JUDGMENT
D.D. Sinha, J.
1. Rule returnable forthwith. Heard finally by the consent of Dr. Mrs. R.K. Shastry, Adv. for the petitioner and Mr. T.A. Mirza, A.P.P. for the respondents.
2. This Criminal Writ Petition is directed against the order dt. 24-4-2007 passed by the competent Authority whereby the application of the petitioner for grant of parole leave came to be rejected on the basis of the adverse police report in view of the Rule 4(4) of the Prison (Bombay Furlough and Parole) Rules, 1959 hereafter referred to as “the 1959 Rules”. Learned Counsel for the petitioner has submitted that the petitioner forwarded the application for grant of parole leave on account of illness of his son namely Sandeep Sahebrao Juwari through the Superintendent of Prison to the competent Authority i.e. Divisional Commissioner, Nagpur Division, Nagpur on 1-12-2006. It is contended that, at the relevant time, the son of the petitioner has suffered fracture of right hand and since he was in need of proper medical help, the petitioner had applied for grant of parole leave in view of Rule 19 of the 1959 Rules. Counsel for the petitioner further contended that the ailment of son of the petitioner was of a serious nature and the petitioner, in view of provisions of Rule 19, was entitled to be released on parole leave, however, the competent Authority took more than four months to decide the application of the petitioner and finally rejected the same vide impugned order dt. 24-4-2007. It is submitted that though the son of the petitioner somehow managed to recover from the ailment without any help of the petitioner within four months, however, this has not only caused great prejudice to the petitioner but the delay in deciding the application by the competent Authority has resulted in miscarriage of justice.
3. The counsel for the petitioner has submitted that the application dt. 1-12-2006 submitted by the petitioner for grant of parole leave was accompanied by Certificate dt. 13-9-2006 issued by Dr. Vilas Dhage; however, the procedure undertaken by the Authorities took long time and therefore, the purpose and cause for which the application for grant of parole leave was made was frustrated.
4. Counsel for the petitioner further contended that the impugned order is completely silent in respect of ailment of son of the petitioner and the application of the petitioner for grant of furlough leave came to be rejected only on the basis of adverse police report in view of Rule 4(4) of the 1959 Rules, which further shows non-application of mind by the competent authority in respect of the grounds mentioned by the petitioner in the application for grant of parole leave.
5. Mr. T.A. Mirza, Additional Public Prosecutor has contended that though the application of the petitioner for grant of parole leave is dt. 1-12-2006 and was received by the competent Authority through proper channel, however, medical certificate dt. 13-9-2006 issued by Dr. Vilas Dhage was not annexed with the application, as alleged by the learned Counsel for the petitioner and therefore, the contentions canvassed by the counsel for the petitioner in this regard are not sustainable.
6. The Additional Public Prosecutor has further contended that, on the basis of verification of the concerned record, it is revealed that the only application which was received by the competent Authority was application dt. 19-2-2007 and medical certificate dt. 6-1-2007 was annexed with the said application. It is submitted that the medical certificate shows that the son of the petitioner namely Sandeep Sahebrao Juware is required to undergo regular operation for removal of appendix along with cyst. The Additional Public Prosecutor further states that, as per the provisions of Rule 4(4), the police report is obtained by the competent Authority and since the same was adverse to the petitioner, the competent Authority has rejected the application of the petitioner for grant of parole leave vide order dt. 24-4-2007. In the circumstances, the Additional Public Prosecutor states that the Criminal Writ Petition deserves to be dismissed.
7. We have considered the contentions canvassed by the respective counsel and perused the provisions of Rule 19. Before we consider the issue in question, it will be appropriate to consider these provisions of 1959 Rules. Rule 19 of the 1959 Rules contemplates that a prisoner will be released on parole for such period as the competent Authority in its discretion may order, in case of serious illness, or death of any member of the prisoner’s family or of his nearest relatives, or pregnant woman prisoner for delivery or for any other sufficient cause. It is, therefore, evident that the following are the contingencies on the basis thereof the prisoner is entitled to seek parole leave. Those are:
1. Serious illness,
2. Death of any member of the petitioner’s family or his nearest relative.
3. Pregnant woman prisoner for delivery (except high security risk of the petitioner).
4. For any other sufficient cause.
8. Rule 22 of the 1959 Rules deals with the procedure required to be followed by the Authority after receipt of application, which reads thus:
22(1) Any prisoner desiring to be released on parole shall ordinarily submit his application (in triplicate) in Form D appended to these rules to the Superintendent of Prison who shall endorse his remarks thereon and submit one copy direct to the Government Authority along with the nominal roll of the prisoner and the other to the District Superintendent of Police of the district in which the prisoner proposes to spend his parole period and to the Commissioner of Police if such place is in Greater Bombay.
Note.–Prisoner who apply for parole on false grounds or who abuse the concession or commit breach of any of the conditions of parole are liable to be punished under Section 51-B of the Prisons Act, 1894, as applicable to the State of Bombay.
(2) The District Superintendent of Police concerned or the Commissioner of Police, Bombay, as the case may be, shall immediately make enquiries to ascertain whether the ground or grounds on which parole is applied for is or are genuine and submit immediately his report to the Competent Authority mentioning inter-alia whether it recommends the grant of parole and also whether there is a likelihood of breach of peace if the prisoner is released on parole.
9. Sub-rule 2 of Rule 22 makes it obligatory on the part of the District Superintendent of Police or Commissioner of Police, as the case may be, to make enquiries and ascertain whether the ground on which parole is applied for is or are genuine and are required to submit report in this regard to the competent Authority immediately, mentioning therein whether they recommend grant of parole. The District Superintendent of Police is also expected to mention in the said report, if the prisoner is released on parole, whether it would result in breach of peace.
10. In the backdrop of the above referred facts, it will be appropriate to consider as to whether the procedure which is stipulated under Rule 22 has been followed by the competent Authority while passing the impugned order dt. 24-4-2007 whereby the application of the petitioner for grant of parole leave came to be rejected.
11. In the instant case, the claim of the petitioner that he submitted the application dt. 1-12-2006 for grant of parole leave to the competent Authority on account of illness of his son (fracture of right hand) is concerned, it appears that the competent Authority has not received such application which is evident from the categorical statement made by Mr. Mirza, learned Additional Public Prosecutor in this regard and therefore, it is not necessary for us to adjudicate upon this aspect of the matter.
12. However, it is not in dispute that the competent Authority had received the application of the petitioner dt. 19-2-2007 on 8-3-2007 whereby the petitioner sought parole leave on the ground of illness of his son namely Sandeep Jaware. The said application was also accompanied by the medical certificate of doctor dt. 6-1-2007. It is not in dispute that, as per the opinion expressed by the doctor, the son of the petitioner was required to undergo operation for removal of appendix and cyst and therefore, the petitioner vide application dt. 19-2-2007 applied for grant of parole leave to the competent Authority.
13. As per the requirement of Sub-rule (1) of the Rule 22, it was incumbent for the concerned Superintendent of Prison to forward copy of the application of the petitioner to the competent Authority along with nominal roll of the prisoner and one copy to the District Superintendent of Police of the district in which the prisoner proposed to spend time while on parole leave.
14. After receipt of application it was obligatory on the part of the District Superintendent of Police to make enquiries in order to ascertain whether the ground on which parole is applied for is a genuine ground and to submit report in this regard to the competent Authority without lapse of time. Said report also must contain as to whether release of the petitioner shall result in breach of peace. The procedure mentioned in Rule 22 is statutory in nature and is required to be followed strictly by the concerned Authorities.
15. After submission of report by the District Superintendent of Police to the competent Authority, the competent Authority is expected to apply its mind to the said report and it is only after proper application of mind, the competent Authority is expected to pass an order allowing or rejecting the application submitted by the prisoner for grant of parole leave. It is well settled that if the Authority is rejecting the application it must do so by passing reasoned order and the reasons must be reflected in the order itself. It is also well settled that if the order does not show reasons, in that event, the reasons mentioned in the affidavit filed by the Authorities in the Court shall not render the order sustainable in law nor can it give legitimacy to the order passed by the competent Authority which is without rea-son/s.
16. It is difficult for us to turn nelson’s eye to the object and the purpose for which Rules 19 and 22 are evolved by the Legislature. Looking to the contingencies which are mentioned in Rule 19, which entitle the prisoner to avail parole leave, it is obligatory on the part of the competent Authority to process the application received from the prisoner for grant of parole leave at its earliest by following the procedures contemplated under Rule 22. Any unreasonable delay in passing the order would not only frustrate the object of Rule 19, but the same shall also result in miscarriage of justice to the prisoner. Similarly, if the application for grant of parole leave is made by the prisoner on the ground of serious illness of his nearest relative (in the case in hand-‘son’), it is obligatory on the part of the competent Authority to consider this aspect and give reasons as to whether the ground of serious illness mentioned in the application is genuine or false and it is only thereafter it will be appropriate for the competent Authority to grant or refuse the request made by the prisoner for releasing him on parole leave. The competent Authority cannot altogether ignore this aspect and if, without giving any reasons in this regard, reject the application of parole leave of the prisoner only on the ground of adverse Police report, such order, in our view, would result in non-application of mind and cannot be sustained in law. However, we do not want to convey that the competent Authority in a given case is not empowered to reject the application of the prisoner for grant of parole leave on the basis of adverse police report. However, the order which does not refer to the ground on which parole leave is asked for would result in non-application of mind. In the instant case, the impugned order is completely silent in respect of illness of son of the petitioner, which is the ground on which parole leave is asked for. The impugned order, therefore, suffers from non-application of mind and cannot be sustained in law.
17. For the reasons stated hereinabove, the order dt. 24-4-2007 is hereby quashed and set aside. The matter is remanded back to the competent Authority for re-consideration of the request of the petitioner for grant of parole leave. The competent Authority is expected to give reasons as to whether the ground of serious illness mentioned in the application is genuine or otherwise. Similarly, the competent Authority is also expected to take into consideration as to whether release of the petitioner would result in breach of peace. We expect the competent Authority to complete the entire exercise by passing final order as early as possible and in any case, not beyond the period of two weeks from the date of receipt of this judgment.
18. The Registrar (Judicial) is directed to forward copy of this judgment to the Inspecr tor General of Prisons, Maharashtra State, who is further directed to circulate copies of this judgment to all the Superintendents of Prisons for necessary compliance as well as competent Authorities, who have jurisdiction to decide applications of the prisoners for grant of parole leave. The rule is made absolute in the above terms. No order as to costs.