(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 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. 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,