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2012 DIGILAW 2131 (BOM)

Sanjay Munjaji Zunjare v. State of Maharashtra

2012-11-05

A.H.JOSHI, U.D.SALVI

body2012
JUDGMENT A.H. JOSHI, J. Rule, Rule is made returnable forthwith. Heard by consent. 2. This is a letter petition. We had considered the contents of letter petition and its annexures. Heard the learned A.P.P. 3. We were at the very outset grossly dissatisfied with the manner in which the order was passed by the Divisional Commissioner. We, therefore, passed order on 28.8.2012 as follows: "Learned A.P.P. is directed to secure the file of the Divisional Commissioner, Aurangabad. Learned A.P.P. should also take instructions from the Divisional Commissioner, Aurangabad as to whether he would reconsider his order in the background that the adverse police report is almost a prototype report and sent without application of mind, and also that the Divisional Commissioner has failed to apply his mind. Statement be made on 29th August 2012. S.O. 29th August 2012." 4. On the next date of hearing i.e. on 29.8.2012, no affirmative instructions were received by learned A.P.P. 5. We have then considered the papers which we had called. 6. In the background what we have noted we have recorded in our order dated 29.8.2012 as follows: "3] We have perused the office note purportedly dated 7.4.2012. In the parole case papers from the office of the Divisional Commissioner, in the note-sheet, the paragraph no. 4 is as if pari-materia text corresponding to the Police report barring re-arrangement of words and sentences. It is seen that the note written by the Clerk is seconded by the Head Clerk, the Naib Tahsildar, the Deputy Commissioner (General Administration Department) and approved by the Divisional Commissioner. 4] The factual aspect of the matter namely as to how the release of the petitioner on parole would adversely affect the law and order etc. is not at all even barely looked into by the Divisional Commissioner. We are shocked with the attitude that the Divisional Commissioner has not given response to the observation made by us in the order dated 28.8.2012. 5] We are required to record with pains that it is seen to be usual affair that the office-notes are written by the Clerks almost by word to word copying the Police report without any analysis and without application of mind. Those are endorsed by the higher officers as if they have a duty to approve the office note without dissent and have to reject the applications for parole. Those are endorsed by the higher officers as if they have a duty to approve the office note without dissent and have to reject the applications for parole. The orders whereby parole is granted, do not ordinarily come before us and, therefore, we do not have the facility to see the manner in certain sparing and selected cases where application of mind can be seen. 6] We are also shocked with the prototype report sent by the Police Inspector, Local Crime Branch from the office of the Superintendent of Police, Nanded, and we propose and do hereby issue appropriate directions against him. 7] For the present, we direct as follows:- [a] The Divisional Commissioner, Aurangabad, is directed:- [i] To explain as to what measures he would take to ensure due application of mind at the level of subordinate staff, who would be forwarding the office notes as well at his own level. [ii] State whether he would review and re-examine the petitioner's application for parole." (Quoted from pages nos.2 to 4 of our order dated 29.8.2012 in the present petition) 7. The Divisional Commissioner has filed affidavit. It would be appropriate to quote his version than to describe. The relevant portion contained in the affidavit of the Divisional Commissioner dated 10.9.2012 in para No. 4 reads as folIows:- "4. As regards the procedure for taking decision on parole application is concerned, it is humbly submitted that this office takes decision on the basis of the police report received as no independent enquiry is conducted by this office at the field level. However, where it is felt that detailed police report should be sought for or there is a discrepancy in the same henceforth due caution and care in this regard shall be taken. Moreover, as regards the observation that there is no application of mind, it is humbly submissively submitted that as police report is the primary basis for taking decision on such application there is not much of a difference in view as regards the interpretation of the same is concerned at the various levels at which the file is processed in this office." (sub-paras are made for convenience and underlining is done for emphasis) (Quoted from pages 10 and 11 of the present writ petition paper book) 8. We have then recorded our dissatisfaction and disapproval towards the attitude expressed in first as well as last sentence from para No. 4 quoted above and underlined for emphasis. 9. On perusal of the text quoted above, it reveals that last sentence commencing from "Moreover, as regards the observation that there is no ......... is processed in this office." i.e. the underlined portion seems to us to be an expression consisting of gross impropriety. 10. It appears that the draftsman, who had drafted the affidavit wanted to pass on sermon to this Court that the Divisional Commissioner is expected or bound to take decision on the basis of police report and "no separate enquiry is conducted by his office or at his level". 11. We have noticed that second sentence contained in the quotation contained in foregoing paragraph No. 7 namely "However, where it is felt that detailed police report should be sought for or there is a discrepancy in the same henceforth due caution and care in this regard shall be taken" is made mostly to avoid further adverse observations. We regard it to be an artificial expression. It totally lacks wholehearted confession of inefficiency and gross dereliction. 12. Therefore, we had passed another order on 11.9.2012 and expressed our serious dissatisfaction about the manner in which the affidavit of Divisional Commissioner was worded and the manner in which expression of opinion about non-application of mind done by this Court was responded. We again gave the Divisional Commissioner an opportunity to respond to the observations made by us in para Nos. 8 to 12 contained in the order passed on 11.9.2012. Those paras need to be reproduced for ready reference, and are quoted as follows :- "8. The expression contained in para No. 4 of the affidavit of the Divisional Commissioner, prima facie reflects improper attitude of the affiant towards the Court. Having agreed and undertaken to call for fresh police report, the expression by the Divisional Commissioner as regards inability to take the different view is also wholly untenable and prima facie discloses express refusal to apply mind. Having agreed and undertaken to call for fresh police report, the expression by the Divisional Commissioner as regards inability to take the different view is also wholly untenable and prima facie discloses express refusal to apply mind. Had the witnesses examined against prisoner in the trial which had led to conviction, expressed apprehension before police, as referred to in the adverse police report, the Police Officer concerned ought to have recorded statements of such persons who apprehended threat to their safety at the hands of the prisoner in the event he is released on parole. Had such statements come on record and the order of Divisional Commissioner would have been passed relying on such statements as the basis of adverse police report, in such eventuality, Commissioner's order may have revealed to be based same factual data and objective basis. Such is not the fact of matter in present case. 9. In our prima facie view, submissions by Divisional Commissioner before us that a view, other than the one expressed in the report submitted by police, cannot be neglected by the Divisional Commissioner, is showing total apathy towards the duty as an executive dealing with human rights apart that it may also be open disregard to the eloquent precedents. The affidavit in reply in present case which is filed by the Divisional Commissioner who is a highly placed and senior IAS Officer, and who is appellate/quasi judicial authority as well, pains us too much. 10. In so far as calling for the fresh police report and passing of the order is concerned, the same is wholly unwarranted, and this concession too does not appear to us to be a whole hearted concession. 11. We have made the observations herein-above as prima facie, and we would like to know point of view, if any the Divisional Commissioner, Aurangabad has. If we find that there is no explanation coming forward from the Divisional Commissioner towards the attitude which we have found to be worth criticism, liable to abhorred and deprecated, we may pass appropriate orders while passing on merits in this case. 12. We therefore, adjourn the hearing till 8th October, 2012 for enabling the Divisional Commissioner, Aurangabad to respond by filing proper affidavit, which, if he feels free, choose to do." (Quoted from order dated 11.9.2012) 13. The Divisional Commissioner, Aurangabad has filed fresh affidavit on 7.10.2012. 12. We therefore, adjourn the hearing till 8th October, 2012 for enabling the Divisional Commissioner, Aurangabad to respond by filing proper affidavit, which, if he feels free, choose to do." (Quoted from order dated 11.9.2012) 13. The Divisional Commissioner, Aurangabad has filed fresh affidavit on 7.10.2012. In this affidavit he expressed as follows :- "What I wanted to mention in para 4 was that as regards police report is concerned which is the primary basis for taking decision it being a factual report, there is not much difference of view in interpreting the same at the various levels in our office. However, it was not implied that there cannot be any difference of view as regards the acceptance of the same is concerned. I humbly submit that henceforth the police report will not be accepted as it is without the proper application of mind." (Quoted from pages 30 and 31 of the present writ petition paper book) 14. In this affidavit dated 7.10.2012, the Divisional Commissioner, Aurangabad has tried to explain and interpret the contents of para No. 4 of his affidavit dated 10.9.2012 about which this Court has recorded serious dissatisfaction. 15. We do recognize the right of officers to justify and defend what they may rightly reply. This recognition of their duty and right to explain does not imply that the officers should exhibit departure from sense of responsibility and good test in the language of pleadings. Therefore, we disapprove the attitude where inappropriate language is employed to begin with, then exert to justify it at the risk of expressing further disrespect, and then expressing regrets than a whole-hearted and heart-felt apologies. 16. The assurance now given before this Court in the last sentence of the portion quoted should have been the first thing to occur in the first affidavit as well as in the recent affidavit that too with eloquent words of apology. Prudence is sheer personal property of the mind and we cannot govern it. It cannot be taught rather has to be learnt that apology is not cowardice or escapism, it is rather a matter of ability of courageous, and is exhibition of virtue for higher in merit than shame. Be that as it may. 17. In the affidavit the Divisional Commissioner has further given certain undertakings which are analogous to undertaking given in affidavits in other cases. 18. Be that as it may. 17. In the affidavit the Divisional Commissioner has further given certain undertakings which are analogous to undertaking given in affidavits in other cases. 18. A statement is contained in para No. 7 of the affidavit that if a fresh application is filed, it would be considered on merits. 19. We record what we have already recorded while deciding Criminal Writ Petition No. 734/2012 to avoid any room of doubt that the statement offers lip sympathy. Though remorse is expressed, a commitment to the effect that the order be set aside, and the same application would be reconsidered, would have been appropriate in fitness and fairness for a benevolent bureaucrat. Such a statement may have been most appropriate and in the fitness of things. However, what is manifest is true picture of attitude. 20. Therefore, case is made out for quashing the impugned order as well for a direction that the Divisional Commissioner should decide the application afresh based on material available on record taking into account all undertakings, the standing directions of the State, the rights of petitioner and various orders passed by this Court. 21. We, therefore, pass following order: (a) Order dated 11.4.2012 rejecting the petitioner's request for parole is set aside and the case is remanded to the Divisional Commissioner, Aurangabad for disposal in accordance with law. (b) The Divisional Commissioner, Aurangabad is directed to pass an order on petitioner's application afresh on the basis of material already on record as reflected from his affidavit within 10 days from today. (c) The undertaking given in this Court quoted in para No. 13 shall form part of this order. (d) The authorities namely ;- (1) The Secretary (Appeals and Security), Home Department; (2) Director General of Police; and; (3) Divisional Commissioner, Aurangabad; are directed to take a note of the writ issued in this petition in the register of writs maintained by them. They shall certify the writ under own signature and return it to this Court for the purposes of record within ten days from the date of receipt of the writ in respective office. (e) We direct learned A.P.P. to communicate to the authorities concerned to ensure timely compliance, requisitioned in foregoing order clause. (f) Rule made absolute in above terms. Petition allowed.