Anil Vishwanath Pathwe vs D.I.G. Prison
2011 Latest Caselaw 28 Bom

                                        1                                   169511-1


     vgm




                                                                          
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION




                                                  
              CRIMINAL WRIT PETITION NO. 1695 OF 2011




                                                 
     Anil Vishwanath Pathwe,                                ]
     Convict No. 14796, presently lodged                    ]
     at Yerwada Central Prison, Circle I/6, Yerwada,        ]
     Pune 411 006                                           ]          ...Petitioner




                                     
                  V/s.   
     1. D.I.G. Prison, Western Region, Pune                 ]
                        
     2. State of Maharashtra                                ]
     (through the Superintendent, Y.C.P., Pune 06)          ]     ...Respondents

Mr. Arfan Sait, amicus curiae, for the Petitioner

Mrs. M.H. Mhatre, A.P.P., for the State

CORAM: A.M. KHANWILKAR AND

P.D. KODE, JJ DATE : NOVEMBER 9, 2011.

JUDGMENT (PER A.M. KHANWILKAR, J.):-

Heard learned amicus curiae as well as learned A.P.P.

2 169511-1

2. Rule. Rule is made returnable forthwith by consent. The

learned A.P.P. waives service for the State.

3. As short question is involved, the petition is taken up

forthwith for final disposal.

4. This letter-petition is received through jail.

5. The petitioner has been convicted and sentenced to

undergo life imprisonment in connection with offence punishable under

Sections 302 and 498 of the Indian Penal Code. The petitioner was

arrested on 17th November, 2005 in connection with the said case, and

is in jail since then. It is stated that, in 2007, the petitioner had applied

for furlough leave. That application was granted on condition that the

petitioner must furnish cash security and surety of Rs.10,000/- each.

The petitioner filed Writ Petition, being Criminal Writ Petition No.

2581 of 2008, for dispensing with the condition so imposed for release

on furlough leave. In the said Writ Petition, it was ordered that the

petitioner be released on offering personal bond of Rs.10,000/- and a

surety in the like amount by two persons vide order dated 2nd February,

2009. It is stated that, at the relevant time, the uncle of the petitioner

3 169511-1

was willing to stand as his surety. He, however, expired in the year

2009. The petitioner does not have any other relative, who can stand

surety for him. His father and mother are also lodged in jail in

connection with the same offence. In this backdrop, the petitioner has

prayed that he be released on furnishing cash surety of amount of Rs.

5,000/-, which he has earned while working in prison. The petitioner

has asserted that other prisoners involved in similar offences have been

released on offering cash surety. The petitioner has given undertaking

that he would return to prison as soon as his furlough period is over.

According to the petitioner, considering the fact that his parents are

lodged in jail, there is no likelihood of the petitioner absconding and

fleeing from the ends of justice.

6. As the petition was received through jail, Mr. Arfan Sait

was appointed as amicus curiae to assist the Court as well as to

espouse the cause of the petitioner. The learned amicus curiae submits

that the request made by the petitioner is very reasonable, and ought to

be granted. To buttress his submissions, he has relied on the decisions

of Single Judges of this Court in the cases of Bhimrao Nathuji Bhoyar

v. Superintendent, Amravati Central Prison - 2003 Bom.C.R. (Cri.)

477, Dipak Hari Kivkalwar v. State of Maharashtra & Anr. - 2003

4 169511-1

Bom.CR. (Cri.) 480, unreported orders of the Division Benches of this

Court in Ramnath Rambachan Gupta v. State of Maharashtra, being

Writ Petition No. 2515 of 2004, decided on 7th March, 2006, Rahul

Damu Salve & 2 Ors. v. The Deputy Inspector General of Prison,

Pune, & 2 Ors., being Criminal Writ Petition No. 1225 of 2007,

decided on 7th September, 2007, Harichandra Gajaba Ingle v.

Superintendent, Central Prison, Aurangabad (through State), being

Criminal Writ Petition No. 461 of 2008 (Aurangabad Bench), decided

on 20th August, 2008, Sominath S/o. Harishchandra Ingle, v. The

State of Maharashtra & Ors., being Criminal Writ Petition No. 837 of

2008, and connected petitions (Aurangabad Bench), decided on 5th

January, 2009. In addition, reliance is placed on the decision of Full

Bench of the Gujarat High Court in the case of Natia Jiria v. State of

Gujarat & Ors. - 1984 Cri.L.J. 936. The dictum in this judgment has

been followed by the learned Single Judge of our Court in Bhimrao

Nathuji Bhoyar's case (supra).

7. The respondents have resisted this petition by filing reply

-affidavit of Sharad Wamanrao Khatavkar, Superintendent, Yerwada

Central Prison, Pune, dated 9th August, 2011. The facts asserted by the

petitioner have been reiterated by the respondents in the reply-affidavit.

5 169511-1

The relief prayed by the petitioner is resisted on the sole point that

Rule 6 of the the Parole and Furlough Rules, 1959 (hereinafter referred

to as "the said Rules") mandates that the prisoner must provide surety

as one of the conditions for being released on furlough leave. For that

reason, it is not possible to dispense with the condition of furnishing

surety. In addition, the learned A.P.P. brought to our notice that the

cash amount standing to the credit of the petitioner for the work done

by him while in jail is only Rs.1,700/-. That is a very meagre amount

to release the petitioner on furlough leave without any other security or

surety. The respondents have expressed apprehension that the

experience shows that large number of prisoners, who are released on

grant of parole and furlough, have gone absconding, and have not

returned to jail. From the figures furnished by the Office of the

Additional Director General of Police and Inspector General of Police

(Prisons), Maharashtra State, Pune, it appears that 410 prisoners

released on parole and 409 prisoners released on furlough did not

return to jail, and these numbers are not only fluctuating but also on the

rise. In that view of the matter, it is submitted that merely offering

cash security, that, too, of meagre amount of Rs.1,700/- and personal

bond will not be sufficient.

6 169511-1

8. After having gone through the documents on record and

the rival submissions, it is not in dispute that the Appropriate Authority

has had ordered release of the petitioner on furlough leave vide order

dated 10th July, 2008 on condition of furnishing cash security and

surety. As the petitioner was not in a position to comply with the

condition, he filed Writ Petition in this Court, being Criminal Writ

Petition No. 2581 of 2008. The said Writ Petition was disposed of on

2nd February, 2009 by directing release of petitioner on furnishing

surety of personal bond of Rs.10,000/- and surety in the like amount by

two persons. However, the petitioner was not in a position to even

fulfil this stipulation. Accordingly, the petitioner has again approached

this Court by way of this Letter Petition through jail, praying for

relaxation of requirement of furnishing two sureties and instead

accepted cash surety of Rs.5,000/-. Indeed, the respondents, relying on

Rule 6 of the said Rules, may be justified in contending that furnishing

surety as condition for release on furlough is indispensable.

9. However, the learned amicus curiae has invited our

attention to the exposition of the Full Bench of Gujarat High Court,

which had occasion to interpret this very rule. The Full Bench of the

Gujarat High Court in Natia Jiria's case has opined that the

7 169511-1

requirement of Rule 6 is also embodied in Rule 10. Rule 10 bestows

discretion in the Sanctioning Authority to grant furlough to prisoner,

subject to his executing a personal bond or giving cash security in Form

C appended to the said Rules and also subject to a surety executing a

bond in Form A appended to the said Rules, if so required. This has

been construed to mean that two things that have to be done under Rule

10 to enable release to be ordered are (a) personal bond or cash security

in Form C and (b) surety bond in Form A. It is held that the former

requirement can be fulfilled by the prisoner by executing a personal

bond, but, in respect of a prisoner, who is expected to furnish cash

security, the Sanctioning Authority insists upon such cash security, it

will be an erroneous, improper and unfair exercise by it. It went on to

observe that it will be equally unfair if, despite the circumstances

eloquently speaking to the impecunious situation of the prisoner, the

Sanctioning Authority insists on proof of it. It held that the person in

prison is under a great disadvantage, and particularly so, if he has no

friends or competent relatives to help him out. It went on to observe

that in that case there is no reason why when the prisoner pleads his

poverty, and if there is no material to disbelieve his case of poverty, the

Sanctioning Authority should not accept it in the normal course and

release him on his personal bond. The Court went to the extent of

8 169511-1

observing that the words occurring in Rule 10 "if so required" cast a

duty and obligation on the Sanctioning Authority to consider whether

the case requires waiver of the insistence of the execution of a surety

bond. Further, the appropriate justification for such waiver would be

where a person is, by reason of his penury and his absence of influence

in society, unable to furnish a surety bond.

10.

The Single Judge of our High Court, in the case of

Bhimrao Nathuji Bhoyar (supra), has followed the dictum of the Full

Bench of the Gujarat High Court. The other decision of our High

Court of Single Judge has also followed the same principle. The other

unreported orders of the Division Bench of our High Court have not

adverted to the Gujarat High Court decision though granted relief to the

petitioners before them.

11. Be that as it may, we are in agreement with the opinion of the

Full Bench of the High Court. There is no difficulty in accepting the

principle that harmonious construction of Rules 6 and 10 is necessary.

If done, it would appear that the Sanctioning Authority has discretion

to impose such conditions as it may deem it appropriate to be fulfilled

by the prisoner for availing the furlough leave. As discretion is

9 169511-1

bestowed on the Competent Authority to dispense with the requirement

of furnishing of surety in exceptional cases, in our opinion, however,

that discretion will have to be exercised, keeping in mind not only the

welfare of the prisoner but also the larger public interest. The

discretion to be exercised by the Sanctioning Authority of dispensing

with the requirement of furnishing surety by the prisoner can, however,

be only in exceptional cases and not as a rule. Even in those

exceptional cases, the Sanctioning Authority has to be satisfied and

must record reasons as to why in its opinion the requirement of

furnishing surety deserves to be dispensed with in the facts and

circumstances of that case and secondly, whether the other conditions

imposed on the prisoner for release will be sufficient to secure his

return to jail for undergoing the remaining sentence, and that he would

not abscond or flee from the ends of justice and defeat the order of

conviction and sentence passed by the Court of competent jurisdiction

operating against him. Thus, the fact that the prisoner is unable to

furnish surety, per se, cannot be the sole basis to exercise discretion in

favour of the prisoner. It is well-established position that the individual

rights must yield to the interest of the community.

10 169511-1

11. Even though the learned amicus curiae may be justified in

pointing out that, in the past, the Single Judges as well as Division

Benches of this Court have ordered release of the concerned prisoners,

we are not inclined to do so, as, in our considered opinion, if it is the

discretion of the Competent Authority to dispense with any condition

specified by the Rules in a given case, it is for that Authority to

examine all aspects of the matter, and record its satisfaction in that

behalf by a speaking order. Moreso because under the Rules, that order

will be amenable to appeal, where, the prisoner will get opportunity to

assail the correctness of the reasons recorded by the Authority, if

required. Besides, it will ensure that, if the Competent Authority

exercises discretion in favour of any prisoner, it would be obliged to

record reasons, firstly, as to the justification for treating the case on

hand as falling under excepted category and, secondly, to note as to

how the conditions specified in the order would ensure that the prisoner

would return to jail for undergoing his remaining sentence and would

not impair the public interest in any manner.

12. As aforesaid, the learned amicus curiae has invited our

attention to couple of orders passed by learned Single Judges as well as

the Division Benches of this Court where the Court itself directed

11 169511-1

release of the concerned prisoners. We are not inclined to follow that

course. In our considered opinion, it is for the Sanctioning Authority to

record satisfaction on material aspects, and in particular, on issues

noted by us hitherto.

13. As a result, even though the petition may succeed, the

operative order would be limited to setting aside the order of the

Competent Authority imposing condition to furnish surety as condition

for release on furlough. Instead, the petitioner will be relegated before

the Competent Authority for re-consideration of that issue on its own

merits, taking into account all aspects of the matter in the light of

observations made by us in this decision. All questions are left open to

be considered on their own merits, in accordance with law. The

Competent Authority shall re-consider the proposal of the petitioner

regarding the conditions to be imposed on the petitioner for his release

on furlough leave. That issue be decided as expeditiously as possible,

and decision be taken, which shall be communicated to the petitioner

not later than four weeks from today.

14. The Writ Petition is disposed of on the above terms.

12 169511-1

15. The Court expresses a word of gratitude for able

assistance given by the learned amicus curiae.

16. Copy of this order be forwarded to the petitioner, who is

in jail, for information.

     P.D. KODE, J.                                A.M. KHANWILKAR, J.