cwp1687.17
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1687 OF 2017
Ravindra s/o Rakhmaji Aware,
(C-9680) Convict,
Central Prison, Nashik Road,
Aurangabad.
...PETITIONER
VERSUS
1) The State of Maharashtra,
Through the Secretary,
Home Department (Prison),
Mumbai-400005,
2) The State of Maharashtra,
Through I.G.,
Prisons, Pune,
3) The Superintendent,
Central Prison,
Nashik Road, Nashik.
...RESPONDENTS
...
Mr.Rajendra N. Chavan Advocate for Petitioner.
Mrs. P.V. Diggikar, A.P.P. for Respondent
Nos. 1, 2 & 3.
...
CORAM: S.S. SHINDE AND
A.M. DHAVALE, JJ.
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cwp1687.17 2 DATE OF RESERVING JUDGMENT : 18TH DECEMBER, 2017 DATE OF PRONOUNCING JUDGMENT: 21ST DECEMBER, 2017 JUDGMENT [PER S.S. SHINDE, J.]:
1. Rule. Rule made returnable forthwith and heard finally with the consent of learned counsel appearing for the parties.
2. This Petition takes exception to the order dated 26th September, 2017 passed by the Additional Director General of Police and Inspector General of Prisons and Correctional Services, State of Maharashtra, Pune, thereby rejecting the request of the Petitioner to release him on furlough.
3. It is the case of the Petitioner herein that he applied for furlough on 13th February, 2017, however, his application came to be rejected. The appeal filed by the Petitioner has ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:36:27 ::: cwp1687.17 3 been rejected by the impugned order dated 26th September, 2017. In the impugned order passed by the appellate authority, it is observed that as the appeal filed by the Petitioner challenging the conviction and sentence, is pending before the High Court, in view of the Notification dated 26th August, 2016 issued by the Home Department, State of Maharashtra, furlough cannot be granted. Secondly, furlough cannot be granted to the Petitioner in view of the order passed by the High Court in Writ Petition No.4017 of 2016 (Smt. Rubina Suleman Memon vs. The State of Maharashtra and others) Thirdly, furlough is not the right of the convict and fourthly, the Superintendent of Jail has not recommended the case of the Petitioner. Accordingly, by invoking the provisions of Rule 4(11) of the Prisons (Bombay Furlough and Parole) Rules, 1959 (for short "the Rules of 1959), the application of the Petitioner has been rejected.
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cwp1687.17 4
4. There is no denial to the assertion of the Petitioner that the Petitioner, earlier on four times was released on parole and furlough, and on each occasion he reported back to the jail authorities within time. Learned counsel for the Petitioner submits that earlier when the Petitioner was released on parole/furlough, he did not misuse the liberty granted to him.
5. It is submitted by learned counsel appearing for the Petitioner that merely because appeal filed by the Petitioner against conviction and sentence is pending, is no ground to deny him the furlough in view of the orders passed by the Division Bench of the Bombay High Court, Bench at Nagpur, in Criminal Writ Petition No.196 of 2017 and Criminal Writ Petition No.97 of 2017 [Arun s/o Gulab Gawli and another vs. D.I.G.(Prisons) (East) Nagpur and another], and Criminal Writ Petition No.462 of 2017 [Abdul Rajjak Sheikh Abdul Nabi Shah vs. Divisional Commissioner, Nagpur and ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:36:27 ::: cwp1687.17 5 others]. Learned counsel further submitted that the ratio in the case of Smt. Rubina Suleman Memon, supra, is not applicable in the facts of the present case, as the Petitioner therein was convict under the Terrorist and Disruptive Activities (Prevention) Act, 1987 and wife of brother of Yakub Abdul Razak Menon.
6. Learned A.P.P. appearing for the State, referring to the relevant rules submits that, the prayer of the Petitioner to release him on furlough has been rightly turned down after considering the entire earlier record of the Petitioner. Learned A.P.P. further invites our attention to the reasons assigned by the Respondent Authority while rejecting the application of the Petitioner to release him on furlough.
7. We have given careful consideration to the submissions of the learned counsel appearing ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:36:27 ::: cwp1687.17 6 for the Petitioner and learned A.P.P. appearing for the State. While rejecting the application of the Petitioner to release him on furlough, the Respondent Authorities have placed reliance on Rule 4(11) of the Rules of 1959. Rule 4(11) of the Prisons (Bombay Furlough and Parole) Rules, 1959, amended as per the Notification dated 26th August, 2016, reads as under:
"(11) Whose appeal in conviction in Higher Court or any other cases filed against them either by Central Government or any of the State Government in any of the Courts are pending and for which bail is not granted to him/her by the related Courts."
8. We have carefully considered the provisions of Rule 4(11) of the Rules of 1959. Merely because appeal filed by the Petitioner challenging his conviction and sentence is pending before the High Court is no ground to deny the parole/furlough in view of the orders passed by the Division Bench of the Bombay High Court, Bench ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:36:27 ::: cwp1687.17 7 at Nagpur in Criminal Writ Petition No.196 of 2017 and Criminal Writ Petition No.97 of 2017 [Arun s/o Gulab Gawli and another vs. D.I.G.(Prisons) (East) Nagpur and another], and Criminal Writ Petition No.462 of 2017 [Abdul Rajjak Sheikh Abdul Nabi Shah vs. Divisional Commissioner, Nagpur and others], supra.
9. As rightly contended by learned counsel appearing for the Petitioner, the ratio in the case of Smt. Rubina Suleman Memon, supra, is not applicable in the facts of the present case, in as much as the Petitioner therein was convict under the Terrorist and Disruptive Activities (Prevention) Act, 1987, and the Petitioner is not convict under the said Act.
10. In the light of above, the impugned order is quashed and set aside. We direct the Respondents to examine entire earlier record of the case of the Petitioner and release the ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:36:27 ::: cwp1687.17 8 Petitioner on furlough, if otherwise he is eligible for the same, after completion of usual procedural formalities, and shall not deny the same on the grounds/objections mentioned in the impugned order. In any case we direct the respondents to take final decision on or before 25/12/2017.
11. Rule is made absolute in above terms. The Writ Petition stands disposed of, accordingly. [A.M. DHAVALE, J.] [S.S. SHINDE, J.] asb/DEC17 ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 02:36:27 :::