Judgment : (P.D. Kode, J.) 1. Heard. 2. Rule. Rule made returnable forthwith. Learned A.P.P. waives service for respondent nos.1 to 3. By consent of the parties taken up for final hearing. 3. By this petition filed under Article 226 of the Constitution of India the petitioner has prayed for setting aside the order dated 3rd February 2012 passed by respondent no.1 – appellate authority rejecting his prayer for granting parole for 30 days on the ground of sickness of his mother. He has preferred appeal against the order dated 17th September 2011 passed by respondent no.3 rejecting his application dated 17th August 2011 for grant of such a parole leave. The petitioner is a convict presently lodged at Nasik Road Prison & is undergoing sentence of life imprisonment awarded to him by Additional Sessions Judge Greater Bombay in Sessions Case No 270/2002 on 24th November 2004 for commission of offences under section 396, 395 and 449 of Indian Penal Code. The Criminal Appeal No.441 of 2005 preferred by the petitioner in this Court against the said order of conviction and sentence is pending for hearing and final disposal. 4. The petition is founded on the ground that prayer for parole is rejected by Respondent No 3 as well as Respondent No 1 mechanically without applying mind to the material placed in support of prayer for parole and accepting at face value matters stated in the adverse report submitted by police from Pali at Rajasthan. The petition is opposed on behalf of the respondents on the ground that decisions of rejection of parole was arrived after giving due consideration of the material placed before Respondent No 1 and 2 and as such same warranting no interference. 5. The petition is opposed on behalf of the respondents on the ground that decisions of rejection of parole was arrived after giving due consideration of the material placed before Respondent No 1 and 2 and as such same warranting no interference. 5. The orders of rejection of prayer for parole reveals that the same were based upon adverse police report that: (1) medical certificate regarding illness of mother submitted by the petitioner was of 25th July, 2011 & the same was not disclosing that illness of his mother was of serious nature and she was well; (2) The petitioner who was granted parole on three occasions had unauthorizedly remain out of the prison for 35 days on one occasion and for 203 days on the second occasion; and thus the petitioner had then not complied with terms and conditions imposed while granting said parole leave to him; (3) The father and brothers of the petitioner are able to look after his ailing mother. 6. After perusal of the relevant orders and the police report & the medical certificate we find force in submission of learned counsel for the petitioner that the police, Respondent No 3 as well as Respondent No 1 completely missed medical certificate dated 12.8.2011 Exhibit-C discloses that mother of the papeal697etitioner is suffering from ailment and the same needs evaluation and for treating same she may require surgery. The learned counsel was very much right in submitting that without any material either in the shape of statement of the doctor or any certificate given that mother of the petitioner is well, the said authorities could not have reached to such conclusion. 7. Similarly, perusal of the police report also supports further submission of learned counsel for the petitioner that said report within itself reveals that three brothers of the petitioner are married and they are working for gain and residing along with their family in Bombay and as such there is nobody else at Pali, Rajasthan to look after ailing mother of the petitioner excepting his old father. She was also right in submitting that averments to such effect made in the petition has remain uncontroverted. 8. She was also right in submitting that averments to such effect made in the petition has remain uncontroverted. 8. The perusal of order dated 24th August, 2009 at annexure "A" passed in Criminal Writ Petition No.265 of 2009 to which our attention was invited by Learned Counsel for the petitioner also supports her further submission that rejection of the prayer for parole made by the petitioner in the year 2009 by the Divisional Commissioner on the count of petitioner having overstayed after grant of parole, in the year 2005 and 2007 was set aside by this court. The learned A.P.P. was not able to controvert further submission canvassed that thereafter the Divisional Commissioner had granted parole to the petitioner for the reason of illness of his mother & after availing same the petitioner has duly surrendered in time in the prison. The same also justifies her further submission that hence rejection of an parole to the petitioner on the same ground cannot be sustained. 9. In the aforesaid premises we find all the merit in her submission that none of the reasons given by the Respondents No 1 and 3 in order respectively passed by them justifies rejection of prayer for parole. Similarly we are unable to accept the submission of Learned APP that the prayer for rejection of an parole was warranted for the reasons advanced by Respondent No 1 and 3 after consideration of the relevant material. On the contrary we find that there was no application of mind on part of the said authorities to the relevant aspects connected with the reasons given by them for rejection of the prayer for parole. Needless to add in said state of affairs the order of rejection of the prayer for parole made by them cannot be sustained and the same would be required to be quashed and set aside. 10. The perusal of the decision of five Judges of the Apex Court in the case of Sunil Fulchand Shah Vs. Union of India and Ors. reported in (2003) 3 Supreme Court Cases 409 and particularly matter stated in paragraph no.29 to the effect : "29. 10. The perusal of the decision of five Judges of the Apex Court in the case of Sunil Fulchand Shah Vs. Union of India and Ors. reported in (2003) 3 Supreme Court Cases 409 and particularly matter stated in paragraph no.29 to the effect : "29. Thus, parole, stricto sensu may be granted by way of a temporary release as contemplated by Section 1291) or section 12(1-A) of COFEPOSA by the Government or its functionaries, in accordance with the parole rules of administrative instructions, framed by the Government which are administrative in character and shall be subject to the terms of the rules or the instructions, as the case may be. For securing release on parole, a detenu has, therefore, to approach the Government concerned or the jail authorities, who may impose conditions as envisaged by section 12(2) etc. and the grant of parole shall be subject to those terms and conditions. The courts cannot generally speaking exercise the power of grant temporary release to detenus, on parole, in cases covered by COFEPOSA during the period and order of detention is in force because of the express prohibition contained in subsection (6) of section 12. Temporary release of a detenu can only be ordered by the Government or an officer subordinate to the Government, whether Central or State. I must, however, add that the bar of judicial intervention to direct temporary release of a detenu would not affect the jurisdiction of the High Courts under Article 226 of the Constitution or of this Court under Article 32, 136 or 142 of the Constitution to direct the temporary release of the detenu, where request of the detenu to be released on parole for a specified period, has been, in the opinion of the Court, unjustifiably refused or where the interest of justice such an order of temporary release is required to be made. That jurisdiction, however, has to be sparingly exercised by the Court and even when it is exercised, it is appropriate that the Court leave it to the administrative or jail authorities to prescribe the conditions and terms on which parole is to be availed of by the detenu." (emphasis supplied) and particularly the aforesaid emphasis portion from the same pointed by Learned Counsel for the petitioner supports her submission that in the said case while considering the question whether the period of parole granted by The High Court to detenu under COFEPOSA Act is required to be excluded while computing the period of detention the apex court has ruled that in the petition under Article 226 this court is empowered to grant the parole in the exceptional cases when the request for release on parole is for specified reason and/or for specified period and has been in the opinion of the court, unjustifiably refused. 11. The perusal of the decision in a case of Manjulabai K.Gulabe Vs. State of Maharashtra reported in 2002 ALL MR (Cri.) 1720 and unreported decision in Criminal Writ Petition No.1162 of 2009 dated 15th January 2010 to which our attention was invited also supports her submission that then parole was granted by this court rather than remitting the matter back to the authority prescribed for grant of parole for reconsideration as rejection of parole by the authority was found unjustifiable. 12. In light of the said observations of the apex court pointed out by Learned Counsel for the petitioner and after taking into consideration the prolong period for which the prayer for parole has remain to be upheld for unjustified reasons and particularly one of such reason given for refusal, on the earlier occasion being set aside by this court and the purpose for which the parole is sought we are of considered view that no useful purpose would be served in remitting the matter back to the concerned authorities for reconsideration as we are afraid that on the contrary the same may result in adding defeating the cause and/or the purpose for which the provision for parole has been made. 13. 13. As a net result aforesaid we set aside the impugned order dated 3rd February, 2012 passed by respondent no.1 refusing parole to the petitioner and direct respondent no.3 to release the petitioner on parole leave for the period as permissible under the rules & regulations and subject to imposing the necessary conditions for securing back the presence of the petitioner after the period for parole is over. 14. Rule made absolute in aforesaid terms.