Abdul Habib Abdul Rashid Rathod vs State Of Maharashtra And Ors.
2003 Latest Caselaw 495 Bom

JUDGMENT

S.T. Kharche, J.

Rule. Rule made returnable forthwith.

1. Heard learned Advocate for the petitioner and learned Special Counsel for respondents.

2. Learned Counsel for the petitioner submits that the petitioner has been convicted for the offences punishable under sections 3(1)(i), 3(2), 3(5) and 4 of the M.C.O.C. Act, 1999 by Special Judge, Nagpur vide judgment dated 17th May, 2002 in Special Case No. 1 of 2000 and sentenced to undergo imprisonment for ten years. He contended that the petitioner has filed appeal bearing Criminal Appeal No. 374 of 2002 which is pending in this Court. He contended that the applicant had filed application for grant for furlough leave and the Competent Authority by order dated 16-9-2002 rejected the said application on the ground mentioned under Chapter XXXVII, Rule 4(4) of the Prisons (Bombay Furlough and Parole) Rules, 1959. He contended that brother of the petitioner, by name Mohammed Shabbir, is ready to stand surety and there was no reason for the Competent Authority to reject the said surety. He further contended that no ground exists for refusal to grant furlough leave which is a legal and substantial right of the prisoner and, therefore, the petitioner may be granted furlough leave. He further contended that even the mother of petitioner by name Farida is ready to stand surety who owns house at mouza Shirul, Tahsil Hingna, District Nagpur and the petitioner is not likely to abscond and in such circumstances, petitioner may be ordered to be released on furlough leave on personal bond or cash surety of Rs. 100.00.

3. The learned Special Counsel for respondents does not dispute that the petitioner is convicted for the aforesaid offences and that he is undergoing sentence at Central Prison, Nagpur. He also does not dispute that the application for grant of furlough leave has been rejected by the Competent Authority under Rule 4(4) of the Prisons (Bombay Furlough and Parole) Rules, 1959 framed under Chapter XXXVII of the Prisons Manual. He contended that on the enquiry made by police, it was found that the petitioner is likely to commit breach of public peace and nobody from his locality was ready to give statement against him due to fear and in case he is released on furlough, he is likely to abscond.

4. Learned Special Counsel for respondents further contended that the Police Authorities had held enquiries in respect of the surety by name Mushtaque Ahmed who resides at Bhilai. He contended that P.S.I. G.B. Tamhaskar had visited Bhilai and verified the particulars of address and residence at Bhilai and obtained report from the Additional Superintendent of Police, Durg. P.S.I. Tamhaskar recorded the statements of witnesses and it was revealed that in case the petitioner is allowed to reside at Bhilai with said Mushtaque Ahmed, there is likelihood of breach of peace. Moreover, the surety Mushtaque Ahmed does not own any immoveable property. He contended that in the circumstances, the petition for grant of furlough leave may be rejected.

5. I have carefully considered the contentions canvassed by leaved Counsel for the parties. Chapter XXXVII, Rule 4 of the Prisons (Bombay Furlough and Parole) Rules, 1959, as far as relevant for the present purpose, reads as under:-

"4. When prisoners shall not be granted furlough.---

The following categories of prisoners shall not be considered for release on furlough:-

(1) ........

(2) ........

(3) ........

(4) Prisoners whose release is not recommended in Greater Bombay by the Commissioner of Police and elsewhere, by the District Magistrate on the ground of public peace and tranquillity."

6. Reading of the aforesaid Rule would reveal that if grant of furlough is not recommended by the District Magistrate on the ground of public peace and tranquillity, then the prisoner would not be entitled for grant of furlough leave. In the present case, the Competent Authority had rejected the furlough leave to the petitioner by order dated 16-9-2002 and it appears that the Competent Authority has considered the scope of sub-rule (4) of the aforesaid Rules contained in Chapter XXXVII of the Maharashtra Prison Manual.

7. The Additional Commissioner of Police (Crimes), Nagpur had submitted his report dated 5-9-2002 wherein he has stated that the ground on which the prisoner has sought for furlough leave, is not bona fide; no relation of the prisoner is suffering from serious ailment; on interrogation with the people residing in the locality it was found that nobody is coming forward due to fear of prisoner; the surety i.e. brother of the prisoner does not hold any property and is not competent to stand as surety and if the prisoner is released on furlough leave, he is likely to abscond. The Additional Commissioner, in the circumstances, did not recommend for grant of furlough leave.

8. Thereafter the petitioner had suggested that one Mustaque Ahmed, resident of Bhilai is ready to stand surety for him and said surety is living at Bhilai since last four generations and is holding property. Learned Counsel for petitioner contended that statements of witnesses have not been recorded to show that there is likelihood of breach of public peace and in the circumstances, the petitioner is entitled to be released on furlough leave.

9. What is revealed from the report dated 3-4-2003 submitted by P.S.I. Tamhankar is that the said surety is living in some house since 4-5 months. He is not employed anywhere. The house is not in his name and the prisoner wants to settle the share in the property situated at Nagpur by going to the house of Mustaqe Ahmed, Assistant Commissioner of Police, Crime Branch, Nagpur in his affidavit dated 9-4-2003 has stated that P.S.I. Tamhankar had recorded the statements of Mushtaqe, elder brother of the prisoner and also neighbours of Mustaqe. He had also obtained report from Patwari of the area regarding the title to the property said to have been owned by Mustaque Ahmed and as per the report of Patwari, Mushtaque does not have title over the property since there is no registered sale deed in his favour. P.S.I. Tamhaskar had also obtained report from the Senior Superintendent of Police, District Durg (Chhattisgarh) addressed to the Additional Commissioner of Police (Crime). The Senior Superintendent of Police, Durg has concluded in his report that if the petitioner is allowed to stay at Bhilai with Mushtaque Ahmad, it will disturb the peace.

10. It is thus apparent from the aforesaid factual position that the Assistant Commissioner of Police, Nagpur and the Senior Superintendent of Police, Bhilai do not recommend for grant of furlough leave on the ground of breach of public peace. The petitioner has been convicted for the offences punishable under the provisions of the Maharashtra Control of Organised Crimes Act and if released on furlough, he is bound to commit any offence involving breach of peace and even may abscond. As aforesaid, the petitioner has been convicted for the offences punishable under the provisions of the Maharashtra Control of Organised Crimes Act and the maximum sentence awarded to him on all counts would be rigorous imprisonment for ten years and he is also sentenced to pay fine of Rs. 29 lacs. It is a matter of record that the petitioner has not paid the fine and considering the nature of offences committed by him, it could be said that he is in the category of hardened criminals and not in the category of offenders who commit the offence for the first time. In such situation, if the petitioner is released on furlough, he may commit any offence involving breach of peace and even likely to abscond. In the circumstances, I am of the considered view that the impugned order passed by the Competent Authority is perfectly legal and no interference into the same is warranted.

11. In the result, the petitioner for grant of furlough leave is rejected.