cwp112.16 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL WRIT PETITION NO. 112 OF 2016
Arun s/o Gulab Gawli,
C/8535, aged about 64 years,
r/o Gitai Society, Dagdi Chawl,
Baburao Jagtap Marg,
Byculla (W), Mumbai - 11.
presently at Nagpur
Central Prison, Nagpur. ... PETITIONER
Versus
1. Deputy Inspector General
(Prisons)(East), Nagpur.
2. The Superintendent,
Central Prison, Nagpur.
3. Deputy Commissioner of Police,
Zone-3, Bawla Compound,
Byculla, Mumbai 400 027. ... RESPONDENTS
Shri A.S. Mardikar, Senior Advocate with Shri Mir Nagman Ali,
Advocate for the petitioner.
Shri S.B. Ahirkar, APP for the respondents.
.....
CORAM : B.P. DHARMADHIKARI &
V.M. DESHPANDE, JJ.
MARCH 02, 2016.
ORAL JUDGMENT : (PER V.M. DESHPANDE, J.) Rule. Rule is made returnable forthwith and heard finally with the consent of parties.
2. Shri Mardikar, Senior Advocate with Shri Mir Nagman ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 07:30:25 ::: cwp112.16 2 Ali, learned counsel for the petitioner submitted that the impugned action cannot stand to the scrutiny of law in view of the fact that there is no foundation to the adverse police report.
3. Shri Ahirkar, learned Additional Public Prosecutor for the respondents, supported the impugned order and also submitted on the basis of the reply filed on behalf of respondent No. 2, that the nature of police verification report is adverse and the petitioner is a prime member of a Mumbai Based Notorious criminal gang.
4. It is not in dispute that the petitioner is in jail after his conviction dated 31.08.2012. At no point of time, he is released on furlough. On the last occasion, when he applied for parole leave, his prayer was rejected and, therefore, he was required to approach this Court by filing Criminal Writ Petition No. 364 of 2015. The said writ petition was opposed by the State by pointing out that the petitioner being a prime member of criminal gang, there is a possibility that the petitioner may commit cognizable offence.
5. However, perusal of the order passed by this Court shows that the learned Additional Public Prosecutor, upon instructions, made a statement before this Court that for drawing such inference, the respondents do not have any record, after the ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 07:30:25 ::: cwp112.16 3 petitioner's arrest on conviction, which would be adverse to his claim for grant of parole leave. Considering the said statement and noticing that there is no adverse material, the petitioner was released on parole.
6. It is also not in dispute that when the petitioner was availing parole leave, during that period, he has not committed any cognizable offence. Further, after the expiry of parole period, he himself surrendered before the jail authorities. The petition is opposed by the State authorities on the ground that the petitioner is a prime member of Mumbai Based Notorious criminal gang and, therefore, there is an apprehension in the mind of authorities that if he is released on furlough leave, there is a possibility that he may commit a cognizable offence. For such an apprehension, there should be some foundation. Mere apprehension is not sufficient to deny the otherwise entitlement to a convict.
7. In the present case, the reply sans such foundation and no material is placed before this Court in support thereof even during the course of the argument by the learned APP appearing for the authorities.
8. In that view of the matter, criminal writ petition needs ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 07:30:25 ::: cwp112.16 4 to be allowed. Hence, the petitioner is directed to be released on furlough leave by the authorities after due compliances by the petitioner.
9. The petitioner is directed to report Police Station at Agripada, Mumbai, twice a week i.e. on every Tuesday and Saturday between 3.00 and 5.00 PM, during the period he will be availing furlough leave and shall surrender before the Jail Authority after the expiry of furlough period on due date.
10. Writ Petition is allowed. Rule is made absolute accordingly. No order as to costs.
JUDGE JUDGE
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*GS.
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