actual imprisonment to be counted from his last return from parole as prescribed in clause 5(C)(ii) of the said Notification. It is submitted that, the decision of the Respondent No.2 to give retrospective effect to the Government Notification dated 26th August, 2016 is contrary to the judgment of the Division Bench of the Bombay High Court at Principal Seat in the case of Subhash Hiralal Bhosale V/s State of Maharashtra and anr.2013(4) Bom.C.R. (Cri.)318. It is submitted that, the date on which the petitioner applied for parole leave is the relevant date. At the relevant date, when the petitioner applied and his application was considered, the Notification referred in the impugned order was not issued by the State Government. In fact the said Notification came to be issued on 26th August, 2016. In the present case, after considering the record of the petitioner and proposal, the Divisional Commissioner passed the detailed order on 25th August, 2016 (Exhibit-A Page 13) and granted parole leave of 30 days on condition stipulated in the said order. It is submitted that, the very same authority reviewed the earlier order and relying upon the Notification dated 26th August, 2016, more specifically, the Rule 5(C)(ii) of the said Notification, rejected the prayer of the petitioner for extension of parole leave. Therefore, the learned counsel appearing for the petitioner relying upon the pleadings in the Petition and annexures thereto, submits that, the Petition may be allowed.