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2012 DIGILAW 1149 (BOM)

Sher Singh v. State of Goa

2012-06-29

F.M.REIS

body2012
Judgment : Heard Ms. Matkar, learned Counsel appearing for the Petitioner and Shri Lawande, learned Addl. Public Prosecutor appearing for the Respondents. 2. Rule. Heard forthwith with the consent of the learned Counsel appearing for the parties. Learned Addl. Public Prosecutor waives service. 3. The short point for consideration in the above Criminal Writ Petition is as to whether the Petitioner has made out a case for parole on the ground that his widowed mother is seriously ill which would entitle him to get such relief. By the impugned Order dated 12.06.2012, the Respondent no. 2 has rejected the application filed by the Petitioner. Being aggrieved by the said Order, the present Petition has been filed. 4. Ms. Matkar, learned Counsel appearing for the Petitioner, pointed out that the Respondent no. 2 has misconstrued the provisions of the Prison Rules to reject the application filed by the Petitioner as, according to her, there was enough evidence on record to suggest that the mother of the Petitioner was seriously ill. Learned Counsel further submits that the report of the Medical College and Hospital produced by the Petitioner categorically states that the mother of the Petitioner is suffering from acute cholecystitis, and pointed out that the Certificate from the Indira Gandhi Medical College & Hospital, Shimla, inter alia states: • Certified that Smt. Premi devi 60y. Old female CR NO • 201111122308 is suffering from acute cholecystitis with COPD. One Attendent is required to look after her.” Learned Counsel further pointed out that in the verification report received by the Respondents, the fact that the mother of the Petitioner was suffering from said illness, is not disputed but the only statement made therein is that the mother is an out patient and is visiting the Hospital from time to time. Learned Counsel further pointed out that on earlier two occasions, the Petitioner was released on parole and that he had satisfied all conditions and/or surrendered to the authorities. Learned Counsel further pointed out that the mother of the Petitioner is widowed and does not have any assistance to take care of herself during such illness. Learned Counsel as such submits that the impugned Order be quashed and set aside and the application filed by the Petitioner for parole be granted. 5. On the other hand, Shri D. Lawande, learned Addl. Learned Counsel as such submits that the impugned Order be quashed and set aside and the application filed by the Petitioner for parole be granted. 5. On the other hand, Shri D. Lawande, learned Addl. Public Prosecutor appearing for the Respondents, has pointed out that though the records reveal that the mother of the Petitioner is sick but, however, it suggests that she is being treated as an outpatient in the Hospital and that the illness she is suffering from is not serious. Learned Addl. Public Prosecutor pointed out that considering that the seriousness of the illness is not established, the granting of parole in such circumstances does not arise. The learned Addl. Public Prosecutor, however, has not disputed that otherwise the Petitioner is entitled for parole. 6. I have carefully considered the submissions of the learned Counsel and I have perused the records. On perusal of the records, it cannot be disputed that the widowed mother of the Petitioner is suffering from acute cholecystitis. The subjective satisfaction as to whether such illness is serious or not is a matter which has been considered by the Division Bench of this Court in the Judgment passed in Criminal Writ Petition No. 409 of 2009 on 23.06.2009 in the case of Pramodvs. The State of Maharashtra, wherein it has been held at para 4 thus: “4. The respondents while rejecting the application of the petitioner have observed that the ailment with which the mother of the petitioner was suffering was not a serious ailment, as on account of advanced age the mother of the petitioner requires rest. According to us such an approach is contrary to the ailment which is described in the medical certificate. Mother of the petitioner is said to be suffering from Status Asthmatic with Diabetes and Ischemic heart disease with Hypertension. According to us, the aforesaid disease is certainly serious disease warranting the petitioner for his release on parole. No other reason is ascribed in the impugned order passed in the application of the petitioner seeking his release on parole. In the light of that the impugned order is unsustainable in law and deserves to be quashed and set aside.” 7. The learned Single Judge of this Court has also considered in Criminal Writ Petition no. 21 of 2007 in the case of SherSingh vs. State of Goa & Ors., at para 8 thus: “8. In the light of that the impugned order is unsustainable in law and deserves to be quashed and set aside.” 7. The learned Single Judge of this Court has also considered in Criminal Writ Petition no. 21 of 2007 in the case of SherSingh vs. State of Goa & Ors., at para 8 thus: “8. Rule 324 provides as to when parole is to be granted. It states that parole may be granted to a prisoner in the event of emergent situations like death or serious illness of father, mother, brother, sister, spouse and children and also marriage of brother, sister and children. The question is whether the Petitioner's father could be considered to be suffering from an serious illness. The Petitioner's father, as disclosed in the medical certificate is suffering from stricture of the ureterra and is under treatment at the Regional Hospital, Kullu, H.P. and is required to undergo surgery and for that an attendant is necessary. Not every illness is serious. Serious, inter alia, means important, weighty. An illness which is likely to permanently or materially impair, the health of the prisoner could be considered to be serious. Considering the illness of the Petitioner's father, as certified by the Medical Officer, Regional Hospital, Kullu and by the Pradhan of the Gram Panchayat at Arsu, the Petitioner ought to have been granted parole as prayed for. The Government does not appear to have exercised its discretion rightly considering the medical report as well as the report of the Pradhan which had further certified that the problem of the Petitioner's father was genuine.” 8. Considering the Judgments of the learned Division Bench and Single Judge of this Court referred to in the cases of Pramodvs. The State of Maharashtra (supra) and SherSingh vs. State of Goa & Ors., (supra) and taking note of the fact that the illness of the mother of the Petitioner is of an acute nature affecting her stomach and the said certificate suggests that an attendant is required to look after her, I find that the Respondent no. 2 was not justified to refuse parole application filed by the Petitioner. Taking also note of the fact that the learned Addl. Public Prosecutor otherwise does not dispute that the Petitioner is entitled for parole, I find it appropriate that the impugned Order passed by the Respondent no. 2 was not justified to refuse parole application filed by the Petitioner. Taking also note of the fact that the learned Addl. Public Prosecutor otherwise does not dispute that the Petitioner is entitled for parole, I find it appropriate that the impugned Order passed by the Respondent no. 2 be quashed and set aside and the Petitioner be directed to be released on parole subject to the terms and conditions as may be imposed by the Respondent no. 2. 9. In view of the above, I pass the following: ORDER (i) The impugned Order dated 12.06.2012, passed by the Respondent no. 2, is hereby quashed and set aside and the Respondent no.2 is directed to grant the application of the Petitioner for his release on parole on such terms and conditions which Respondent no. 2 considers appropriate. (ii) Rule is dispose of in the above terms. (iii) Petition stands disposed of accordingly.