Baba Tukaram Gaikwad vs The State Of Maharashtra And Ors
2016 Latest Caselaw 5683 Bom

Sherla V.



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                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION




                                                                                        
                             CRIMINAL WRIT PETITION NO.3182 OF 2016

            Baba Tukaram Gaikwad                                ... Petitioner




                                                                
                  Vs.

            The State of Maharashtra & Ors.                     ... Respondents




                                                               
            Ms.Harjeet Kaur Bjhagwant Singh, for the Petitioner
            Mr.H.J. Dedia, APP, for Respondent - State




                                                       
                                                CORAM: SMT. V.K. TAHILRAMANI &
                                           ig          MRS.MRIDULA BHATKAR, JJ.

DATE: SEPTEMBER 29, 2016

ORAL JUDGEMENT (PER SMT.V.K. TAHILRAMANI, J.):

1. Heard both sides.

2. Rule. By consent, Rule is made returnable forthwith.

3. The petitioner preferred an application for furlough on 31.1.2016.

The said application came to be rejected by order dated 31.3.2016. Being

aggrieved thereby, the petitioner preferred an appeal. The appeal was

dismissed by order dated 18.6.2016, hence, this petition.

4. The application of the petitioner for furlough came to be rejected

mainly on the ground that on 1.12.2009, the petitioner was released on

parole for a period of 30 days. The petitioner did not report back to the

prison in time and there was overstay of 61 days. On 13.4.2011, when the

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petitioner was released on furlough for 14 days, he did not report back to

the prison in time and there was overstay on his part of 32 days in

reporting back to the prison. Despite the fact that twice there was overstay

on the part of the petitioner on 14.11.2012, the petitioner was released on

parole for a period of 30 days and the said period was extended by a

period of 60 days. Despite the fact that the parole period was extended

and the petitioner was granted parole for a total period of 90 days, the

petitioner did not report back to the prison in time and he absconded. The

petitioner had to be ultimately traced and arrested by the police and

brought back to the prison. There was overstay of 133 days. In view of

these facts, it was apprehended that if the petitioner is again released on

furlough, he will not report back to the prison in time. Looking to the past

conduct of the petitioner, it cannot be said that the apprehension of the

authorities is unfounded.

5. Reliance was placed on a decision of a learned Single Judge of this

Court in the case of Santosh vs. Superintendent, Central Prison,

Amravati1. In the said decision, it was held that prisoners as of right are

entitled to furlough leave on furnishing appropriate and competent surety

and application for furlough cannot be rejected on the ground that the

prisoner had surrendered late in the past especially when punishment was

imposed on the prisoner by way of deducting remission in the ratio of 1:5.

1 2003 (4) Mh.L.J. 349

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6. First of all, the decision in the case of Santosh vs. Superintendent,

Central Prison, Amravati (supra) has been rendered by a Single Judge this

Division Bench would not be bound by the said judgment. Even

otherwise, the Supreme Court in the case of State of Maharashtra vs.

Suresh Pandurang Darvakar2, has observed " ...... but release on furlough

cannot be said to be an absolute right of the prisoner as culled out from

Rule 17". Rule 17 reads as under:

17. "Nothing in these rules shall be construed as conferring a legal right

on a prisoner to claim release on furlough".

7. We are bound by the decision of the Supreme Court. The Supreme

Court has clearly stated that a prisoner is not entitled to furlough leave as

of right. It is seen that the petitioner time and again, has abused the

privilege granted to him of being released on parole or furlough. Despite

the fact that on two occasions, he had overstayed, on the 3 rd occasion i.e.,

on 15.11.2012, the petitioner was released on parole. He was initially

granted parole for 30 days which period was extended by another 60

days. After 90 days, the petitioner ought to have surrendered to the

prison. However, the petitioner absconded as stated above. He was

ultimately traced and arrested by the police and brought back to the

prison. Looking to this conduct of the petitioner, we are not inclined to

2 AIR 2006 SC 2471

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interfere. However, if the petitioner prefers a fresh application, the same

to be considered by the authorities on merits.

8. Rule is discharged accordingly.

         (MRIDULA BHATKAR, J.)                         (V.K. TAHILRAMANI, J.)