1. By way of the present application, the applicant has prayed for releasing him on parole leave on the ground of sickness of his father and has also challenged the order passed by the Inspector General (Prisons) dated 01.08.2011 by which the application of the applicant for parole leave was rejected on the ground that the appeal filed by the applicant-convict is pending before the Hon'ble Supreme Court and it has no jurisdiction.
2. I have heard Ms. Chetna Shah, learned APP for the respondent State. She has produced a copy of the order dated 31.08.2009 passed by the Hon'ble Supreme Court in Special Leave to Appeal (Criminal) No.3749 of 2009 which is filed by the present applicant-convict. She has also relied upon the judgment reported in the case of (The) State of Gujarat Vs. Jayantilal Maganlal Patel, reported in 1995 (2) GLH 260, wherein it has been held that a person can be released on parole leave if he is convicted and no appeal is pending before any Court. It has been further held that the Appellate Court, which is in seisin of the matter, is empowered under Section 389 of the Code of Criminal Procedure, 1973 to pass appropriate orders like granting him temporary bail/suspension of sentence during pendency of the appeal.
3. In the present case as stated hereinabove, the appeal is pending for final hearing before the Hon'ble Supreme Court and therefore, the applicant is not entitled for any parole leave under the Prisons (Bombay Furlough and Parole) Rules, 1959.
4. It is reported that the present applicant has preferred Special Criminal Application No.2294 of 2011 praying for releasing him on parole leave was dismissed by this Court (Coram: Z.K. Saiyed, J.) on 30.09.2011.
5. In view of the above provisions of Section 389 of the Code of Criminal Procedure as well as the Prisons (Bombay Furlough and Parole) Rules, 1959, this application is required to be dismissed and is hereby dismissed.
6. However, it would be open for the applicant to prefer an application before the Hon'ble Supreme Court for temporary bail.
[A.J.DESAI, J.] mrpandya Top